United States Court of Appeals

For the Eighth Circuit

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No. 18-1074

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Jonathan Jaciel Zazueta

lllllllllllllllllllllPetitioner

v.

William P. Barr, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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Submitted: January 15, 2019

Filed: February 22, 2019

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Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Jonathan Jaciel Zazueta, a citizen of Mexico, petitions for review of an order

of theBoard ofImmigration Appeals (BIA) upholding the decision of an immigration

judge (IJ) finding him removable under the Immigration and Nationality Act (INA),

8 U.S.C. §§ 1101-1537. Having jurisdiction pursuant to 8 U.S.C. § 1252, we deny

the petition.
Zazueta became a lawful permanent resident of the United States in August

2004. In January 2009, he pled guilty in Iowa state court to possession with intent

to deliver a controlled substance (crack cocaine) in violation of Iowa Code

§§ 124.401(1)(c)(3), 124.206(2)(d), and 703.1. The court deferred judgment and

placed Zazueta on 4 years probation under Iowa Code §§ 901.5 and 907.3. Months

later, an Iowa state court jury found Zazueta guilty of a second offense, seconddegree robbery, in violation of Iowa Code § 711.3. Because the robbery conviction

constituted a violation of Zazueta’s probation fromhis controlled-substance deferred

judgment, the state court revoked the deferred judgment and probation and sentenced

him to a term not to exceed ten years for that crime. 

The robbery conviction was vacated in 2016 due to ineffective assistance of

counsel and dismissed in 2017. Zazueta then moved to vacate his controlledsubstance conviction and reinstate the deferred judgment. While his motion was

pending, the Department of Homeland Security initiated removal proceedings against

Zazueta. The state court judge reinstated his deferred judgment on the controlledsubstance conviction, vacated and set aside the probation revocation and conviction,

allowed the withdrawal of his guilty plea, and dismissed the case. In doing so, the

court emphasized that Zazueta had been “rehabilitated” such that “[c]ontinuing

probation would serve no rehabilitative purpose.” Admin. R. 3, ECF No. 4622584.

Zazueta then moved to terminate his removal proceedings before the IJ,

arguing he no longer had a “conviction” for immigration purposes. The IJ denied his

motion after determining the withdrawal of his guilty plea “was merely a function of

his completion of the deferred judgment[.]” Admin. R. 69. Thus, Zazueta still had

a requisite “conviction” and was removable under the INA as an alien convicted of

an aggravated felony and as an alien convicted of an offense related to a controlled

substance. 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(B)(i). The IJ ordered Zazueta

removed to Mexico.

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Zazueta appealed to the BIA. The BIA dismissed the appeal, agreeing with the

IJ that Zazueta’s 2009 Iowa deferred judgment constituted a “conviction” for

immigration purposes because the judgment was not deferred until after Zazueta pled

guilty to possession of crack cocaine with intent to deliver. The BIA further found 

that the deferred judgment wasrevoked due to Zazueta’srobbery conviction and then

reinstated after the robbery conviction was set aside because Zazueta “had already

served [eight] years in prison, he testified that he had ‘rehabilitated,’ and the court

concluded that ‘[c]ontinuing probation would serve no rehabilitative purpose.’”

Admin.R. 5 (second alteration in original). Because the drug conviction was vacated

for rehabilitative purposes, it remained a “conviction” for immigration purposes.

Accordingly, the BIA affirmed the IJ’s decision.

Because Zazueta does not dispute that a deferred judgment may “constitute[]

a ‘conviction’ for immigration purposes,” Pet’r’s Reply Br. 8, he argues on appeal

that the withdrawal of his guilty plea and vacatur of the deferred judgment have

removed any “conviction” under the applicable immigration statutes.

1 We review

such legal determinations by the BIA “de novo, according substantial deference to the

BIA’sinterpretation of the statutes and regulationsit administers.” Ramirez-Barajas

v. Sessions, 877 F.3d 808, 810 (8th Cir. 2017), cert. denied, 135 S. Ct. 584 (2018) . 

“Though we ordinarily review only the BIA’s decision, we also review the IJ’s

decision as part of the final agency action if the BIA adopted the findings or the

1Zazueta also argued that the BIA erred by not considering whether his drug

offense constituted a removable offense. However, in his Reply Brief, Zazueta

conceded that this court lacks jurisdiction to hear that claim because he did not raise

it before the BIA. Reply Br. at 10. Therefore, we need not address the issue. See

Sultani v. Gonzales, 455 F.3d 878, 884 (8th Cir. 2006) (“Failure to raise an issue

before the agency constitutes a failure to exhaust administrative remedies and

deprives this court of jurisdiction to hear the matter.”); United States v.

Hammerschmidt, 881 F.3d 633, 640 (8th Cir. 2018) (declining to discuss an issue

conceded in a reply brief).

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reasoning of the IJ.” Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (internal

quotation marks omitted).

For immigration purposes, a “conviction” is broadly defined as “a formal

judgment of guilt of the alien entered by a court or, if adjudication of guilt has been

withheld, where . . . 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 . . . the judge has ordered some form of punishment, penalty, or

restraint on the alien’s liberty.” 8 U.S.C. § 1101(a)(48)(A). “[E]ven in cases where

adjudication is deferred the original finding or confession of guilt is sufficient to

establish a conviction for purposes of the immigration laws.” Mendoza-Saenz v.

Sessions, 861 F.3d 720, 723 (8th Cir. 2017) (quoting Herrera-Inirio v. INS, 208 F.3d

299, 305-06 (1st Cir. 2000));see also In re Marroquin-Garcia, 23 I&N Dec. 705, 715

(BIA 1997) (noting “conviction” envelopsinstances where a defendant pleads guilty

and a “judge has withheld a formal adjudication of guilt but has nevertheless imposed

penalties or restraints upon the defendant’s liberty” (internal quotation marks

omitted)). “If a court vacates an alien’s criminal conviction for a reason unrelated to

the merits of the case—such as to avoid immigration consequences or for

rehabilitative reasons—rather than to correct a procedural or substantive defect, the

conviction will still stand for immigration purposes despite its vacatur.” AndradeZamora v. Lynch, 814 F.3d 945, 948 (8th Cir. 2016).

Here, Zazueta’s reinstated deferred judgment qualifies as an immigration

“conviction” under 8 U.S.C. 1101(a)(48)(A) because Zazueta “entered a plea of

guilty” and, in response, the IJ ordered a “restraint on [his] liberty”: deferred

judgment and probation. Furthermore, the reinstatement of the deferred judgment

was not intended “to correct a procedural or substantive defect” in the underlying

offense. Andrade-Zamora, 814 F.3d at 948. The state court’s language makes clear

that its vacatur was grounded in “rehabilitative reasons,” see id., repeatedly

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emphasizing rehabilitation without noting any infirmity in the controlled-substance

charge:

The court cannot ignore the applicant’s testimony that he has indeed

learned that crime does not pay. The court cannot ignore the fact that

the applicant has a committed family and children that would benefit

from his involvement. It is only equitable that the deferred judgment be

reinstated. It is probable that the defendant has been rehabilitated. The

purpose for probation, i.e. rehabilitation, has likely been achieved.

Continuing probation would serve no rehabilitative purpose.

Admin. R. 192.

It is not dispositive that Zazueta brought his claim for withdrawal of his guilty

plea under Iowa Code chapter 822, which he alleges requires legal error. The

language of chapter 822 is broader than Zazueta contends, allowing claims involving

“evidence ofmaterialfacts, not previously presented and heard, thatrequires vacation

of the conviction or sentence in the interest of justice.” Iowa Code § 822.2(1)(d).

Furthermore, the state court concluded its order allowing withdrawal of his guilty

plea by citing another statute, Iowa Code § 907.3(1). Admin. R. 193. Zazueta does

not dispute that a deferred judgment under § 907.3(1) “constitutes a ‘conviction’ for

immigration purposes[.]” Pet’r’s Reply Br. 8. Therefore, the BIA did not err in

concluding that Zazueta had a “conviction” for removal purposes.

For the foregoing reasons, we deny the petition.

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