                                                                                     [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________           FILED
                                                         U.S. COURT OF APPEALS
                                      No. 09-14273         ELEVENTH CIRCUIT
                                                             JANUARY 4, 2011
                                ________________________
                                                                JOHN LEY
                                                                 CLERK
                           D. C. Docket No. 08-20273-CV-JLK

ERNESTO ALONSO MEJIA RODRIGUEZ,


                                                                           Plaintiff-Appellant,

                                             versus

U.S. DEPARTMENT OF HOMELAND SECURITY,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES,


                                                                       Defendants-Appellees.


                                ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             _________________________

                                       (January 4, 2011)

Before CARNES, KRAVITCH and SILER,* Circuit Judges.


       *
         Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
PER CURIAM:

       The Department of Homeland Security (DHS) can grant temporary

protective status (TPS) to an otherwise removable alien unable to return to his

native country due to ongoing armed conflict, environmental disasters, or other

extraordinary and temporary conditions.1 8 U.S.C. § 1254a(b)(1)(B)(i). An alien

who has been convicted of two or more misdemeanors, however, is ineligible for

TPS. 8 C.F.R. § 1244.4. Ernesto Alonzo Mejia Rodriguez (Mejia), a native and

citizen of Honduras, was denied renewal of his TPS in 2005 when the DHS’s

Citizenship and Immigration Service (CIS) concluded that he was ineligible

because of his misdemeanor convictions. Mejia filed a complaint in federal court

seeking a declaratory judgment that his 1986 guilty plea in state court to possession

of marijuana and driving with a suspended license was not a “conviction.” The

district court dismissed the complaint for lack of jurisdiction, but this court

reversed and remanded for consideration of the merits. Mejia Rodriguez v. U.S.

Dep’t of Homeland Sec., 562 F.3d 1137 (11th Cir. 2009).

       This case is now before us a second time after the district court denied

Mejia’s claim on the merits. We must now decide whether a guilty plea and a

finding of guilt, with a sentence of time served, qualifies as a “conviction” under 8


       1
       We discussed TPS in detail in our previous decision. Mejia Rodriguez v. U.S. Dep’t of
Homeland Sec., 562 F.3d 1137 (11th Cir. 2009). We need not recount it here.

                                             2
U.S.C. § 1101(a)(48). We hold that it does.



                                                I.

       Mejia entered the United States in November 1980 on a B-2 visa. He

overstayed his visa and was ultimately ordered to be deported. Mejia applied for

and received TPS after Hurricane Mitch struck Honduras. He was permitted to

renew his status from 1999 through 2004.

       In 2005, however, the CIS rejected Mejia’s request for renewal, citing

several prior convictions as the basis for his ineligibility. All of the prior

convictions, except two, were later vacated. The remaining convictions on which

the CIS relied were a 1985 turnstile-jumping conviction, which Mejia concedes is a

conviction under § 1101(a)(48), and the 1986 “conviction” at issue here.

       In 1986, Mejia was charged in state court with marijuana possession and

driving with a suspended license. According to the state-court records,2 Mejia’s

drug offense was disposed of by a “guilty plea, finding of guilty, and credit for

time served.”3

       We must decide whether this 1986 plea satisfies the definition of

       2
        Mejia also submits an untitled state-court document with various court stamps on it.
The document is illegible and we will not guess at what it represents.
       3
         Mejia was arrested in January and the state court disposed of the case in July, but as
counsel stated at oral argument, we do not know how long Mejia was in custody.

                                                 3
“conviction.” We review an issue involving statutory interpretation de novo,

Ferguson v. U.S. Att’y Gen., 563 F.3d 1254, 1269 (11th Cir. 2009), cert. denied,

130 S.Ct. 1735 (2010), but we will defer to the agency’s interpretation “if it is

reasonable and does not contradict the clear intent of Congress.” Quinchia v. U.S.

Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). If the intent of Congress is

clear, it controls, but where a statute is silent or ambiguous, the question is whether

the agency’s interpretation is based on a permissible construction of the statute.

See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43.

      Section 1101(a)(48) defines a “conviction” 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.

8 U.S.C. § 1101(a)(48)(A). Thus, a “conviction” can be either (1) a formal

judgment of guilt, or (2) if adjudication of guilt was withheld, a sufficient finding

of guilt and the imposition of punishment or restraint on liberty. Although Mejia

argues that the second prong of § 1101(a)(48)(A) requires there to have been some

form of punishment imposed, this case is not one in which adjudication was

withheld. We will not, as counsel suggests, simply assume adjudication was

withheld because there was no formal adjudication of guilt. Instead, we conclude

                                           4
that because the state court did not expressly withhold adjudication in the 1986

case, only the first prong of § 1101(a)(48)(A) applies here.4 See Reiter v. Sonotone

Corp., 442 U.S. 330, 339 (1979) (“Canons of construction ordinarily suggest that

terms connected by a disjunctive be given separate meanings, unless the context

dictates otherwise . . . .”). The only question here, then, is whether Mejia’s guilty

plea resulted in a formal judgment of guilt.

                                               II.

       Before 1996, the immigration laws did not provide a statutory definition of

“conviction.” To provide consistency and uniformity, the Board of Immigration

Appeals (BIA) looked to whether a court had adjudicated the defendant guilty or

had entered a formal judgment of guilt. See Matter of Ozkok, 19 I. & N. Dec. 546

(BIA 1988). Congress then enacted IIRIRA, which added § 1101(a)(48) and the

definition of conviction. According to the Congressional Conference Committee

Report (the Report), § 1101(a)(48) was designed to “deliberately broaden[] the

scope of the definition of ‘conviction’ beyond that adopted by the Board of



       4
          By contrast, Mejia’s 1989 resisting-arrest charge, which was later vacated, appears in
the record as “conviction with community service.” In another state-court record, charges for
obstruction were disposed of by “conv-comm service.” This same state-court record lists the
1986 charges with a disposition of “credit time served.” Additionally, the state-court records of
the 1985 turnstile-jumping conviction show a disposition of “finding of guilt, withhold
adjudication with 25 hours community service and $25 court cost.” After reviewing these state
court records, we are convinced that the state court did not withhold adjudication on the 1986
charges.

                                                5
Immigration Appeals in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988).” H.R.

Rep. No. 104-828 (1996), 1996 WL 563320, at *224. As the Report further

explained,

      [t]his new provision . . . clarifies Congressional intent that even 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. In addition, this new definition clarifies that
      in cases where immigration consequences attach depending upon the
      length of a term of sentence, any court-ordered sentence is considered
      to be ‘actually imposed,’ including where the court has suspended the
      imposition of the sentence.”

Id.

      Importantly, the definition of conviction under § 1101(a)(48)(A) requires a

“formal judgment of guilt” instead of a formal adjudication. The Second, Third,

and Fifth Circuits have defined “formal judgment of guilt” by drawing an analogy

to Federal Rule of Criminal Procedure 32(k)(1). Singh v. Holder, 568 F.3d 525,

530 (5th Cir. 2009) (citing Puello v. Bureau of Citizenship and Immigration Servs.,

511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir.

2002)). According to Rule 32(k)(1), “[i]n the judgment of conviction, the court

must set forth the plea, the jury verdict or the court’s findings, the adjudication,

and the sentence.” Fed. R. Crim. P. 32(k)(1). Thus, to establish a conviction for

immigration purposes, a court must accept a guilty plea or jury verdict, make an

adjudication, and impose a sentence. We agree with our sister circuits that this

                                            6
approach makes sense and thus we adopt the same analogy.

       Here, Mejia entered a guilty plea, the court made a finding of guilt, and it

imposed a sentence of time served. The remaining questions before us, then, are

(1) whether a finding of guilt qualifies as an adjudication, and (2) whether time

served qualifies as a sentence under Rule 32(k)(1).

       Mejia argues that a mere finding of guilt cannot constitute an adjudication.

But we have more than a mere finding in this case. The word “adjudication”

means to resolve a dispute or decide a case.5 Black’s Law Dictionary 43 (9th Ed.

2009). Thus, to determine whether there has been an adjudication, we look to the

finality of the proceedings. See Pino v. Landon, 349 U.S. 901 (1955). For Mejia,

the evidence of the disposition is the state-court clerk’s certification showing a

“guilty plea, finding of guilt, time served.” The finding of guilt when coupled with

some form of sentence – time served – brings finality to the case and thus

establishes an adjudication. See Corey v. United States, 375 U.S. 169, 174 (1963)

(noting that “the sentence is the judgment”).

       Mejia cites Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001), to support his

argument that he was not convicted of the 1986 charges. In Griffiths, the defendant


       5
          We generally give words their ordinary meaning. See Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993) ((“Courts properly assume, absent
sufficient indication to the contrary, that Congress intends the words in its enactments to carry
their ordinary, contemporary, common meaning.”) (internal quotation marks omitted)).

                                                 7
had been convicted of a firearms offense and sentenced to a six-month suspended

sentence and one year of probation. 243 F.3d at 48. After he served his term of

probation, his conviction was vacated and the state filed lesser charges against him.

When Griffiths pleaded guilty to the new charges, the state court found him guilty

and placed the charges “on file,” but it did not impose any additional punishment.

Id. Griffiths challenged his subsequent deportation order on the ground that he had

not been “convicted.” Id. at 49. The First Circuit agreed. The court noted that

under Massachusetts law, the “guilty-filed” procedure permitted the state court to

suspend the adjudicative process. The First Circuit concluded that although there

was a finding of guilt, there was no formal judgment of guilt under § 1101(a)(48)

because a finding of guilt alone was insufficient. Id. at 52-53. The court

determined that the state court withheld adjudication and, under the second

provision of § 1101(a)(48), there was no conviction because the state records did

not show whether the state-court judge had imposed some form of punishment.

Id. at 54.

       Because Griffiths concerned the adjudication withheld provision, we find the

First Circuit’s reasoning inapposite. Nor do we believe it offers the support Mejia

needs. Griffiths analyzes the second provision, where adjudication was withheld.

But as we have explained, this analysis does not apply here because there is no



                                          8
indication that the state court withheld adjudication. Moreover, Griffiths did not

exclude the possibility that a guilty-filed disposition could qualify as a conviction

if the facts showed that the state court had imposed some punishment, even if that

punishment was a prior probationary term. Rather, the court remanded to the BIA

for further factfinding on the issue of punishment. 243 F.3d at 55.

      Mejia also argues that time served is not a sentence because, under Florida

law, time served is not a term of imprisonment. But whether a prior offense

qualifies as a conviction under § 1101(a)(48) is a question of federal, not state, law.

United States v. Maupin, 520 F.3d 1304, 1307 (11th Cir. 2008); see also Dickerson

v. New Banner Inst., Inc., 460 U.S. 103, 119 (1983) (“[I]n the absence of a plain

indication to the contrary . . . it is to be assumed when Congress enacts a statute

that it does not intend to make its application dependent on state law.” (citation and

quotation marks omitted)). And the purpose of enacting § 1101(a)(48)(A) was to

“creat[e] a uniform definition of conviction that is no longer dependent on the

vagaries of state law.” Resendiz-Alcarez v. U.S. Att’y Gen., 383 F.3d 1262, 1269

(11th Cir. 2004).

      In United States v. Anderson, 328 F.3d 1326 (11th Cir. 2003), this court held

that when a defendant pleaded nolo contendere and the court withheld

adjudication, a sentence of time served qualified as “punishment” under



                                           9
§ 1101(a)(48). Although the question arose in the context of a sentencing-

guideline issue, the court relied on the definition of conviction in § 1101(a)(48) to

explain its holding. Id. at 1328.

      Although Anderson addressed the second provision of § 1101(a)(48), we

believe Anderson’s reading of the statute is sound, and we conclude that it controls

the outcome of this case. Under federal law, time served qualifies as a sentence

under Rule 32(k)(1) and can establish a formal judgment of guilt under

§ 1101(a)(48). We again find support for this holding in the Supreme Court’s

pronouncement that “[f]inal judgment in a criminal case . . . means sentence. The

sentence is the judgment.” Corey, 375 U.S. at 174 (citation and quotation marks

omitted).

                                          III.

      In this case, the state court accepted Mejia’s plea, made a “finding of guilt,”

and imposed a sentence of time served. This satisfies § 1101(a)(48)’s definition of

a formal judgment of guilt. Accordingly, we conclude that the 1986 case resulted

in a conviction for immigration purposes. The district court properly denied the

motion for declaratory judgment.

      AFFIRMED.




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