Submitted: January 15, 2019
Petition for Review of an Order of the Board of Immigration
GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Jaciel Zazueta, a citizen of Mexico, petitions for review of
an order of the Board of Immigration 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.
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, second-degree robbery, in violation of
Iowa Code § 711.3. Because the robbery conviction
constituted a violation of Zazueta's probation from his
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.
robbery conviction was vacated in 2016 due to ineffective
assistance of counsel and dismissed in 2017. Zazueta then
moved to vacate his controlled-substance 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 controlled-substance
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.
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.
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 was
revoked due to Zazueta's robbery 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.
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. We review such
legal determinations by the BIA "de novo,
according substantial deference to the BIA's
interpretation of the statutes and regulations it
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 reasoning of the IJ." Etenyi v.
Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (internal
quotation marks omitted).
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" envelops instances 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." Andrade-Zamora v. Lynch, 814 F.3d
945, 948 (8th Cir. 2016).
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 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. ...