Kimberly Mensie v. City of Little Rock

United States Court of Appeals
For the Eighth Circuit
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No. 18-1074
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Jonathan Jaciel Zazueta
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 15, 2019
Filed: February 22, 2019
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Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Jonathan Jaciel Zazueta, a citizen of Mexico, petitions for review of an order
of the Board of Immigration Appeals (BIA) upholding the decision of an immigration
judge (IJ) finding him removable under the Immigration and Nationality Act (INA),
8 U.S.C. §§ 1101-1537. Having jurisdiction pursuant to 8 U.S.C. § 1252, we deny
the petition.

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Zazueta became a lawful permanent resident of the United States in August
2004. In January 2009, he pled guilty in Iowa state court to possession with intent
to deliver a controlled substance (crack cocaine) in violation of Iowa Code
§§ 124.401(1)(c)(3), 124.206(2)(d), and 703.1. The court deferred judgment and
placed Zazueta on 4 years probation under Iowa Code §§ 901.5 and 907.3. Months
later, an Iowa state court jury found Zazueta guilty of a second offense, second-
degree robbery, in violation of Iowa Code § 711.3. Because the robbery conviction
constituted a violation of Zazueta’s probation from his controlled-substance deferred
judgment, the state court revoked the deferred judgment and probation and sentenced
him to a term not to exceed ten years for that crime.
The robbery conviction was vacated in 2016 due to ineffective assistance of
counsel and dismissed in 2017. Zazueta then moved to vacate his controlled-
substance conviction and reinstate the deferred judgment. While his motion was
pending, the Department of Homeland Security initiated removal proceedings against
Zazueta. The state court judge reinstated his deferred judgment on the controlled-
substance conviction, vacated and set aside the probation revocation and conviction,
allowed the withdrawal of his guilty plea, and dismissed the case. In doing so, the
court emphasized that Zazueta had been “rehabilitated” such that “[c]ontinuing
probation would serve no rehabilitative purpose.” Admin. R. 3, ECF No. 4622584.
Zazueta then moved to terminate his removal proceedings before the IJ,
arguing he no longer had a “conviction” for immigration purposes. The IJ denied his
motion after determining the withdrawal of his guilty plea “was merely a function of
his completion of the deferred judgment[.]” Admin. R. 69. Thus, Zazueta still had
a requisite “conviction” and was removable under the INA as an alien convicted of
an aggravated felony and as an alien convicted of an offense related to a controlled
substance. 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(B)(i). The IJ ordered Zazueta
removed to Mexico.
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Zazueta appealed to the BIA. The BIA dismissed the appeal, agreeing with the
IJ that Zazueta’s 2009 Iowa deferred judgment constituted a “conviction” for
immigration purposes because the judgment was not deferred until after Zazueta pled
guilty to possession of crack cocaine with intent to deliver. The BIA further found
that the deferred judgment was revoked due to Zazueta’s robbery conviction and then
reinstated after the robbery conviction was set aside because Zazueta “had already
served [eight] years in prison, he testified that he had ‘rehabilitated,’ and the court
concluded that ‘[c]ontinuing probation would serve no rehabilitative purpose.’”
Admin. R. 5 (second alteration in original). Because the drug conviction was vacated
for rehabilitative purposes, it remained a “conviction” for immigration purposes.
Accordingly, the BIA affirmed the IJ’s decision.
Because Zazueta does not dispute that a deferred judgment may “constitute[]
a ‘conviction’ for immigration purposes,” Pet’r’s Reply Br. 8, he argues on appeal
that the withdrawal of his guilty plea and vacatur of the deferred judgment have
removed any “conviction” under the applicable immigration statutes.1 We review
such legal determinations by the BIA “de novo, according substantial deference to the
BIA’s interpretation of the statutes and regulations it administers.” Ramirez-Barajas
v. Sessions, 877 F.3d 808, 810 (8th Cir. 2017), cert. denied, 135 S. Ct. 584 (2018) .
“Though we ordinarily review only the BIA’s decision, we also review the IJ’s
decision as part of the final agency action if the BIA adopted the findings or the
1Zazueta also argued that the BIA erred by not considering whether his drug
offense constituted a removable offense. However, in his Reply Brief, Zazueta
conceded that this court lacks jurisdiction to hear that claim because he did not raise
it before the BIA. Reply Br. at 10. Therefore, we need not address the issue. See
Sultani v. Gonzales, 455 F.3d 878, 884 (8th Cir. 2006) (“Failure to raise an issue
before the agency constitutes a failure to exhaust administrative remedies and
deprives this court of jurisdiction to hear the matter.”); United States v.
Hammerschmidt, 881 F.3d 633, 640 (8th Cir. 2018) (declining to discuss an issue
conceded in a reply brief).
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reasoning of the IJ.” Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (internal
quotation marks omitted).
For immigration purposes, a “conviction” is broadly defined as “a formal
judgment of guilt of the alien entered by a court or, if adjudication of guilt has been
withheld, where . . . a judge or jury has found the alien guilty or the alien has entered
a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a
finding of guilt, and . . . the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty.” 8 U.S.C. § 1101(a)(48)(A). “[E]ven in cases where
adjudication is deferred the original finding or confession of guilt is sufficient to
establish a conviction for purposes of the immigration laws.” Mendoza-Saenz v.
Sessions, 861 F.3d 720, 723 (8th Cir. 2017) (quoting Herrera-Inirio v. INS, 208 F.3d
299, 305-06 (1st Cir. 2000)); see also In re Marroquin-Garcia, 23 I&N Dec. 705, 715
(BIA 1997) (noting “conviction” envelops instances where a defendant pleads guilty
and a “judge has withheld a formal adjudication of guilt but has nevertheless imposed
penalties or restraints upon the defendant’s liberty” (internal quotation marks
omitted)). “If a court vacates an alien’s criminal conviction for a reason unrelated to
the merits of the case—such as to avoid immigration consequences or for
rehabilitative reasons—rather than to correct a procedural or substantive defect, the
conviction will still stand for immigration purposes despite its vacatur.” Andrade-
Zamora v. Lynch, 814 F.3d 945, 948 (8th Cir. 2016).
Here, Zazueta’s reinstated deferred judgment qualifies as an immigration
“conviction” under 8 U.S.C. 1101(a)(48)(A) because Zazueta “entered a plea of
guilty” and, in response, the IJ ordered a “restraint on [his] liberty”: deferred
judgment and probation. Furthermore, the reinstatement of the deferred judgment
was not intended “to correct a procedural or substantive defect” in the underlying
offense. Andrade-Zamora, 814 F.3d at 948. The state court’s language makes clear
that its vacatur was grounded in “rehabilitative reasons,” see id., repeatedly
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emphasizing rehabilitation without noting any infirmity in the controlled-substance
charge:
The court cannot ignore the applicant’s testimony that he has indeed
learned that crime does not pay. The court cannot ignore the fact that
the applicant has a committed family and children that would benefit
from his involvement. It is only equitable that the deferred judgment be
reinstated. It is probable that the defendant has been rehabilitated. The
purpose for probation, i.e. rehabilitation, has likely been achieved.
Continuing probation would serve no rehabilitative purpose.
Admin. R. 192.
It is not dispositive that Zazueta brought his claim for withdrawal of his guilty
plea under Iowa Code chapter 822, which he alleges requires legal error. The
language of chapter 822 is broader than Zazueta contends, allowing claims involving
“evidence of material facts, not previously presented and heard, that requires vacation
of the conviction or sentence in the interest of justice.” Iowa Code § 822.2(1)(d).
Furthermore, the state court concluded its order allowing withdrawal of his guilty
plea by citing another statute, Iowa Code § 907.3(1). Admin. R. 193. Zazueta does
not dispute that a deferred judgment under § 907.3(1) “constitutes a ‘conviction’ for
immigration purposes[.]” Pet’r’s Reply Br. 8. Therefore, the BIA did not err in
concluding that Zazueta had a “conviction” for removal purposes.
For the foregoing reasons, we deny the petition.
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