United States Court of Appeals

For the First Circuit

No. 11-1535

CARLOS ALBERTO MARQUES VIVEIROS,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Selya and Boudin, Circuit Judges.

Matthew S. Cameron on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, Terri

J. Scadron, Assistant Director, and Kathryn L. Deangelis, Trial

Attorney, Office of Immigration Litigation, on brief for

respondent.

June 25, 2012
SELYA, Circuit Judge. The petitioner, Carlos Alberto

Marques Viveiros, is a Portuguese national. He seeks judicial

review of a final order of the Board of Immigration Appeals (BIA)

denying his motion to terminate removal proceedings and mandating

his deportation. After careful consideration of the question of

statutory interpretation that the petitioner raises, we deny his

petition.

The pertinent facts are easily summarized. The

petitioner was admitted into the United States in 1984 as a lawful

permanent resident. He settled in Massachusetts. Roughly a

quarter-century later, Massachusetts authorities charged him with

shoplifting, see Mass. Gen. Laws ch. 266, § 30A, and larceny, see

id. § 30(1). These charges arose out of separate crimes allegedly

committed at separate times and places.

The petitioner pleaded guilty to the shoplifting charge

in a Massachusetts state court and was fined $250. He pleaded

guilty to the larceny charge in the same court and was sentenced to

18 months of probation.

The shoplifting fine was never paid. Some five months

after the fine was imposed, a probation officer requested that it

be waived, and the court thereupon vacated it. According to the

docket, the ultimate disposition was a "guilty finding with no

fines or costs."

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In due course, the Department of Homeland Security (DHS)

commenced removal proceedings against the petitioner. The DHS

premised this action on the petitioner's convictions for two

independent crimes of moral turpitude. See 8 U.S.C.

§ 1227(a)(2)(A)(ii). The shoplifting and larceny convictions

comprise the two predicate convictions.

The petitioner appeared before an immigration judge (IJ). 

He did not contest the DHS's assertion that shoplifting and larceny

are crimes of moral turpitude but, rather, moved to terminate the

removal proceedings on the ground that he was never "convicted" of

shoplifting within the meaning of the immigration laws. In

support, he relied upon the vacation of the fine that had

originally been imposed.

The IJ rejected the petitioner's argument, denied the

motion to terminate, and ordered the petitioner removed to

Portugal. When the petitioner prosecuted an administrative appeal,

the BIA affirmed the IJ's order. The BIA held that Viveiros was

convicted of shoplifting because a "formal judgment of guilt" had

been entered against him. See id. § 1101(a)(48)(A). This timely

petition for judicial review followed.

This case turns on a singular question of statutory

construction: was the petitioner, with respect to the crime of

shoplifting, "convicted" within the meaning of 8 U.S.C.

§ 1227(a)(2)(A)(ii)? Both the IJ and the BIA answered this

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question in the affirmative. We review the agency's legal

conclusion de novo, ceding some deference to its interpretation

because the statute at issue falls within its purview. See

Arévalo-Girón v. Holder, 667 F.3d 79, 82 (1st Cir. 2012); MendezBarrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010).

Whether a person is "convicted" within the meaning of

section 1227(a)(2)(A)(ii) depends on whether his particular set of

circumstances comes within the definitional ambit of a related

statute, 8 U.S.C. § 1101(a)(48)(A). Under the latter statute, a

"conviction" can occur in either of two ways. First, a conviction 

takes place if there is "a formal judgment of guilt of the alien

entered by a court." 8 U.S.C. § 1101(a)(48)(A). Second, a

conviction likewise occurs if "(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." Id.

The agency rested its decision on the first definition of

"conviction," and our review is restricted to the ground of the

agency's holding. See El Moraghy v. Ashcroft, 331 F.3d 195, 203

(1st Cir. 2003).

The petitioner concedes that the disposition of the

larceny charge constitutes a conviction. The parties spar,

however, over whether the shoplifting charge culminated in a

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"formal judgment of guilt" within the meaning of the first

definition of "conviction." The petitioner posits that this

definition requires something more than a mere finding of guilt;

otherwise, the second definition would be superfluous. The

petitioner says that the "something more" is a sentence. In his

view, he received no sentence for the shoplifting crime, and,

therefore, that charge did not result in a "formal judgment of

guilt" under the first definition.

The facts of this case do not demand that we test the

petitioner's hypothesis because his argument fails on its own

terms. We explain briefly.

At the time that the state court found the petitioner

guilty of shoplifting, it ordered him to pay a $250 fine. The

finding of guilt coupled with the imposition of a pecuniary

sanction constituted a formal judgment of guilt by any measure. 

See Mejia Rodriguez v. U.S. DHS, 629 F.3d 1223, 1226-27 (11th Cir.

2011) (per curiam) (holding that "to establish a conviction for

immigration purposes, a court must accept a guilty plea or jury

verdict, make an adjudication, and impose a sentence"); Singh v.

Holder, 568 F.3d 525, 530-31 (5th Cir. 2009) (defining "formal

judgment of guilt" by reference to Fed. R. Crim. P. 32(k)(1)); see

also Ira J. Kurzban, Kurzban's Immigration Law Sourcebook 220 (12th

ed. 2010).

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The petitioner endeavors to alter this reality by

insisting that the subsequent vacation of the $250 fine

transmogrifies his case into one in which no sentence was ever

imposed. This attempt to rewrite history cannot survive scrutiny. 

We previously have held that when an alien's conviction is vacated

for reasons other than procedural or substantive error, he remains

"convicted" for immigration purposes. See, e.g., Rumierz v.

Gonzales, 456 F.3d 31, 39-40 (1st Cir. 2006); Herrera-Inirio v.

INS, 208 F.3d 299, 305 (1st Cir. 2000). Other courts uniformly

have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667

F.3d 448, 452-53 (4th Cir. 2012); Poblete Mendoza v. Holder, 606

F.3d 1137, 1141 (9th Cir. 2010); Saleh v. Gonzales, 495 F.3d 17,

24-25 (2d Cir. 2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245

(3d Cir. 2006). It necessarily follows that the vacation of a fine

for reasons unrelated to procedural or substantive error does not

dissipate the underlying conviction for purposes of section

1227(a)(2)(A)(ii).

The petitioner's case falls within this taxonomy. There

is no indication in the record that his fine for shoplifting was

vacated on account of either procedural or substantive error. To

the contrary, the state court docket reflects that roughly five

months after the fine was imposed, it was waived "on recommendation

of [the] Probation Dept." When the petitioner's counsel sought

clarification regarding the final disposition, the state court

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wrote that the "docket should reflect [a] guilty finding with no

fines or costs." The implication of these docket entries is

pellucid: the state court, exercising clemency, waived the

petitioner's fine at the behest of his probation officer. There is

not the slightest hint that the waiver came about because of some

legal infirmity in the shoplifting proceedings. Accordingly, the

shoplifting conviction remains a "formal judgment of guilt," 8

U.S.C. § 1101(a)(48)(A), and endures for immigration law purposes.

We reject out-of-hand the petitioner's suggestion that

there was no "formal judgment of guilt" because he was never

ultimately punished for his shoplifting crime. See Griffiths v.

INS, 243 F.3d 45, 54 (1st Cir. 2001) (stating that "the punishment

question is irrelevant" to an inquiry into whether a formal

judgment has been imposed).1 Congress explicitly included a

punishment requirement in the second definition of "conviction" but

withheld it from the first definition. This is unimpeachable proof

that a "formal judgment of guilt," within the meaning of the

statute at issue here, does not necessarily require a punitive

sanction. See Duncan v. Walker, 533 U.S. 167, 173 (2001)

(explaining that "where Congress includes particular language in

one section of a statute but omits it in another section of the

1 To the extent that the petitioner relies upon the facts of 

Griffiths, that case is easily distinguished. In Griffiths, the

court simply "filed" a guilty plea without ever imposing a

sentence. See 243 F.3d at 51-52.

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same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion" (internal

quotation marks omitted)).

We need go no further. For the reasons elucidated above,

the petition for judicial review is denied.

It is so ordered.

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