PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 16-1147


ELEUTERIO PAYAN JAQUEZ, a/k/a Eleuterio Payan,

                    Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

                    Respondent.



       On Petition for Review of an Order of the Board of Immigration Appeals.


Argued: March 21, 2017                                          Decided: June 8, 2017


Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.


Petition for review denied by published opinion. Chief Judge Gregory wrote the opinion,
in which Judge Wynn and Judge Harris joined.


ARGUED: Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE, PLLC,
Alexandria, Virginia, for Petitioner. Gregory Michael Kelch, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Linda S. Wernery,
Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Chief Judge:

       Eleuterio Payan Jaquez, a citizen and native of Mexico, petitions for review of a

Board of Immigration Appeals (“BIA”) order affirming an Immigration Judge’s (“IJ”)

decision finding him ineligible for cancellation of removal pursuant to 8 U.S.C.

§ 1229b(b)(1)(C). Payan Jaquez contends that the BIA erred in determining that his 2005

criminal proceedings under Virginia Code § 18.2-251 for possession of cocaine

constituted a “conviction” as defined in 8 U.S.C. § 1101(a)(48)(A). Because Payan

Jaquez’s 2005 proceedings fall squarely within the plain text of § 1101(a)(48)(A), we

deny the petition for review.



                                              I.

       On June 6, 1989, Payan Jaquez was lawfully admitted to the United States as a

conditional permanent resident based on his marriage to a United States citizen, Carol

Trevino. Conditional permanent residents must petition to remove the conditions on their

residency within ninety days of the second anniversary of their lawful admission, but

Payan Jaquez failed to do so and his legal status terminated in 1991. 8 U.S.C. § 1186a.

He filed a petition in 2006, but it was denied.

       Payan Jaquez separated from Ms. Trevino in 1989 and their divorce was finalized

in 2004. He married another United States citizen, Sheila Johns, in 2005. They had two

children together, born in 1993 and 1997, one of whom suffers from autism, ADHD,

mental retardation, seizure disorder, and cerebral palsy. Payan Jaquez had a third United

States citizen child with Elsa Monty Retina in 2009.

                                              2
       Payan Jaquez was charged with possession of cocaine in December 2004, in

violation of Virginia Code § 18.2-250.          On May 23, 2005, he pled guilty in

Charlottesville Circuit Court to the possession charge. The judge found that Payan

Jaquez made the plea freely, voluntarily, and intelligently. He accepted Payan Jaquez’s

guilty plea and continued the case for sentencing.

       On November 3, 2005, the judge sentenced Payan Jaquez pursuant to Virginia

Code § 18.2-251, which applies to first-time offenders. The judge vacated the finding of

guilt and deferred adjudication, placing Payan Jaquez on probation for twelve months

under conditions including good behavior, full-time employment, and abstention from

alcohol and drugs. On December 18, 2007, upon Payan Jaquez’s successful completion

of the probationary period, the judge dismissed the cocaine charge pursuant to § 18.2-

251.

       The Department of Homeland Security (“DHS”) issued a Notice to Appear to

Payan Jaquez on June 6, 2008. The notice alleged that Payan Jaquez was removable

because he failed to request removal of the conditional basis for his permanent residence

by December 17, 1991 and due to his 2005 cocaine conviction. At a hearing before the

IJ, Payan Jaquez admitted both grounds for removal.

       In 2009, Payan Jaquez filed an application for cancellation of removal. In support

of his application, he cited his continuous physical presence in the United States for more

than ten years. He also indicated that his removal would result in extreme hardship for

his United States citizen child who suffers from numerous medical conditions.



                                            3
        In 2014, DHS filed a motion to pretermit Payan Jaquez’s cancellation of removal

application. DHS argued that his cocaine conviction precluded him from relief because

applicants are ineligible for cancellation if they have been convicted of certain offenses.

Payan Jaquez opposed the motion on the grounds that he had not been “convicted,” as the

term is defined in § 1101(a)(48)(A), because he did not meet the requisite elements: a

sufficient finding of guilt and imposition of some form of punishment.

        The IJ issued a written opinion, finding that Payan Jaquez’s conviction rendered

him ineligible for cancellation of removal under § 1229b(b)(1)(C). The IJ concluded that

Payan Jaquez’s 2005 criminal proceedings qualified as a conviction in which

adjudication was deferred because Payan Jaquez pled guilty and was placed on probation.

The IJ found Payan Jaquez removable under 8 U.S.C. § 1227 and ineligible for

cancellation of removal, but granted him the ability to voluntarily depart within sixty

days.

        Payan Jaquez appealed the decision to the BIA, and the BIA issued an opinion

dismissing the appeal. The BIA agreed with the IJ that the conviction was valid for

immigration purposes. Payan Jaquez pled guilty and the judge vacated the finding of

guilt “pursuant to the state rehabilitative statute.” J.A. 15. The BIA also found that

“probation is a form of punishment, penalty, or restraint on an alien’s liberty,” as required

by § 1101(a)(48)(A). 

of Punu, 22 I. & N. Dec. 224, 228 (BIA 1998)).

Thus, the BIA affirmed the IJ’s decision, but remanded because the IJ failed to provide

Payan Jaquez with certain advisals regarding voluntary departure as 8 C.F.R.



                                             4
§ 1240.26(c)(3) commands. On remand, the IJ was to provide those advisals and enter a

new voluntary departure order.

       Payan Jaquez timely petitioned for review of the BIA’s order to this Court.



                                            II.

       We generally lack jurisdiction to review orders of removal when an alien is

removable for a controlled substance conviction, 8 U.S.C. § 1252(a)(2)(C), but because

this case involves a question of law, we retain jurisdiction to review the BIA’s order. 1 8

U.S.C. § 1252(a)(2)(D).     The “purely legal question” presented is whether Payan

Jaquez’s deferred adjudication under Virginia Code § 18.2-251 qualifies as a conviction

for immigration purposes under § 1101(a)(48)(A). Crespo v. Holder, 

, 133

(4th Cir. 2011).

       This Court reviews this question of law de novo, Castillo v. Holder, 

,

267 (4th Cir. 2015), subject to Chevron deference. 

(citing

       1
          This case is distinct from Qingyun Li v. Holder in which we declined to take
jurisdiction for “prudential reasons.” 

, 151-53 (4th Cir. 2011). In Li, as in
this case, the BIA upheld the IJ’s decision but remanded for “required advisals” and a
new voluntary departure order. 

However, when we decided Li, the IJ had
not yet granted a new voluntary departure order, allowing Li to petition for review of her
removal order and return to the IJ for voluntary departure if she did not succeed. 

This would have been contrary to Dada v. Mukasey, 

, 21 (2008), and 8
C.F.R. § 1240.26, which hold that an alien must choose between a judicial challenge and
voluntary departure. 

case, the IJ granted Payan Jaquez a new voluntary
departure order on May 5, 2016. Since he did not depart by June 5, 2016 as the order
mandated, Payan Jaquez chose to pursue judicial relief rather than voluntary departure.
See Almutairi v. Holder, 

, 1000-02 (7th Cir. 2013) (taking jurisdiction
because the alien’s window to voluntarily depart under a new order had expired and thus
his “only remaining avenue for relief” was his petition for review).

                                            5
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

(1984)). Thus, the

statutory language controls if Congress has spoken clearly on the question, but if the

statute is silent or ambiguous, this Court will defer to the BIA’s reasonable interpretation.

(citing Ramirez v. Holder, 

, 334 (4th Cir. 2010)).

                                             A.

       The Attorney General may cancel removal and grant permanent resident status to

an alien if he or she (i) has been present in the United States continuously for ten years;

(ii) has been a person of good moral character; (iii) has not been convicted of offenses

under certain statutes, including 8 U.S.C. § 1227(a)(2); and (iv) shows that removal

would result in exceptional hardship to a U.S. citizen or lawful permanent resident

spouse, parent, or child. 8 U.S.C. § 1229b(b)(1).

       This case concerns the third requirement for cancellation of removal eligibility.

An alien is removable, and ineligible for cancellation, if he or she has been convicted of

violating a state or federal law or regulation relating to a controlled substance. 2 8 U.S.C.

§ 1227(a)(2)(B)(i). The term “conviction” as used in this provision is defined as:

       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.

       2
         Payan Jaquez does not contest that cocaine possession is a violation relating to a
controlled substance.

                                             6
8 U.S.C. § 1101(a)(48)(A). Thus, there are two possible ways to find a conviction:

where there has been a formal judgment of guilt, and where adjudication has been

deferred. 

.

       Payan Jaquez’s case involves the second avenue, a deferred adjudication under

Virginia law. A conviction in a deferred adjudication situation requires two elements:

“(i) [a] sufficient finding of support for a conclusion of guilt, and (ii) the imposition of

some form of punishment.” 

(alteration in the original) (quoting

Griffiths v. I.N.S., 

, 53 (1st Cir. 2001)). The first element can be found in five

different circumstances: “a finding of guilt by a judge or jury (i.e., a trial), a plea of guilt,

a plea of no contest, or an admission by the alien of facts sufficient to find guilt.”

(citing 8 U.S.C. § 1101(a)(48)(A)(i)).

                                               B.

       Payan Jaquez’s 2005 criminal proceedings fall squarely within the definition of a

deferred adjudication conviction under § 1101(a)(48)(A)(i). The proceedings meet the

first element, a sufficient finding of guilt, because Payan Jaquez “entered a plea of guilty”

to possession of cocaine in Charlottesville Circuit Court. 8 U.S.C. § 1101(a)(48)(A)(i).

A guilty plea is one of the five possible ways to satisfy the first element. 

. In this case, Payan Jaquez pled guilty, and the judge accepted his plea,

finding it “freely, voluntarily, and intelligently made.” J.A. 164. Thus, according to the

plain language of the statute, Payan Jaquez’s adjudication satisfies the first prong of the

conviction test for a deferred adjudication.



                                               7
       Payan Jaquez’s proceedings also satisfy the second prong of the test, which

requires “some form of punishment, penalty, or restraint on the alien’s liberty.” 8 U.S.C.

§ 1101(a)(48)(A)(ii). Probation is “most certainly a form of punishment or penalty and a

restraint on one’s liberty.” Dung Phan v. Holder, 

, 452 (4th Cir. 2012). The

Charlottesville judge placed Payan Jaquez on probation for one year and mandated

numerous conditions, including good behavior, full-time employment, and abstention

from alcohol and drugs. These probationary conditions constitute a form of punishment,

penalty, or restraint on Payan Jaquez’s liberty, and therefore meet the second element of a

conviction. 

language of the statute regarding a conviction in a deferred

adjudication situation encompasses Payan Jaquez’s proceedings. According to the clear

text, the BIA did not err in finding that Payan Jaquez was convicted, and our inquiry is

complete. See Rubin v. United States, 

, 430 (1981) (observing that when the

words of a statute are unambiguous, judicial inquiry ends).

      Nevertheless, Payan Jaquez makes two arguments as to why he was not convicted.

First, Payan Jaquez attempts to impose a temporal requirement upon the two conviction

elements, arguing that although he pled guilty on May 23, 2005, the judge did not

sentence him to probation until November 3, 2005.             But while the language of

§ 1101(a)(48)(A) requires both a sufficient finding of guilt and some form of punishment,

it does not require that the two elements be entered or imposed simultaneously. The use

of “and” in the statute indicates that the elements are conjunctive, e.g., Johnson v.

Advance America, 

, 935 (4th Cir. 2008), but nothing in the text even

                                            8
suggests that a finding of guilt and a punishment be entered at the same hearing on the

same day. We have previously declined to look past the unambiguous language of this

particular statute, and we do the same here. 

(refusing to

essentially amend the statute as the government requested).

      Not only does the statutory text lack evidence that Congress meant for the

elements to be met simultaneously, but the legislative history indicates that such a

temporal requirement would be directly contrary to Congressional intent. See Consumer

Prod. Safety Comm’n v. GTE Sylvania, Inc., 

, 108 (1980) (stating that a

court may look past statutory language only if there is a “clearly expressed legislative

intention” contrary to the language). When Congress amended § 1101(a)(48)(A) so that a

“conviction” would include either a formal judgment of guilt or certain circumstances in

which adjudication is withheld, it intended to address the “myriad of provisions for

ameliorating the effects of a conviction” in state laws. H.R. Rep. No. 104-828, at 223-24

(1996) (Conf. Rep.). As a result of these laws, “aliens who have clearly been guilty of

criminal behavior and whom Congress intended to be considered ‘convicted’ have

escaped the immigration consequences normally attendant upon a conviction.” 

Adding Payan Jaquez’s proposed temporal requirement, with the result that a

deferred adjudication under Virginia law would not qualify as a conviction under

§ 1101(a)(48)(A), would be contrary to Congress’ intent to promote uniformity, because

it would make the statute “dependent on the vagaries of State law.” 

(quoting Matter of Punu, 22 I. & N. Dec. at 229).



                                            9
       Payan Jaquez also suggests that his guilty plea was “vacated” and therefore

“void,” Pet’r’s Br. 10, by the time he was sentenced to probation on November 3, 2005,

so that there was no effective finding of guilt when he was punished. We need not

consider in this case whether the statutory definition of “conviction” could be satisfied

under such circumstances, because Payan Jacquez’s plea was not actually vacated; only

the finding of guilt was vacated. As a prerequisite to first offender status under Virginia

law, the defendant must enter a plea, 3 and the court must find facts that would justify a

finding of guilt. Va. Code § 18.2-251. The Charlottesville judge relied upon Payan

Jaquez’s guilty plea to invoke Virginia’s first offender statute, defer adjudication, and

place Payan Jaquez on probation. Therefore, as required by § 18.2-251, the guilty plea,

which satisfies the first element of a conviction, remained in effect when the judge

ordered probation, satisfying the second element.

       Payan Jaquez’s second argument is that his case is “exactly like Crespo,” in which

this Court held that a trial court’s finding of sufficient evidence to justify guilt did not

meet the definition of a conviction. Pet’r Br. 9. That argument, too, is unsuccessful,

because the two cases are decidedly distinct. In Crespo, we considered the same question

presented here:    whether a deferred adjudication under Virginia Code § 18.2-251

constitutes a “conviction” for immigration 

. We found that

the deferred adjudication in that case did not meet the definition of a conviction under

§ 1101(a)(48)(A) because Crespo pled not guilty to marijuana possession. 

       3
        That plea may be guilty, as in this case, or not guilty, as in Crespo. Va. Code
§ 18.2-251.

                                            10
136. Instead, the judge found facts justifying a finding of guilt in order to defer Crespo’s

adjudication under § 18.2-251, which is not one of the five possibilities for a sufficient

finding of guilt. 4 

       Unlike Crespo, Payan Jaquez did plead guilty to cocaine possession before the

judge invoked § 18.2-251. We indicated in dicta that if Crespo had instead pled guilty

before having his sentence deferred, “the adjudication would qualify as a conviction

under § 1101(a)(48)(A),” rendering him ineligible for immigration relief. 

The

scenario envisioned in Crespo is exactly what happened in Payan Jaquez’s case. His

criminal proceedings, which included a guilty plea and probation, fall squarely within

§ 1101(a)(48)(A), rendering him ineligible for cancellation of removal. 

       We recognize that Crespo and this case reflect a disparity between defendants who

plead guilty under the Virginia first offender statute and those who plead not guilty, but

the text of § 1101(a)(48)(A) is clear. Congress drew a line encompassing five situations

that constitute a sufficient finding of guilt, and Payan Jaquez’s guilty plea is one of those

situations. 

       Payan Jaquez’s deferred adjudication under Virginia Code § 18.2-251 falls within

the unambiguous definition of a conviction in § 1101(a)(48)(A). Payan Jaquez pled

guilty to possession of cocaine in Charlottesville Circuit Court and the judge placed him

on probation. Thus, both statutory elements of a conviction were satisfied in his case.


       4
          A sufficient finding of guilt requires the alien to admit facts sufficient to find
guilt, rather than the judge finding sufficient facts. 

(citing 8
U.S.C. § 1101(a)(48)(A)(i)).

                                             11
                                           III.

      The BIA did not err in upholding the IJ’s decision finding Payan Jaquez ineligible

for cancellation of removal, and Payan Jaquez’s petition for review is denied.



                                                      PETITION FOR REVIEW DENIED




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