Viveiros v. Holder
692 F.3d 1
1st Cir.2012Background
- Portuguese national petitioning for review of BIA removal order; he was a lawful permanent resident since 1984 living in Massachusetts.
- Petitioner pleaded guilty to Massachusetts shoplifting and larceny; larceny resulted in 18 months probation; shoplifting fine of $250 was imposed.
- Shoplifting fine was later waived/vacated by court instruction, with docket indicating a guilty finding and no fines or costs.
- DHS charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) based on two crimes of moral turpitude (shoplifting and larceny).
- IJ denied the motion to terminate removal; BIA affirmed; petitioner argues shoplifting was not a conviction under immigration law due to vacatur of the fine.
- Court concludes the shoplifting disposition constitutes a formal judgment of guilt for immigration purposes and vacatur for non-error reasons does not erase the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether shoplifting is a conviction under §1227(a)(2)(A)(ii) | Viveiros contends no conviction since fine was vacated | Agency held that a formal judgment of guilt exists under 8 U.S.C. §1101(a)(48)(A) | Yes; shoplifting constitutes a formal judgment of guilt for immigration purposes |
| Effect of vacating the fine on conviction status | Vacating the fine should erase the conviction | Vacatur of a fine does not erase a prior formal conviction if vacatur is not due to procedural/substantive error | Vacatur for reasons other than procedural/substantive error does not dissipate the underlying conviction |
Key Cases Cited
- Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000) (formal judgment concept and immigration conviction scope)
- Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 2006) (conviction remains even if vacated in certain contexts)
- Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) (punishmentirrelevance to 'formal judgment' inquiry)
- El Moraghy v. Ashcroft, 331 F.3d 195 (1st Cir. 2003) (de novo review of agency legal conclusions in immigration cases)
- Singh v. Holder, 568 F.3d 525 (5th Cir. 2009) (defines 'formal judgment of guilt' with sentencing considerations)
- Mejia Rodriguez v. U.S. DHS, 629 F.3d 1223 (11th Cir. 2011) (conviction requires guilty finding and sentence (per curiam))
- Duncan v. Walker, 533 U.S. 167 (2001) (statutory interpretation and omission of punishment term in different definitions)
- Dung Phan v. Holder, 667 F.3d 448 (4th Cir. 2012) (vacatur jurisprudence in immigration context)
- Poblete Mendoza v. Holder, 606 F.3d 1137 (9th Cir. 2010) (vacatur impact on conviction)
- Saleh v. Gonzales, 495 F.3d 17 (2d Cir. 2007) (second definition of conviction and punishment requirement)
- Cruz v. Att'y Gen. of U.S., 452 F.3d 240 (3d Cir. 2006) (interpretation of conviction definitions under §1101(a)(48))