Argued: March 20, 2018
Petition for Review of an Order of the Board of Immigration
Japheth Nthautha Matemu, MATEMU LAW OFFICE, PC, Raleigh,
North Carolina, for Petitioner.
S. Conrad, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
A. Readler, Acting Assistant Attorney General, Derek C.
Julius, Assistant Director, Patricia E. Bruckner, Office of
Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WYNN, FLOYD, and HARRIS, Circuit Judges.
Jose Guzman Gonzalez entered the United States illegally in
the early 2000s. Several years later, Guzman pleaded guilty
in North Carolina state court to misdemeanor possession of a
small amount of marijuana. The state court withheld
adjudication of guilt, instead entering a verdict of prayer
for judgment continued and assessing Guzman $100 in court
question presented for our review is purely legal: does the
imposition of $100 in court costs, assessed attendant to a
prayer for judgment continued under North Carolina law,
qualify as a "conviction" within the meaning of the
Immigration and Naturalization Act (the "Act")? 8
U.S.C. § 1101 et seq.; id. §
1101(a)(48)(A). The Board of Immigration Appeals (the
"Board") held that it does. We disagree.
Accordingly, we grant Guzman's petition for review,
reverse the Board's Order, and remand Guzman's case
for further proceedings consistent with this opinion.
left his native El Salvador and entered the United States
illegally, likely in December 2000. In August 2002, Guzman
received a North Carolina citation for misdemeanor possession
of up to one-half of an ounce of marijuana, in violation of
N.C. Gen. Stat. § 90-95(d)(4). Three months later,
Guzman pleaded guilty to the offense in the state district
court, sitting in Wake County, North Carolina. At that time, the
state court entered a verdict of "prayer for judgment
continued" and assessed $100 in court costs. The court
did not impose restitution or order Guzman to pay a fine.
years later-in 2015-the Department of Homeland Security
("Homeland Security") charged Guzman with
removability from the United States, a charge that Guzman
conceded. However, Guzman applied for cancellation of removal
as a non-permanent resident under 8 U.S.C. §
1229b(b)(1). Homeland Security orally moved to pretermit the
application, arguing that Guzman's prior offense for
misdemeanor marijuana possession barred cancellation because
it satisfied the relevant federal statutory definition of
"conviction" for a controlled substance offense.
See 8 U.S.C. §§ 1229b(b)(1)(C),
Immigration Judge presiding over Guzman's removal
proceedings granted Homeland Security's oral motion. In
particular, the Immigration Judge determined that the
state-court resolution of Guzman's misdemeanor possession
charge satisfied the Act's statutory definition of
"conviction" because Guzman had both pleaded guilty
to the underlying offense and "paid $100 in costs"
attendant to his plea. A.R. 41. As the sole support for this
determination, the Immigration Judge cited a 2008 opinion
issued by the Board of Immigration Appeals concluding that
costs and surcharges imposed in the criminal sentencing
context satisfy the Act's relevant definitions.
Id. (citing In re Cabrera, 24 I. & N.
Dec. 459, 462 (B.I.A. 2008)).
appealed the Immigration Judge's determination to the
Board. The Board summarized and agreed with the Immigration
Judge's analysis, also citing Cabrera as its
sole support, and therefore dismissed ...