### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-60720

LUIS CARLOS RODRIGUEZ-VARGAS,
Petitioner
v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A037 726 177

Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM: * Luis Carlos Rodriguez-Vargas, a Mexican n ational, petitions for r eview of
t h e f i n a l order of removal issued a gainst him by the Board of I mmigration Appeals (BIA). He argues h e never received a “convic t i o n , ” a s t hat term is defined by the Immigration and Nationality Act (INA), 8 U.S.C. § 1 101(a)(48)(A), for the California crime of sexual battery, C A L

. P E N A L C O D E § 243.4, to which he U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 13, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-60720 Document: 00512174102 Page: 1 Date Filed: 03/13/2013No. 11-60720

pled nolo contendere

. Being c onvicted by course of l a w for that offense supplies the grounds for his removal. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(E). The INA ordinarily denies us jurisdiction to review final orders of removal against certain “criminal aliens,” including those founded on an aggravated felony conviction, as Rodriguez-Vargas’s is here. See Martinez v. Mukasey , 519 F.3d 532, 538 (5th Cir. 2008); 8 U.S.C. § 1252(a)(2)(C). However, because Rodriguez-Vargas’s petition presents a question of l a w as to whether he was convicted by a California court, we retain jurisdiction t o address his claim. See Martinez , 5 19 F.3d a t 5 38; 8 U.S.C. § 1252(a)(2)(D). We review the BIA’s legal determinations de novo, but g rant it deference i n co n struing s tatutes it administers. 1 See R o bertson-Dewar v. Holder , 646 F.3d 226, 2 30 ( 5th Cir. 2011). I n a December 30, 2005 information, the Alameda County District Attorney’s Office charged Rodriguez-Vargas with continuous sexual a buse, a violation of C A L

. P E N A L C O D E § 288.5(a). In a November 9 , 2 0 0 6 court

a p p e a r a n c e , R o d r i g uez-Vargas pled nolo contendere to committing § 24 3

. 4 s e x u a l batte r y , a l e sser i ncluded felony, a nd promised to obey all laws prior to his sentencing, scheduled for t hree years l ater. In return, he was permitted to remain out o f custody, free of conditions, to withdraw his plea, and to have the charge dismissed a t s e n tencing. Rodriguez-Vargas a greed, however, that if he committed another crime b efore senten c i n g, his plea would continue to bind him, exposing him to p robation or jail time. He also acknowledged that he would be

r e q u ired to pay restitution under the terms of his plea bargain. T he court

1 I n Moosa v
. I

.N .S. , 171 F. 3d 994, 1005 ( 5th Cir. 1999) , we ap p l i e d t h e d e f erence f ram ew ork articulated in Chev ron, U

. S. A

. , Inc. v
. N

a t ura l Res. D ef

. Counci l, I

nc. , 467 U

. S. 837, 842- 43 ( 1984) , w hen w e review ed an agency d ecis ion cons truing the s tatut e n o w a t is s ue, 8 U

. S. C. § 1101( a) ( 48) ( A)

. H ow ever, w e exp res s ly have lef t unres olved w hether an unp ublis hed , s ingle- jud ge BIA op inion, s uch as the one here, is d ue only the les s er d ef erence accord ed und er Ski dm ore v
. Sw i f

t & Co. , 323 U

. S

. 1 3 4 , 140 (1944)

. See M ushta q v
. H

ol der , 583 F. 3d 875, 876- 77 ( 5th Cir. 2009)

. We need not res olve that ques tion tod ay as w e find the B IA’s d ecis ion in accord w ith the statute’s p lain m eaning and our p reced ent, m eriting our def erence und er either tes t. See Ra na v
. Hol der , 654 F. 3d 547, 550- 51 ( 5th Cir. 2011)

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accepted the nolo c o n t e n d ere plea as a finding of guilt with a factual basis. Rodriguez-Vargas reached h is November 2009 s entencing without violating the terms of the plea agreement. The sentencing judge o rdered h i m t o p ay restitution in t he amount of $4,325.29 to satisfy a claim s u b m i t t e d by the California Victim Compensation Board, and then dismissed the charge. The judge clarified that the restitution order wo u l d b e “enforceable as a civil judgment . . . to be paid within 60 days.” The issue before us is w hether Rodriguez-Vargas’s California proceedings yielded a conviction, as defined by the INA, giving rise to collateral, i mmigration consequences. The INA provides: The term “conviction” means, with r e spect to an alien, a formal judgment of guilt of the alien entered b y a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien g uilty or the alien has entered
a plea of guilty or nolo contendere or has admitted suffici e n t f acts to warrant a finding of guilt, and ( ii) the judge has ordered s ome form of punishment, penalt y , o r restraint on the alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A). California court records do not suggest that, after the November 2009 sentencing and dismissal, R odriguez-Vargas r etained “a formal judgment of guilt

. . . entered by a court,” dispositive evidence of a conviction under § 1101(a)(48)(A)’s first clause. The p arties agree his case hinges instead

on t he two-pronged test in the provision’s second clause that a pplies when an “adjudication of guilt h as been withheld.” It is plain that the 2006 change of plea

sa t i s fied the f

irst prong, as Rodriguez-Vargas “entered a p lea of guilty or nolo contendere or
. . . admitted suf f i c i e nt f acts to warrant a finding of guilt,” § 1101(a)(48)(A)(i). Rodriguez-Vargas primarily takes issue with t he BIA’s determination that the restitution orde r ed at sentencing fulfills the second

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prong, which requires that a “ judge has ordered some form of p u nishment, penalty, or restraint on t he alien’s libert y t o b e i mposed,” § 1 101(a)(48)(A)(ii), in connection with the offense. Our settled law c o n f

i r m s that r e stitution “is a criminal penalty and a component of the defen d a n t ’ s s e ntence.” United States v. Hayes , 32 F.3d 171, 172 ( 5th Cir. 1994). It accordingly qualifies as a “punishmen t ” or “penalty” under § 1101(a)(48)(A)(ii). See De Vega v. G onzales , 5 03 F.3d 45, 47, 49 (1st Cir. 2007) (finding that r estitution ordered by a Massachusetts court constituted a punishment or penalty under § 1101(a)(48)(A)(ii), when the defendant admitted to the facts of the crime charged but was given a continuation without a finding of guilt contingent on p ayment of the restitution) ; Warmington v. Keisler , 254 F. App’x 287, 290 (5th C ir. 2 007) (unpublished) (applying De Vega in f inding a similar Massachusetts procedure qualified as a “conviction”) ; Matter of Cabrera , 24 I. & N. D e c
. 4 5 9, 462 (BIA 2008) (holding that imposition of costs and surcharges following a p lea is a “penalty” or “punishment”); c f

. Retuta v. Holder , 591 F .3d 1181, 1187-89 (9th Cir. 2010) (finding no “punishment” or “ p enalty” where a Califor n ia court had indefinitely stayed a d e fendant’s fine without exacting it). Rodriguez-Vargas challenges that result by asserting he was never truly sentenced, perceiving an incongruity between the sentencing court’s restitution order and its subsequent dismissal o f t h e charge admitted to u nder oath by Rodriguez-Vargas. However, we have already fou n d t h a t a n analogous procedure, d elayed a djudication under Texas law, qualifies as a conviction for
purposes of § 1 101(a)(48)(A). Moosa , 171 F.3d at 1005-06; Madriz-Alvarado v. Ashcroft , 383 F.3d 321, 330 (5th Cir. 2004). Under that scheme, a defendant is permitted to enter a ple a o f g u i lty that he m ay w ithdraw, avoiding the accompanying s entence, if h e successfully completes a term o f community supervision. Moosa , 171 F.3d at 998 & n.1; T E X

. C O D E C R I M

. P R O C

. art. 42.12 §

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5. L ike the agreement in Rodriguez-Vargas’s case, Texas delayed adjudication requires the defendant to admit guilt, enter a plea, and suffer a sanction, after which the defendant may withdraw the p lea and see t he c harge dismissed. We found it gave rise to a conviction, even where dismissal of the charges under state l a w could “‘not be d eemed a conviction for the purposes o f disqualifications

or disabilities imposed by law for conviction o f an offense.’” Madriz , 383 F.3d at 330 (quoting T E X

. C O D E C R I M

. P R O C

. ar t

. 4 2

. 1 2 § 5 (c)). That result followed because we must apply the standard set f orth in § 1101(a)(48)(A), not the law of the relevant state, in assessing whether a “conviction” arose. See Mo o s a , 1 7 1 F.3d at 1006 n.7. It i s t herefore not dispositive that, as Rodriguez-Vargas also highlights, the s entencing judge in his case c haracterized the restitution order

as “enforceable a s a civil j u dgment.” 2 Under our precedent, r estitution is a criminal sanction. Hayes , 32 F.3d at 172. R o d r i g u e z - V a rgas, in the course of the C alifornia criminal proceedi n g , sustained a “conviction” by entering a nolo contendere plea a nd suf f e r i ng a punishment or penalty fo r h i s c onduct in the form of the restitution o rder. As a result, we DENY his petition for review.

2 N onetheles s , it is w orth m ention that Calif ornia, cons is tent w ith the language us ed by the sentencing court, ap p ears to view victim res titution ord ers as crim inal, not civil, p unis hm ent. See V

i gi l ant Ins. Co. v
. Chi u , 96 Cal. Rp tr. 3d 54, 58 ( Ct. Ap p
. 2009) ( “While a res titution ord er is enf orceable ‘as if [ it] w ere a civil jud g m ent’.

. . it is not a civil jud gm ent. ”) ; Peop l e v. Brow n , 54 Cal. R ptr. 3d 887, 893- 94 ( Ct. Ap p
. 2007) ( hold ing victim res titution is a “p unis hm ent” for p urp os es of a state s tatute res tricting courts to im p os ing a s entence that is not m ore s evere than agreed in a p lea bargain)

. But see Peop l e v. H a rv est , 101 Cal. Rp tr. 2d 135, 136- 37 ( Ct. Ap p
. 2000) (d eterm ining that d irect victim res titution “im p os ed f or the f irs t tim e at a res entencing f ollow ing ap p eal is not punis hm ent and is theref ore not cons titutionally barred ” by the D ouble Jeop ard y Claus e)

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