# United States Court of Appeals **for the Fifth Circuit**

No. 19-60342

Vu Quang Nguyen, also known as Vi Quang Nguyen, also known as Vu Hguyen,

Petitioner ,

versus
Merrick Garland, U.S. Attorney General,
Respondent

.

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A057 359 272

Before Jones, Clement, and Graves, Circuit Judges

. James E. Graves, Jr., Circuit Judge : Vu Quang Nguyen, a Vietnam native, asks the court to reevaluate a Board of Immigration Appeals decision that affirmed the ruling of an immigration judge who had found that Mr. Nguyen was subject to removal from the United States because he ha d been convicted of a crime involving moral turpitude. Though Mr. Nguyen has had a few run-ins with the law, the immigration judge based the removal order on his California forgery conviction. United States Court of Appeals Fifth Circuit 

### FILED May 12, 2021 Lyle W. Cayce Clerk Case: 19-60342 Document: 00515858968 Page: 1 Date Filed: 05/12/2021No. 19-60342

2 To prove the conviction’s exis tence, the Department of Homeland Security submitted a plea agreement and terms of probation form. The form shows that Mr. Nguyen pleaded guilty to forgery, details the facts, and shows that he received a sentence of 240 days in jail and three years of probation. Mr. Nguyen, his lawyer, the prosecutor, interpreter, and the deputy clerk of court all signed the plea agreement. The deputy clerk stamped the agreement as filed. Though this signed, stamped, and filed document lacks a judge’s signature, we hold that it can serve as clear and convincing evidence of a conviction and therefore deny Mr. Nguyen’s petition for review.
I. Mr. Nguyen was admitted to the U.S. as a lawful permanent resident in 2004. California authorities arrested him multiple times between 2010 and 2011. Records show that he entered guilty pleas for three counts of burglary, three counts of false presentation of identifying information, and one count of forgery. In 2018, authorities apprehended Mr. Nguyen at George Bush Intercontinental Airport where he app lied for admission to the U.S. as a lawful permanent resident. DHS served him with a Notice to Appear and charged him with removab ility pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude. Mr. Nguyen appeared before the i mmigration judge and admitted the allegations regarding his nationality but denied th e charges related to his forgery conviction. He did not file an application for relief from removal but instead challenged the grounds for r emoval. He argued that the document presented, the “Advisement and Waiver of Rights for a Felony Guilty Plea” that includes a “Terms and Conditions of Felony Probation” page, was insufficient to establish the existenc e of a conviction under 8 U.S.C. § 1101(a)(48)(A) by clear and convincing evidence. Mr. Nguyen admitted that he signed the plea agreement form and accepted that for gery is a crime involving moral turpitude. But he instead argued th at the form did not show Case: 19-60342 Document: 00515858968 Page: 2 Date Filed: 05/12/2021No. 19-60342

3 an adjudication of guilt because it la cked a judge’s signature and failed to show that a judge or jury had imposed a sentence. The immigration judge rejected these arguments because the plea agreement was signed by Mr. Nguyen , his defense counsel, and the prosecutor and was stamped as filed and signed by the deput y clerk. The form showed that Mr. Nguyen pleaded guilty to the charged offenses and specified the agreed disposition of 240 days in ja il with credit for time served and three years of probation. Accordingly, the immigration judge found that the form was clear and convincing evidence of a criminal conviction because it contained an indication of guilt and th e sentence imposed. Based on the clear and convincing evidence of a forger y conviction, the immigration judge ordered that Mr. Nguyen be removed. Mr. Nguyen appealed and raised th e same arguments before the Board of Immigration Appeals. But it too found that the form was clear and convincing proof of a forgery convicti on and concluded that the signed and stamped plea agreement constituted an “official record of plea, verdict, and sentence” for Mr. Nguyen’s forgery offe nse. 8 U.S.C. § 1229a(c)(3)(B)(ii). Mr. Nguyen filed a timely petition for review.

II. Due to a jurisdiction-stripping prov ision, this court generally lacks jurisdiction to review removal orders of aliens convicted of a crime involving moral turpitude. 8 U.S.C. §§ 1252(a)(2 )(C), 1182(a)(2)(A)( i)(I). But the provision creates an exception that allows us to review cons titutional claims and questions of law. § 1252(a)(2)(D); see Guerrero-Lasprilla v. Barr , 140 S. Ct. 1062 (2020). We conclude we can address a legal question like whether 8 U.S.C. § 1101(a)(48)(A) requires DHS to produce a document bearing a judge’s signature to prove the existence of a conviction. While such questions of law are reviewed de novo , we give “deference to the BIA’s interpretation of immigration statutes unless the reco rd reveals compelling evidence that Case: 19-60342 Document: 00515858968 Page: 3 Date Filed: 05/12/2021No. 19-60342

4 the BIA’s interpretation is incorrect.” Mikhael v. INS , 115 F.3d 299, 302 (5th Cir. 1997).
III. Section 1101(a)(48)(A) defines “con viction” as a “formal judgment of guilt.” Mr. Nguyen takes the idea that a formal judgment of guilt requires a judge’s signature from Singh v. Holder , 568 F.3d 525 (5th Cir. 2009). In that case, the panel was trying to determin e whether the date of conviction was the date the jury entered a verdict or the date a judge imposed a sentence. Id. at 526-27. Singh had fled after a jury found him guilty of unlawful wounding in 1987 but before sentencing. Id. His flight resulted in over a ten-year gap between the jury’s verdict and the imp osition of a sentence, which was finally imposed in 1998. Id. To deny him naturalization ri ghts, INS had to show that the conviction occurred after 1990. Id. at 527. The panel looked to section 1101’s definition of conviction for guidance and concluded that the conviction occurred at the time of sentencing. Id. at 530-31. When interpreting section 1101, th e panel followed the lead of both the Second and Third Circuits, whic h had defined “judgment of guilt” by reference to the analogous term “jud gment of conviction” found in Federal Rule of Criminal Procedure 32(k)(1). Id. (citing Puello v. Bureau of Citizenship and Immigr. Servs. , 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood , 294 F.3d 552, 562 (3d Cir. 2002)). 1 The rule provides that “[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court’s findings, the adjudication, and the sentence .” Fed. R. Crim. P. 32(k)

1 Federal Rule of Criminal Procedure 32(k)(1) reads:
In General. In the judgment of conviction, the court must set forth the plea, the jury verdict or the court’ s findings, the adjudication, and the sentence. If the defendant is found not guilty or is otherwise entitled to be discharged, the court must so order. The judge must sign the judgment, and the clerk must enter it. Case: 19-60342 Document: 00515858968 Page: 4 Date Filed: 05/12/2021No. 19-60342

5 (emphasis added). The panel took this to mean that without a sentence there is no judgment of guilt or judgment of co nviction and thus no conviction. The Singh panel remarked that such an unde rstanding aligns with the Supreme Court’s pronouncement that “‘[f]inal judg ment in a criminal case . . . means sentence. The sentence is the judgment.’” 568 F.3d at 530 (quoting Corey v. United States , 375 U.S. 169, 174 (1963)).
While the Singh panel relied on part of Rule 32(k) as one piece of an argument to establish that a conviction occurs wh en the court imposes a sentence, Mr. Nguyen insists we should adopt all of Rule 32(k)’s requirements into section 1101’s definiti on of conviction, in particular the one that the “Judge must sign the ju dgment, and the clerk must enter it.” Fed. R. Crim. P. 32(k). But no court has imported all of Rule 32(k)’s requirements into section 1101’s definition of conviction and found that the documents offered as proof must include a judge’s signat ure. The Second Circuit dispelled the notion that section 1101’s definition of conviction includes all of Rule 32(k)(1)’s requirements in Singh v. Department of Homeland Security , 526 F.3d 72 (2d Cir. 2008). There the cour t found that a Conditions of Probation document signed only by Singh and the clerk of court could serve as proof of a conviction because it was an official record of a sentence. Id. at 79. Mr. Nguyen’s signature argument also runs headlong into problems with another portion of the Immigratio n and Nationality Ac t, specifically, section 1229a(c)(3)(B). That section offers a list of documents that “shall constitute proof of a criminal convicti on.” 8 U.S.C. § 1229a(c)(3)(B). The list includes not only documents like an official record of plea, verdict, and sentence but also documents like a dock et entry from court records that indicates the existence of a conviction; official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of a conviction; and an abstract of convicti on prepared by the court in which a conviction was entered. § 1229a(c)(3 )(B)(ii)–(v). Not all of these documents Case: 19-60342 Document: 00515858968 Page: 5 Date Filed: 05/12/2021No. 19-60342

6 would be expected to bear a judge’s si gnature. For instance, finding a judge’s signature on a docket entry or tr anscript would be a surprise. The BIA concluded that the plea ag reement at issue here constituted an official record of plea , verdict, and sentence un der 1229a(c)(3)(B)(ii) and could thus serve as evidence of a convicti on. But if it were not to count as an official record of plea, verdict, and sentence, because it lacks a judge’s signature, a different provision of 1 229a(c)(3)(B) would cover it. Part (vi) discusses records “prepared by, or unde r the direction of, the court in which the conviction was entered that indi cate[] the existence of a conviction.” § 1229a(c)(3)(B)(vi). This plea agr eement form shows the imposition of a sentence, and the form is specific to Orange County and the deputy clerk of court for Orange County signed it and st amped it as filed. So alternatively, the form would fall within the scope of 1229a(c)(3)(B)(vi) as a document prepared under the direction of the court in which the conviction was entered.
IV. Consequently, Mr. Nguyen has failed to show that the immigration judge or BIA violated a statutorily imposed evidentiary requirement by finding that the plea agreement at issu e proved the existence of a forgery conviction by clear and convincing evid ence. It is not, as a matter of law, deficient or inadmissible. Petition for review DENIED

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