                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2008

Alcaraz-Villamil v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3589




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                                                                    NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT

                                          No: 06-3589

                                     ANYELO ALCARAZ

                                            Petitioner,

                                                 v.

                     ATTORNEY GENERAL OF THE UNITED STATES
                                  Respondent

                     Appeal from Immigration and Naturalization Services,
                               (Agency File No. A46-000-170)

                        Submitted Pursuant to Third Circuit LAR 34.1(a)
                                       February 4, 2008

                           Before: McKEE, AMBRO, Circuit Judges
                              and IRENAS*, Senior District Judge

                                      (Filed: June 6, 2008)

                                            OPINION


McKEE, Circuit Judge.

       Anyelo Alcaraz petitions for review of a decision of the Board of Immigration Appeals

affirming the Immigration Judge’s ruling that he is ineligible for cancellation of removal under 8

U.S.C. 1229b(a).1 For the reasons that follow we will deny the Petition.

                                                I.


*The Honorable Joseph E. Irenas, Senior District Judge of the District of New Jersey, sitting by
designation.
1
 Alvarez violated New York Penal Law § 221.10 and was sentenced to a conditional discharge of
one year and had his driver’s license suspended for six months.
        Alcaraz claims that the IJ erred in concluding that his May 8, 2003 adjudication was a

“conviction” for immigration purposes and that his October 7, 2003 conviction made him

statutorily ineligible to apply for cancellation of removal under 8 U.S.C. § 1229b. We disagree.

        8 U.S.C. § 1101(a)(48)(A), defines “conviction” as “a formal judgment of guilt...entered

by a court.” Id. The May 8, 2003 conviction in New York Criminal Court, County of Queens, for

fifth degree criminal possession of marijuana, in violation of New York Penal Law § 221.10 falls

within that definition of “conviction.”

        Alcaraz’s argument to the contrary rests upon a fundamental misreading of §

1101(a)(48)(A). He argues that that statute requires both a formal judgment of guilt and the

imposition of some form of punishment, penalty or restraint on the alien’s liberty. However, the

statute is clearly written in the disjunctive, not in the conjunctive. Section 1101(a)(48)(A) reads,

in pertinent part: “The term ‘conviction’ means, with respect to an alien, a formal judgment of

guilt of the alien entered by a court or, if the adjudication of guilt has been withheld, where...(ii)

the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be

imposed.” Id. (emphasis added). See also Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir.

2003)(“[§ 1101(a)(48)(A)] provides that, in cases where no formal judgment of guilt has been

entered by a court, an alien will be considered to have been convicted for the purposes of the INA

if the disposition of the alien’s criminal proceeding satisfied the two part test in [the statute.]”).

The statute was no doubt intended to address situations involving diversionary programs that

may not result in any immediate sanction.

                                                  II.

        Since Alcaraz’s May 2003 offense is a conviction for purposes of § 1229b(a)(2),


                                                   2
he has never established the 7-year period of continuous residence or continuous physical

presence in the United States required for cancellation of removal. Thus, when he was convicted

of the second offense on October 7, 2003, he became ineligible for cancellation of removal.

       Alcaraz’s argument that the IJ erred in concluding that the October 7, 2003 conviction

rendered him statutorily ineligible for relief rests on the erroneous premise that it did not qualify

as his second conviction. Alcaraz argues that the October 18, 2005 conviction, and not the

October 7, 2003 conviction, qualifies as his second conviction because he fails to realize the

effect of the May 2003 conviction under immigration law.

                                                 III,

       Alcaraz also claims that his he was denied due process because he was not able to seek

the cancellation of removal “for which he was clearly eligible.” Petitioner’s Br. at 18. However,

as we have explained, he is not eligible for cancellation of removal because of his convictions in

New York in May, 2003, and October 2003.

                                                 IV.

               For all of the above reasons, we will deny the Petition for Review.




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