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appealsustained

statuteappealtrialpleasustained

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Planes v. Holder

Facts

Michael Angelo Planes, a native and citizen of the Philippines and a lawful permanent resident of the United States, was ordered removed by an Immigration Judge (IJ) due to his convictions for two crimes involving moral turpitude: passing a bad check in violation of California Penal Code 476a(a) in 1998 and possession of access devices with intent to defraud in violation of 18 U.S.C. 1029(a)(3) in 2004. Although Planes appealed the sentence for the 1029(a)(3) offense, he did not appeal the conviction itself. The IJ denied his request for cancellation of removal, and the BIA affirmed the IJ's decision.

Planes is a native and citizen of the Philippines and a lawful permanent resident of the United States. After entering the United States in July 1981, he sustained two relevant criminal convictions. In 1998, he pleaded guilty and was convicted of delivering or making a check with insufficient funds with intent to defraud, in violation of California Penal Code 476a(a). In 2004, he pleaded guilty to and was convicted of possessing 15 or more 'access devices,' in violation of 18 U.S.C. 1029(a)(3). Planes subsequently appealed the sentence imposed for the 1029(a)(3) offense, but did not appeal the conviction itself.

Issue

Did the BIA err in concluding that Planes was removable under 8 U.S.C. 1227(a)(2)(A)(ii) because he was 'convicted of two or more crimes involving moral turpitude'?

Did the BIA err in concluding that Planes was removable under 1227(a)(2)(A)(ii) because he was not 'convicted of two or more crimes involving moral turpitude'?

Rule

The term 'conviction' under 8 U.S.C. 1101(a)(48)(A) means a formal judgment of guilt entered by a court, and does not require that all direct appeals be exhausted or waived.

The term 'conviction' means, with respect to an alien, 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. 8 U.S.C. 1101(a)(48)(A).

Analysis

The court applied the definition of 'conviction' from the INA, concluding that Planes had sustained a conviction for the 1029(a)(3) offense since the district court had entered a formal judgment of guilt. The court noted that the remand for sentencing did not affect the conviction itself, and thus the BIA correctly determined that Planes was convicted of two crimes involving moral turpitude.

In light of our interpretation of the statute, we conclude that the first definition of 'conviction' in 1101(a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived. In reaching this conclusion, we join the well-reasoned opinions of the Second, Fifth, Seventh, and Tenth Circuits.

Conclusion

The court dismissed the petition for review, affirming the BIA's decision that Planes was removable based on his convictions.

Accordingly, we conclude that Planes has sustained a 'conviction' for the 1029(a)(3) offense. There is no dispute that the district court entered a formal judgment of guilt with respect to Planes's conviction under 1029(a)(3).

Who won?

The government prevailed in the case as the court upheld the BIA's decision to affirm the removal order.

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