Matter of MOHAMED, 27 I&N Dec. 92 (BIA 2017)
Entry into a pretrial intervention agreement under Texas law qualifies as a "conviction" for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.
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Matter of Ali Mohamed MOHAMED, Respondent
Decided September 5, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Entry into a pretrial intervention agreement under Texas law qualifies as a “conviction”
for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to
warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge
authorizes an agreement ordering the respondent to participate in a pretrial intervention
program, under which he is required to complete community supervision and community
service, pay fees and restitution, and comply with a no-contact order.
FOR RESPONDENT: Christine D. Truong, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: April Silva, Assistant Chief
Counsel
BEFORE: Board Panel: GRANT, PAULEY, and MANN, Board Members.
GRANT, Board Member:
In a decision dated November 14, 2016, an Immigration Judge terminated
the proceedings, holding that the respondent is not removable because his
pretrial intervention agreement pursuant to section 76.011 of the Texas
Government Code and article 102.012 of the Texas Code of Criminal
Procedure is not a “conviction” within the meaning of section 101(a)(48)(A)
of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012).
The Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained, the removal proceedings will be
reinstated, and the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Somalia who was admitted to
the United States as a lawful permanent resident on December 1, 2004. He
was indicted on October 31, 2012, for possession of a controlled substance
with intent to deliver in violation of section 481.113(c) of the Texas
Health and Safety Code. On February 19, 2016, the respondent entered into
a pretrial intervention agreement, which included the following terms:
(1) 24 months of community supervision; (2) $60 per month community
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supervision fee; (3) 100 hours of community service; (4) restitution in the
amount of $140; (5) $500 pretrial intervention program fee; and (6) no
contact with the co-defendant.
In addition to these terms, the respondent agreed to waive his right to a
speedy trial. He also agreed that if he violated the terms of the agreement
during the 24-month period of community supervision, he would appear in
court; enter a plea of guilty to the charged offense; allow the “stipulation of
evidence” to be admitted into evidence without objection;1 and either accept
the punishment offered by the prosecution or allow the judge to determine
punishment following a contested punishment hearing. Under the State’s
portion of the agreement, the prosecution agreed to “dismiss this case” if the
respondent “follow[ed] the terms of this agreement and the rules of
community supervision.”
During the 24-month community supervision period, the respondent was
required to follow numerous rules mandated by the county Community
Supervision and Corrections Department (“CSCD”).2 Among other things,
these rules required the respondent to cooperate and maintain contact with
his Community Supervision Officer. He was subject to random searches of
his “person, home, and . . . possessions” and had to submit to random urine
analysis and obtain prior permission to change his address or leave the county
1 The “stipulation of evidence,” which was incorporated into the pretrial intervention
agreement, contains the following sworn admission, in pertinent part:
I, ALI MOHAMED MOHAMED, hereby swear, under oath, that I am completely
familiar with the indictment/charge in the above referenced cause number, if any,
which is currently pending against me. I understand that I am charged with POSS
CS PG 2 ˃= 400G W/INTENT TO DELIVER. . . . I have read the charging
instrument and my attorney has explained it to me and I committed each and every
element alleged and have no defense in law. I swear, under oath, that I am guilty of
the offense set out therein and all lesser included offenses charged against me.
The stipulation of evidence was sworn to by the respondent before the Deputy District
Clerk of Liberty County, Texas. Below his signature, the criminal defense attorney, the
prosecutor, and the presiding judge signed a certification verifying that all of the
respondent’s statements were freely and voluntarily made.
2 Section 76.011(a)(1) of the Texas Government Code provides that a CSCD may operate
programs for “the supervision and rehabilitation of persons in pretrial intervention
programs.” The Texas Government Code does not further define the pretrial intervention
programs other than to provide in section 76.011(b) that they “may include reasonable
conditions related to the purpose of the program, including testing for controlled
substances,” and in section 76.011(c) that program participants “may be supervised for a
period not to exceed two years.” For our purposes, it suffices to recognize these programs
as a form of noncustodial correctional supervision.
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“for an overnight stay.” The presiding judge expressly authorized the
respondent’s participation in the pretrial intervention program and ordered
him to pay “all fees specified” in the rules of community supervision.
In summary, the respondent’s criminal record consists of the October 31,
2012, indictment and the February 19, 2016, pretrial intervention agreement,
which is comprised of the agreement itself, the rules of community
supervision (the pretrial intervention program), and the stipulation of
evidence.
After the initiation of the removal proceedings, the respondent conceded
alienage but denied that he is removable based on the charge that he has been
convicted of a crime. The respondent moved for termination, arguing that
his entry into the pretrial intervention agreement is distinguishable from a
deferred adjudication and is not a “conviction” under section 101(a)(48)(A)
of the Act.3
The Immigration Judge granted the respondent’s motion, concluding that
a pretrial intervention agreement is not a “conviction” for immigration
purposes because no “adjudication of guilt has been withheld,” as required
for a conviction under section 101(a)(48)(A) when a formal judgment of guilt
has not been entered. In reaching this conclusion, the Immigration Judge
distinguished the respondent’s pretrial intervention agreement from a
deferred adjudication under article 42.12, section 5 of the Texas Code of
Criminal Procedure, which both we and the United States Court of Appeals
for the Fifth Circuit, in whose jurisdiction this case arises, have held qualifies
as a “conviction” for immigration purposes. Madriz-Alvarado v. Ashcroft,
383 F.3d 321 (5th Cir. 2004); Matter of Punu, 22 I&N Dec. 224 (BIA 1998).
First, the Immigration Judge noted that a pretrial intervention agreement,
which provides for dismissal of the criminal charges before the defendant
enters a formal plea or the judge makes a formal finding of guilt, differs from
a deferred adjudication under Texas law, which requires a plea of guilty or
nolo contendere, as well as a judicial finding that the evidence substantiates
the defendant’s guilt. He therefore concluded that since an adjudication of
guilt is not entered on the record in a pretrial intervention agreement, it is not
“withheld” for purposes of section 101(a)(48)(A) of the Act. In addition, the
Immigration Judge determined that the fees and costs imposed on a
3 Section 101(a)(48)(A) of the Act provides that the term “conviction” means:
a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt
has been withheld, where—
(i) 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
(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.
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participant in the pretrial intervention program do not constitute a “form of
punishment, penalty, or restraint on the alien’s liberty” that is “ordered” by
a judge, as required by section 101(a)(48)(A)(ii) of the Act.
In finding that a pretrial intervention agreement is not a conviction for
immigration purposes, the Immigration Judge accorded significant weight to
two opinions issued by the Attorney General of Texas. In a 2013 opinion,
the Attorney General explained that “the purpose of pretrial intervention is
to provide the defendant with an opportunity to have the charges dismissed
prior to a finding of guilt or innocence.” Op. Tex. Att’y Gen. GA-0986, at
2 (Feb. 5, 2013) (citing Fisher v. State, 832 S.W.2d 641, 643 (Tex. Ct. App.
1992)). The Immigration Judge understood this to mean that a guilty plea is
not required for entry into a pretrial intervention agreement and noted that
such a requirement would be, as the Attorney General stated, “inconsistent
with the purposes of pretrial intervention.” Id.
In a 2003 opinion, the Attorney General stated that a “participant in a
pretrial intervention program has not been ordered to receive services by a
court but rather receives services under an agreement with a prosecutor.” Op.
Tex. Att’y Gen. GA-0114, at 4 (Oct. 8, 2003). The Immigration Judge
recognized that article 102.012 of the Texas Code of Criminal Procedure,
which authorizes the imposition of pretrial intervention program fees and
reimbursement for expenses, was amended in 2005 to require that the court
with jurisdiction over the pretrial intervention agreement, rather than the
CSCD, order the payment of the fees.4 However, he deemed this amendment
to be “merely administrative” and determined that the program fees ordered
by the judge are “the same as those agreed upon between the prosecutor and
the defendant.” In other words, the Immigration Judge concluded that the
fees were part of a contract between the respondent and the prosecutor, rather
than a penalty “ordered” by the judge.
Finding that the Texas pretrial intervention program does not fall
within the statutory requirements of section 101(a)(48)(A) of the Act, the
Immigration Judge concluded that the respondent’s entry into the pretrial
intervention agreement is not a “conviction” for immigration purposes. He
therefore determined that that the DHS did not establish the respondent’s
removability and terminated the proceedings.
4 Article 102.012(a) of the Texas Code of Criminal Procedure provides that the court may
order the payment of a “supervision fee” to the CSCD as a condition for entry into the
program. Article 102.012(b) states that “[i]n addition to or in lieu of the supervision fee . . . ,
the court may order the defendant to pay or reimburse” the CSCD for any expenses
“incurred as a result of” the program or “necessary to the defendant’s successful
completion of the program.” Prior to its amendment in 2005, article 102.012 provided that
a program participant could be assessed a fee for supervision of the defendant that was
equal to the actual cost to the CSCD, but not to exceed $500.
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II. ANALYSIS
The question presented on appeal is whether the respondent’s entry into
a pretrial intervention agreement under Texas law qualifies as a conviction
for immigration purposes. We review this question of law de novo and
conclude that it does. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).
We note first that “whether or not a conviction exists for immigration
purposes is a question of federal law and is not dependent on the vagaries of
state law.” Matter of Roldan, 22 I&N Dec. 512, 516 (BIA 1999) (citing
Matter of Ozkok, 19 I&N Dec. 546, 551 n.6 (BIA 1988)), vacated in part sub
nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), overruled by
Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc); see also
Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995); Gutierrez-Rubio v. INS,
453 F.2d 1243, 1244 (5th Cir. 1972); Gonzalez de Lara v. United States, 439
F.2d 1316, 1318 (5th Cir. 1971). If Congress intended the existence of a
conviction to depend upon the operation of State law, it would have written
the Federal law to that effect.5 See Matter of Roldan, 22 I&N Dec. at 522
(“[W]hen Congress has intended for state law to control in defining when a
conviction exists for a federal purpose, it has expressly said so.”). Therefore,
the question is not whether the State of Texas regards a pretrial intervention
agreement as a conviction, but rather whether the agreement meets the
Federal definition of a “conviction” in section 101(a)(48)(A) of the Act.
Because the term “conviction” is defined by the Act, the statutory
definition alone determines what qualifies as a conviction for immigration
purposes. See Burgess v. United States, 553 U.S. 124, 129−30 (2008);
United States v. Transocean Deepwater Drilling, Inc., 767 F.3d 485, 490 (5th
Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1053 (9th Cir. 2014).
Under section 101(a)(48)(A), a conviction can arise, first, from “a formal
judgment of guilt of the alien entered by a court.” It is undisputed that the
respondent has not been convicted in this sense of the term.
The question remains whether the respondent has been convicted because
the “adjudication of guilt has been withheld.” To establish that an alien has
been convicted in this sense, it must first be shown that “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.”
5 For example, according to 18 U.S.C. § 921(a)(20) (2012), “[w]hat constitutes a
conviction” for purposes of defining a Federal firearms felony is “determined in
accordance with the law of the jurisdiction in which the proceedings were held.” Therefore,
in United States v. Clarke, 822 F.3d 1213, 1214 (11th Cir. 2016), the Eleventh Circuit
looked to Florida law to determine whether the defendant’s prior withheld adjudication of
guilt in Florida qualified as a “conviction” for purposes of a Federal charge of unlawful
possession of a firearm by a felon under 18 U.S.C. § 922(g)(1) (2012).
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Section 101(a)(48)(A)(i) of the Act (emphases added). Next, it must be
demonstrated that “the judge has ordered some form of punishment, penalty,
or restraint on the alien’s liberty to be imposed.” Section 101(a)(48)(A)(ii)
of the Act. We conclude that the respondent’s admission of guilt in the
stipulation of evidence satisfies the first requirement, and his entry into the
pretrial intervention program satisfies the second.
Under the plain language of section 101(a)(48)(A), neither a finding of
guilt by a judge or jury, nor a plea of guilty or nolo contendere is required to
establish a conviction. Rather, the definition is satisfied so long as the alien
“has admitted sufficient facts to warrant a finding of guilt.” See Matter of
Richmond, 26 I&N Dec. 779, 787 (BIA 2016) (attributing different meanings
to terms connected in the disjunctive in the Act); see also Loughrin v. United
States, 134 S. Ct. 2384, 2390 (2014).
The respondent’s sworn admission of guilt brings the pretrial intervention
agreement within the definition of a conviction in section 101(a)(48)(A)(i)
of the Act. After he was sworn and placed under oath, the respondent
admitted in the stipulation of evidence that he “committed each and every
element alleged and ha[d] no defense in law.” He further admitted that he is
“guilty of the offense set out [in the indictment] and all lesser included
offenses charged against [him].” Moreover, he agreed that any violation of
the pretrial intervention agreement would automatically result in a conviction
based on the admission of guilt in the stipulation of evidence.6
In addition, the obligations the respondent incurred in the pretrial
intervention program individually and cumulatively constitute a “form of
punishment, penalty, or restraint on the alien’s liberty” under section
101(a)(48)(A)(ii) of the Act. As part of his pretrial intervention agreement,
the respondent entered into a pretrial intervention program administered
by the CSCD. The program imposed numerous costs, conditions, and
restrictions to which the respondent agreed in exchange for the prosecution’s
promise to dismiss the charges. See In re D.R.R., 322 S.W.3d 771, 773 (Tex.
6 In Iqbal v. Bryson, 604 F. Supp. 2d 822 (E.D. Va. 2009), the court held that the alien’s
entry into a pretrial diversion agreement under New York law did not constitute a
conviction under section 101(a)(48)(A) of the Act. The court determined that “sufficient
facts to warrant a finding of guilt” were not admitted where the language of the agreement
stated only that the alien “accept[ed] responsibility for [his] behavior” but included “no
other reference to the facts underlying the charges.” Id. at 826. The court concluded that
the “mere boilerplate language that appears to be used in all of New York’s Pretrial
Diversion Agreements is not case specific and thus cannot be deemed to recite sufficient
facts to warrant a finding of guilt.” Id. This case is distinguishable because the
respondent’s admission of guilt is tethered to the facts and offense elements charged in the
indictment, as stated in the stipulation of evidence. Moreover, the respondent’s stipulation
of evidence includes a waiver of any opposition to its admission as evidence in the event
that the pretrial intervention agreement is voided.
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Ct. App. 2010). These include the imposition of periods of community
supervision and community service, the community supervision and pretrial
intervention program fees, the order of restitution, and the no-contact order.
See United States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994) (stating that
“[r]estitution is a criminal penalty”); Matter of Cabrera, 24 I&N Dec. 459,
460−62 (BIA 2008) (holding that the imposition of costs and surcharges in
conjunction with a withheld adjudication under Florida law constitutes a
“penalty” or “punishment” within the meaning of section 101(a)(48)(A)).
As previously noted, the Immigration Judge considered the program fees
assessed pursuant to article 102.012 of the Texas Code of Criminal Procedure
to be contract terms determined by the prosecutor, rather than a penalty
“ordered” by the judge. However, since 2005, article 102.012 has required
the court, as opposed to the CSCD, to order payment of the pretrial
intervention program fees and expenses. Moreover, even prior to 2005, a
defendant could only enter into a pretrial intervention agreement, and
therefore a pretrial intervention program, with the court’s authorization. See
Fisher, 832 S.W.2d at 643−44. See generally Tex. Gov’t Code Ann.
§ 76.002(a)(1) (West 2017) (providing that criminal court judges are
required to “establish a community supervision and corrections
department”). Because only a judge can authorize a pretrial intervention
agreement, which in this case included community supervision and
community service, restitution, and a no-contact order in addition to the
imposition of fees, we conclude that the respondent’s admission into a
pretrial intervention program under Texas law is a “form of punishment,
penalty, or restraint on the alien’s liberty” that was “ordered” by a judge.
III. CONCLUSION
Although the successful completion of a pretrial intervention agreement
in Texas may not result in a conviction for purposes of State law, the
respondent has nevertheless “admitted sufficient facts to warrant a finding
of guilt,” and the imposition of the mandated community supervision,
community service, fees, restitution, and order of no contact with the
co-defendant constitutes a “form of punishment, penalty, or restraint” on his
liberty. For these reasons, the respondent’s pretrial intervention agreement
qualifies as a conviction for immigration purposes under section
101(a)(48)(A) of the Act. The Immigration Judge therefore erred in
terminating the removal proceedings. Accordingly, the DHS’s appeal will
be sustained, the proceedings will be reinstated, and the record will be
remanded. On remand the Immigration Judge should further determine
whether the DHS has sufficiently established the respondent’s removability
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and, if necessary, allow him to apply for any relief from removal for which
he may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.