Darwin Lopez-Serrano v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12305
____________________
DARWIN LOPEZ-SERRANO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A074-729-481
____________________
Before R OSENBAUM , NEWSOM , and MARCUS, Circuit Judges.
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2 Opinion of the Court 22-12305
PER CURIAM:
Darwin Lopez-Serrano petitions this Court to review a prec-
edential decision by the Board of Immigration Appeals (“Board”)
affirming an Immigration Judge’s denial of his application for with-
holding of removal under 8 U.S.C. § 1231(b)(3) and for protection
under the Convention Against Torture (“CAT”). Matter of D-L-S-,
28 I&N Dec. 568 (BIA 2022). The Board denied Lopez-Serrano’s
application based on its interpretation of a phrase in the “particu-
larly serious crime” bar to withholding of removal, 8 U.S.C.
§ 1231(b)(3)(B)(ii). Id. Lopez-Serrano challenges the Board’s inter-
pretation of this statutory language and its application to his case.
After careful review of the record and the law and with the benefit
of oral argument, we deny Lopez-Serrano’s petition.
I. Background
Lopez-Serrano is a citizen of Mexico who first entered the
United States in 1996 without inspection. He returned to Mexico
in May 2009 after an Immigration Judge (“IJ”) granted him volun-
tary departure. But three months later, he reentered the United
States, again without inspection. The Department of Homeland
Security (“DHS”) initiated removal proceedings in October 2013.
A. Factual Background
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22-12305 Opinion of the Court 3
In 1999, Lopez-Serrano was arrested following a violent con-
frontation with a coworker at a gas station. He pled nolo contendere
to felony battery, Fla. Stat. Ann. § 784.041, on January 31, 2001.1
That same day, the Florida state court placed Lopez-Serrano
on probation for five years with conditions; assessed fines, costs,
and restitution; and ordered him not to contact the victim. That
court also deferred, or withheld, the adjudication of his guilt.2
As far as we know, Lopez-Serrano never appealed his de-
ferred adjudication, probation, fine, costs, restitution, or no-con-
tact order.
B. Procedural History
In October 2013, DHS charged Lopez-Serrano with remov-
ability under 8 U.S.C. § 1182(a)(6)(A)(i), as a non-citizen present in
the United States without being admitted or paroled, and under 8
U.S.C. § 1182(a)(7)(A)(i)(I), as a non-citizen not in possession of a
valid entry document.
Lopez-Serrano responded by filing an I-589 Application for
withholding of removal under 8 U.S.C. § 1231(b)(3) and for protec-
tion under the CAT. DHS moved to terminate his application on
the ground that he had been “convicted of a particularly serious
crime.” Under this provision of the Immigration and Nationality
1 Like the parties and the Board, we presume Lopez-Serrano pled nolo conten-
dere to felony battery under Fla. Stat. Ann. § 784.041.
2 Like the parties and the Board, we presume the state court withheld Lopez-
Serrano’s adjudication under Fla. Stat. Ann. § 948.01(2).
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4 Opinion of the Court 22-12305
Act (“INA”), an applicant is ineligible for withholding of removal if,
“having been convicted by a final judgment of a particularly serious
crime[, he] is a danger to the community of the United States.” 8
U.S.C. § 1231(b)(3)(B)(ii).
In an oral decision, the IJ sustained both charges of remova-
bility and denied Lopez-Serrano’s application for withholding of
removal and for protection under the CAT. In relevant part, the IJ
concluded that Lopez-Serrano’s withheld adjudication for felony
battery constitutes a “convict[ion] by a final judgment of a partic-
ularly serious crime.”
Lopez-Serrano appealed the IJ’s decision to the Board—spe-
cifically, the IJ’s determination that he had been convicted by a final
judgment of a “particularly serious crime.” But the Board dis-
missed Lopez-Serrano’s appeal in a single-member decision. That
decision held that Lopez-Serrano’s withheld adjudication for felony
battery constitutes “a particularly serious crime based upon its ele-
ments.”
Lopez-Serrano timely petitioned this Court for review. But
the Government asked us to remand to allow the Board to consider
further the “particularly serious crime” bar. Lopez-Serrano didn’t
oppose remand. So we remanded the case to the Board on March
30, 2017.
On remand, the Board reviewed de novo and dismissed
Lopez-Serrano’s appeal for a second time, this time in a published
decision. Matter of D-L-S-, 28 I&N Dec. at 578. It reviewed the
statutory language of the “particularly serious crime” bar and
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22-12305 Opinion of the Court 5
determined that, given his withheld adjudication for felony battery,
Lopez-Serrano has been “convicted by a final judgment” of a “par-
ticularly serious crime.” Id. at 570–78.
Lopez-Serrano timely petitioned this Court for review a sec-
ond time.
II. Standard of Review
We review de novo the Board’s legal determinations. Ayala v.
U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010) (citing Silva v. U.S.
Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)).
III. Discussion
Lopez-Serrano asserts that his deferred adjudication wasn’t
a “convict[ion] by a final judgment of a particularly serious crime”
that renders him ineligible for withholding of removal.
Under the “particularly serious crime” bar, an applicant is
ineligible for withholding of removal if, “having been convicted by
a final judgment of a particularly serious crime[, he] is a danger to
the community of the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii).
Lopez-Serrano argues that the phrase “convicted by a final
judgment” unambiguously imposes a finality requirement. That
is, he reads the “particularly serious crime” bar to apply only if an
applicant has exhausted or forfeited all of his appeals for his convic-
tion. Because the Board’s interpretation of “convicted by a final
judgment” doesn’t impose that type of finality requirement, he
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6 Opinion of the Court 22-12305
claims that the Board has effectively rewritten the statute to redun-
dantly bar any applicant “convicted by a conviction.”3
For us to reach this same conclusion, Lopez-Serrano sug-
gests our analysis follow one of three alternative avenues. First, he
asserts that we may determine that the Board’s interpretation
doesn’t merit deference, under either Chevron4 or Skidmore,5 and
3 Lopez-Serrano also argues that a Florida deferred adjudication can never be a
conviction by a final judgment because it is not a conviction, and does not
impose a sentence, under Florida law -- and that we should use Florida, and
not federal, law to interpret the phrase “convicted by a final judgment.” But
we have unequivocally said that terms in the INA are interpreted under federal
law, not state law. See Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 629 F.3d
1223, 1228 (11th Cir. 2011); see also NLRB v. Nat. Gas Util. Dist., 402 U.S. 600,
603 (1971) (“[I]n the absence of a plain indication to the contrary . . . it is to be
assumed when Congress enacts a statute that it does not intend to make its
application dependent on state law.” (citation omitted)). That Florida might
not consider Lopez-Serrano to have been adjudicated, convicted, or sen-
tenced, is not relevant to the federal government’s interpretation of those
terms for immigration purposes under the INA.
4 Under Chevron deference, we must accept an agency’s reasonable interpreta-
tion of an ambiguous statute. See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301,
1306 (11th Cir. 2019) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842–44 (1984)). We apply Chevron deference only if the statute is
ambiguous, “Congress explicitly or implicitly ‘expect[s] the agency’” to inter-
pret a statute, and the agency “acts in line with that expectation.” Martin v.
Soc. Sec. Admin., Comm’r, 903 F.3d 1154, 1159 (11th Cir. 2018) (quoting United
States v. Mead Corp., 533 U.S. 218, 229 (2001)).
5 When Chevron deference is inappropriate, we may instead apply a lesser de-
gree of deference under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Mar-
tin, 903 F.3d at 1160. Under Skidmore deference, an agency’s interpretation
“carries a weight” that depends on “‘the thoroughness evident in its consider-
ation, the validity of its reasoning, its consistency with earlier and later
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22-12305 Opinion of the Court 7
instead adopt his reading of the statute. Second, he contends that
we may apply the Chevron framework but refuse to defer to the
Board’s interpretation on the ground that Congress unambigu-
ously intended a finality requirement. Or third, he argues that we
may apply the Chevron framework but refuse to defer to the Board’s
interpretation as an arbitrary and capricious interpretation of the
statute.
But we do not reach the merits of this question. Even if we
adopted his interpretation, Lopez-Serrano has been “convicted by
a final judgment” of a particularly serious crime.6 He pled nolo con-
tendere to felony battery, Fla. Stat. Ann. § 784.041, on January 31,
2001. That same day, the state court withheld his adjudication of
guilt; imposed five years of supervised release; assessed fees, costs,
and restitution; and imposed a no-contact order. Lopez-Serrano
therefore was “convicted,” as the INA defines the term, on January
31, 2001. 8 U.S.C. § 1101(a)(48)(A).7
pronouncements, and all those factors which give it power to persuade, if lack-
ing power to control.’” Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1259 (11th
Cir. 2008) (quoting Skidmore, 323 U.S. at 140).
6 The Board concluded—and Lopez-Serrano does not challenge—that felony
battery is a “particularly serious crime.”
7 As relevant here, the INA defines “conviction” as a withheld adjudication of
guilt, where the non-citizen 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
to be imposed.” 8 U.S.C. § 1101(a)(48)(A). This definition governs all uses of
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8 Opinion of the Court 22-12305
And his conviction has been final, according to Lopez-Ser-
rano’s definition of the term, since March 2, 2001, at the latest. The
date depends on whether he expressly reserved his right to appeal
when he pled nolo contendere. Here, the record indicates no such
reservation. If he failed to expressly reserve his right to appeal, his
conviction became final on January 31, 2001. Fla. Stat. Ann.
§ 924.051(4) (“If a defendant pleads nolo contendere without ex-
pressly reserving the right to appeal a legally dispositive issue, . . .
the defendant may not appeal the judgment or sentence.”). But
even if Lopez-Serrano did expressly reserve his right to appeal, his
conviction became final 30 days later, on March 2, 2001. Id.
§ 924.09; Fla. R. App. P. 9.140(b)(3).
Either way, Lopez-Serrano had no appellate rights twelve
years later, when DHS initiated his 2013 removal proceedings. And
even if we considered Lopez-Serrano’s case to somehow remain
open during the pendency of his probationary period imposed in
connection with his nolo contendere plea, that period also ended
years before DHS sought to remove Lopez-Serrano. So any appel-
late rights Lopez-Serrano may have had relating to that conviction
unambiguously expired long before the 2013 removal proceedings
began. In short, even assuming without deciding that Lopez-Ser-
rano is correct that the phrase “convicted by a final judgment” im-
poses a finality requirement, he cannot escape the Board’s
the term “conviction” in Chapter 12 of Title 8 of the U.S. Code, which includes
the “particularly serious crime” bar. 8 U.S.C. § 1101(a).
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22-12305 Opinion of the Court 9
determination that he has been “convicted by a final judgment of a
particularly serious crime.”
IV. Conclusion
For the reasons we have explained, we deny Lopez-Ser-
rano’s petition.
PETITION DENIED.
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