Jose Guzman Gonzalez v. Jefferson Sessions III , 894 F.3d 131 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1519
JOSE SANTOS GUZMAN GONZALEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: March 20, 2018 Decided: June 27, 2018
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Petition granted; order reversed and remanded by published opinion. Judge Wynn wrote
the opinion, in which Judge Floyd and Judge Harris joined.
ARGUED: Japheth Nthautha Matemu, MATEMU LAW OFFICE, PC, Raleigh, North
Carolina, for Petitioner. Dawn S. Conrad, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad 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, Circuit Judge:
Petitioner 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 costs.
The 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.
I.
Guzman 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
2
state district court, sitting in Wake County, North Carolina. 1 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.
Thirteen 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), 1182(a)(2)(A)(i)(II), 1101(48)(A).
The 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
1
The sole record of these state-court proceedings is a citation-disposition form
obtained from the Wake County Clerk of Superior Court in 2014.
3
criminal sentencing context satisfy the Act’s relevant definitions. Id. (citing In re
Cabrera, 24 I. & N. Dec. 459, 462 (B.I.A. 2008)).
Guzman 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 Guzman’s appeal. Guzman timely sought relief in
this Court.
II.
A.
Certain aliens are ineligible for admission to the United States. 8 U.S.C. § 1182.
For instance, when, as here, “[a]n alien [is] present in the United States without being
admitted or paroled,” that alien “is inadmissible.” Id. § 1182(a)(6)(A)(i). Accordingly,
the government may institute proceedings to remove such inadmissible aliens from the
United States. Id. § 1229a. However, an alien charged with removability may apply for
cancellation of removal. Id. § 1229b. The alien must satisfy certain criteria to be eligible
for cancellation, e.g., id. § 1229b(b)(1), such as the criterion at issue here—that the alien
does not have a prior “conviction” for a controlled substance violation, id.
§§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II). If the government believes the alien does not
satisfy all applicable cancellation criteria, it may move to “pretermit” the alien’s
application, thereby effectively requesting a determination that the alien is ineligible for
cancellation. See In re Castrejon-Colino, 26 I. & N. Dec. 667, 668 (B.I.A. 2015).
4
B.
The single issue presented for our review is whether the state-court disposition of
Guzman’s 2002 offense for misdemeanor possession satisfies the definition of
“conviction” as that term is used in the Act’s section governing cancellation of removal. 2
8 U.S.C. § 1229b(b)(1)(C). Because this presents a question of statutory interpretation,
we review the issue de novo. See Martinez v. Holder, 740 F.3d 902, 909 (4th Cir. 2014).
And because only one Board member issued the underlying opinion, the opinion is not
one in which the Board “exercis[ed] its authority to make a rule carrying the force of law,
and thus . . . is not entitled to Chevron deference.” Id. at 909–10. 3 Instead, we may
accord the underlying opinion “modest [Skidmore] deference,” depending on “the
thoroughness evident in [the Board’s] consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it
power to persuade.” Id. at 910 (quoting A.T. Massey Coal Co. v. Holland, 472 F.3d 148,
169 (4th Cir. 2006), and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
The Act provides, in relevant part:
2
Guzman also argues that because “a verdict of ‘prayer for judgment’ does not
constitute a conviction under North Carolina law,” his citation disposition cannot fall
within the Act’s ambit. Pet’r’s Br. 10. However, the Act, not North Carolina law,
governs the relevant definition of “conviction.” See, e.g., In re Eslamizar, 23 I. & N.
Dec. 684, 686–87 (B.I.A. 2004) (en banc). Accordingly, we reject Guzman’s argument
that North Carolina’s definition alone resolves this case.
3
When, as here, the Board issues its own opinion rather than merely adopting the
Immigration Judge’s underlying opinion, we review only the Board’s opinion. E.g.,
Martinez, 740 F.3d at 908.
5
The term “conviction” means, with respect to an alien, 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) (emphases added). The parties agree that Guzman did not
have a formal judgment entered against him and that he pleaded guilty to the
misdemeanor possession offense. Accordingly, only the second prong of the Act’s
definition of a “conviction” when adjudication of guilt has been withheld is at issue—i.e.,
whether the $100 in costs assessed attendant to Guzman’s guilty plea constitute a
“punishment” or “penalty” within the meaning of the Act. 4
4
Five days prior to oral argument, the government submitted a letter pursuant to
Federal Rule of Appellate Procedure 28(j) (“Citation of Supplemental Authorities”),
citing several long-established authorities and arguing, for the first time, that Guzman
failed to administratively exhaust his claim that court costs under North Carolina law do
not satisfy the relevant Act definitions. Assuming, without deciding, that the government
properly raised this argument, but see, e.g., United States v. Ashford, 718 F.3d 377, 381
(4th Cir. 2013) (“We do not countenance a litigant’s use of Rule 28(j) as a means to
advance new arguments couched as supplemental authorities.”), we conclude it fails
because Guzman adequately raised the issue below. In particular, Guzman argued to the
Board that “costs . . . do not convert a [prayer for judgment] into a judgment” because
costs do not “amount to punishment.” A.R. 14. The Board addressed this argument,
explicitly agreeing with the Immigration Judge’s determination “that the record of
conviction shows [Guzman] was ordered to pay $100 as a penalty for his conviction,”
therefore satisfying the Act’s “punishment [or] penalty” requirement. Id. at 4.
Accordingly, Guzman adequately exhausted his administrative remedies prior to
petitioning this Court.
6
The Act does not define the terms “punishment” or “penalty,” and this Court has
not yet addressed whether the imposition of “costs” under North Carolina law constitutes
a “punishment” or “penalty” for purposes of the Act. Conceding that this issue is one “of
first impression for the Fourth Circuit,” the government argues that the “costs” assessed
in Guzman’s case are analogous to “fine[s] or restitution,” which courts have held, at
least in the criminal sentencing context, “constitute[] a form of ‘punishment’ or
‘penalty’” under the Act. Resp’t’s Br. at 16–17. We disagree.
To resolve Guzman’s petition, we must address three issues: (1) the definitions of
“punishment” and “penalty,” as those terms are used in 8 U.S.C. § 1101(a)(48)(A); (2)
the import under North Carolina law of a verdict requiring payment of “costs” in
conjunction with a prayer for judgment continued; and, (3) in view of those substantive
definitions, whether the imposition of costs assessed attendant to a North Carolina
disposition of prayer for judgment continued constitutes a “punishment” or “penalty” for
purposes of the Act. We examine each issue in turn.
1.
Turning first to the Act’s definition of “punishment” and “penalty,” we analyze
these terms “start[ing] with the plain language.” Crespo v. Holder, 631 F.3d 130, 133
(4th Cir. 2011) (quoting U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377 F.3d 345, 350
(4th Cir. 2004)). In so doing, “we give the terms their ‘ordinary, contemporary, common
meaning, absent an indication Congress intended [them] to bear some different import.’”
Id. (quoting North Carolina ex rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th
Cir. 2008)). Applying this well-established interpretive approach, we conclude that a
7
monetary assessment amounts to a “punishment” or “penalty” for purposes of Section
1101(a)(48)(A) if it is principally intended to serve a punitive purpose—that is, if a judge
orders the monetary assessment to advance a punitive goal tethered to the defendant’s
degree of culpability in light of her specific actions.
Black’s Law Dictionary and Merriam-Webster define “penalty” and “punishment”
in similar terms, often using one term to help give meaning to the other. A punishment is
“[a] sanction—such as a fine, penalty, confinement, or loss of property, right, or
privilege—assessed against a person who has violated the law,” Punishment, Black’s
Law Dictionary (10th ed. 2014), or “a penalty inflicted by a court of justice on a
convicted offender,” Webster’s Third New International Dictionary 1843 (Philip
Babcock Gove et al. eds., 2002) [hereinafter Webster’s]. Similarly, a penalty is
“[p]unishment imposed on a wrongdoer, usu[ally] in the form of imprisonment or fine,”
Penalty, Black’s Law Dictionary (10th ed. 2014), or “the suffering in person, rights, or
property which is annexed by law or judicial decision to the commission of a crime or
public offense,” Webster’s, supra, at 1668. As the Ninth Circuit has recognized, these
largely coextensive definitions “require[] a ‘conviction’ [as defined in the Act] to have
some punitive aspect.” Retuta v. Holder, 591 F.3d 1181, 1188 (9th Cir. 2010) (emphasis
added); see also Webster’s, supra, at 1843 (defining punishment as a judicially imposed
sanction “aiming at either prevention, retribution, or reformation” (emphasis added)).
This punitive understanding of the meaning of “punishment” and “penalty” in
Section 1101(a)(48)(A) conforms to the construction of those terms in other statutory
provisions. For example, in construing the term “penalty” in a federal statute of
8
limitations, the Supreme Court appealed to longstanding precedent regarding the meaning
of the term and held that “a pecuniary sanction operates as a penalty only if it is sought
‘for the purpose of punishment, and to deter others from offending in like manner.’”
Kokesh v. S.E.C., 137 S. Ct. 1635, 1642 (2017) (quoting Huntington v. Attrill, 146 U.S.
657, 668 (1892)); see also Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 423 (1915)
(holding that the words “penalty or forfeiture” in federal statute “refer to something
imposed in a punitive way for an infraction of a public law” (emphasis added)). And
even when a statute delineates a monetary sanction that is not expressly “define[d] . . . in
terms as a punishment or penalty,” if the sanction is imposed as retribution to the
offender and to “operate[] as a warning” to similarly situated individuals, then the
sanction is “a punishment or penalty” due to its punitive “character.” See Helwig v.
United States, 188 U.S. 605, 610–11 (1903).
To properly advance these punitive goals of retribution and deterrence, a particular
punishment or penalty must account for the culpability flowing from the actor’s
underlying conduct. For instance, punitive damage awards generally must be
proportionate to the “reprehensibility of the defendant’s [specific] conduct.” See, e.g.,
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996); id. at 575 n.23 (“The flagrancy
of the misconduct is thought to be the primary consideration in determining the amount
of punitive damages.” (internal quotation marks omitted)); see also Restatement (Second)
of Torts § 908 (1979) (“Punitive damages are . . . awarded against a person to punish him
for his outrageous conduct and to deter him and others like him from similar conduct in
the future.”). So too must a criminal punishment be proportionate to the wrongfulness of
9
the crime. See, e.g., Solem v. Helm, 463 U.S. 277, 284 (1983) (“The principle that a
punishment should be proportionate to the crime is deeply rooted and frequently repeated
in common-law jurisprudence.”). And this Court and other courts have concluded that a
federal victim’s assistance fund assessment constitutes a “punishment” for purposes of
the Assimilative Crimes Act because, among other reasons, the assessment “varies in
severity with the nature of the crime committed.” See, e.g., United States v. King, 824
F.2d 313, 316 (4th Cir. 1987); United States v. Mayberry, 774 F.2d 1018, 1021 (10th Cir.
1985) (also noting that assessment was “penal in nature”).
Because a punishment or penalty must be proportionate to a defendant’s
wrongdoing, courts generally refuse to treat a monetary assessment as a punishment or
penalty when the assessment solely reflects the costs of compensating a private party or
the government for losses resulting from the wrongdoing. See Kokesh, 137 S. Ct. at 1642
(distinguishing “penalty” from judgments “compensating a victim for his loss”); Gabelli
v. S.E.C., 568 U.S. 442, 451–52 (2013) (stating that “penalties . . . go beyond
compensation, [and] are intended to punish . . . and label defendants wrongdoers”);
Johnson v. S.E.C., 87 F.3d 484, 488 (D.C. Cir. 1996) (“[W]e conclude that a ‘penalty,’ as
that term is used in [28 U.S.C.] § 2462, is a form of punishment imposed by the
government for unlawful or proscribed conduct, which goes beyond remedying the
damage caused to the harmed parties by the defendant’s action.”). For example, courts
have recognized that monetary interest imposed under the Internal Revenue Code “is not
a penalty but is intended only to compensate the Government for delay in payment of a
tax.” Springer v. Comm’r, 580 F.3d 1142, 1146 (10th Cir. 2009) (quoting Avon Prods.,
10
Inc. v. United States, 588 F.2d 342, 343 (2d Cir. 1978)). Likewise, courts have held that
costs imposed to reimburse a state professional regulatory body for expenses incurred in
holding a disciplinary hearing do not constitute a “penalty” for purposes of the
Bankruptcy Code’s discharge provision. See In re Schaffer, 515 F.3d 424, 427, 433 (5th
Cir. 2008); In re Taggart, 249 F.3d 987, 991–93 (9th Cir. 2001), superseded by statute,
Cal. Bus. & Prof. Code § 6086.10(e) (West 2004), as recognized in In re Findley, 593
F.3d 1048, 1052–53 (9th Cir. 2010). The distinction between compensatory relief and
penalties harkens back to the days of the divided bench in our judicial system:
“[r]emedies intended to punish culpable individuals, as opposed to those intended simply
to extract compensation or restore the status quo, were issued by courts of law, not courts
of equity.” Tull v. United States, 481 U.S. 412, 422 (1987).
And because a penalty or punishment must be proportionate to a defendant’s
wrongdoing, courts are more likely to treat a monetary assessment as a penalty or
punishment if the adjudicator is endowed with discretion to determine both whether to
impose the assessment and the amount of any assessment imposed. Compare Richmond
v. N.H. Supreme Court Comm. On Prof’l Conduct, 542 F.3d 913, 919 (1st Cir. 2008)
(concluding that “costs” assessed by state in attorney disciplinary proceeding was a
“penalty” for purposes of the Bankruptcy Act’s discharge provision because the costs
were “quite discretionary,” rather than routine), with Taggart, 249 F.3d at 991–94
(concluding that costs imposed in attorney disciplinary proceeding were not a “penalty”
for purposes of discharge provision because they were “mandatory” rather than
“discretionary”).
11
Section 1101(a)(48)(A) nowhere indicates that Congress intended to establish a
definition of penalty or punishment contrary to these long-standing and well-established
understandings of the terms. On the contrary, Section 1101(a)(48)(A)(ii) states that a
“punishment” or “penalty” constitutes a component of a “conviction” only if the
punishment or penalty is ordered by a “judge.” By contrast, in other provisions in the
very same subsection, Congress elected to refer to orders of “a court.” 8 U.S.C.
§§ 1101(a)(48)(B) (“[T]he period of incarceration or confinement ordered by a court of
law.”), 1101(a)(48)(A) (“[A] formal judgment of guilt of the alien entered by a court.”);
cf. also § 1101(a)(48)(A)(i) (specifying “a judge or jury” as satisfactory actors (emphasis
added)). By juxtaposing “judge” with “court,” Congress evinced an intent that
“penalties” and “punishments” in Section 1101(a)(48)(A)(ii) constitute discretionary acts
of judgment as opposed to the broader set of ministerial or administrative decrees or
assessments a court may impose. Cf., e.g., Decatur v. Paulding, 39 U.S. 599, 606 (1840)
(Baldwin, J., concurring) (distinguishing a “judicial act,” characterized as an “exercise
[of] discretion,” from a “mere ministerial act required by law”); In re Soares, 107 F.3d
969, 974 (1st Cir. 1997) (explaining that, for purposes of the Bankruptcy Code’s
automatic stay provision, “when an official’s duty is delineated by, say, a law or a
judicial decree with such crystalline clarity that nothing is left to the exercise of the
discretion or judgment, the resultant act is ministerial . . . . Such acts can usefully be
visualized as the antithesis of judicial acts, inasmuch as the essence of a judicial act is the
exercise of discretion or judgment”).
12
Likewise, other references to “penalties” in the Act correspond to the common
punitive understanding of the term, providing an adjudicator with discretion to impose a
sanction proportionate to the defendant’s wrongdoing. See, e.g., 8 U.S.C. §§ 1306(a)
(section entitled “Penalties” for registration-related offenses, providing that alien “shall,
upon conviction . . . , be fined not to exceed $1,000 or be imprisoned not more than six
months, or both”), 1253(a) (providing that alien “shall be fined under Title 18, or
imprisoned not more than four years (or 10 years if the alien is a member of any of the
classes described in paragraph (1)(E), (2), (3), or (4) of section 1227(a) of this title), or
both”); see also § 1324d(a) (providing that alien “shall pay a civil penalty of not more
than $500 to the Commissioner for each day the alien is in violation of this section”).
That punishment and penalty refer to a discretionary sanction imposed for a
punitive purpose is further borne out in the relevant caselaw. For instance, this Court has
held that probationary conditions tailored by a judge to the underlying offense conduct
constitute a penalty or punishment. See Jaquez v. Sessions, 859 F.3d 258, 262 (4th Cir.
2017) (holding that state judge ordered “some form of punishment, penalty, or restraint
on . . . alien’s liberty” when, given the offender’s plea of guilty to cocaine possession,
state judge “placed [offender] on probation for one year and mandated numerous
conditions, including good behavior, full-time employment, and abstention from alcohol
and drugs” (quoting 8 U.S.C. § 1101(a)(48)(A)(ii))); Dung Phan v. Holder, 667 F.3d 448,
452 (4th Cir. 2012) (drug-specific “conditions of probation, backed by the specter of a
suspended prison sentence, are most certainly a form of punishment or penalty”). Our
sister circuits similarly have focused on whether a monetary assessment or other sanction
13
was tailored to a defendant’s culpability and imposed at the discretion of a judge in
determining whether the assessment or sanction amounted to a penalty or punishment.
See, e.g., Moosa v. I.N.S., 171 F.3d 994, 1002, 1005–06 (5th Cir. 1999) (explaining that
petitioner’s “deferred adjudication” in Texas was a “conviction” under the Act because
such adjudications grant judge discretion to “place the defendant on community
supervision” or “impose a fine applicable to the offense,” and judge exercised such
discretion in imposing various conditions attendant to alien’s deferred adjudication);
Griffiths v. I.N.S., 243 F.3d 45, 54–55 (1st Cir. 2001) (explaining that it could be
“possible” to find that state judge effectively imposed a “time-served” sentence because
judge determined that a “past punishment” for the underlying offense conduct was
sufficient “punishment for the present charge”). The government does not point to—nor
have we found—a case holding that a petitioner’s guilty plea and subsequent payment of
a mandatory assessment untethered from the petitioner’s degree of culpability satisfies
the Act’s “punishment” or “penalty” requirement.
In sum, we conclude that Section 1101(a)(48)(A) employs the terms “punishment”
and “penalty” in their plain and ordinary sense. This requires a judge to order a punitive
sanction—i.e., one that is intended to discipline or deter and is proportionate to the
underlying offense conduct. This definition accords with dictionary definitions, common
understanding, the Act’s statutory context, and relevant caselaw.
2.
With this definition of punishment or penalty in place, we next look to North
Carolina law to determine the substantive character of the monetary assessment imposed
14
in this case. See Cabrera, 24 I. & N. Dec. at 460 (“[W]e conclude that a uniform Federal
definition should govern in determining whether the assessment of costs and surcharges
constitutes a ‘penalty’ or ‘punishment,’ irrespective of how the State might characterize
them.” (emphasis added)). In assessing the state sanction at issue, it is not the state-law
“label” for the monetary assessment that guides our analysis, but rather the substance of
the assessment that dictates whether it falls under the Act’s definition of penalty or
punishment. See, e.g., Eslamizar, 23 I. & N. Dec. at 687–88 (concluding Oregon’s “use
[of] the label ‘criminal’ to describe” the relevant state proceedings must yield to the
substance of the actual state-law process); Griffiths, 243 F.3d at 53 (“[T]he B[oard]
assessed whether the guilty-filed disposition under Massachusetts law fell within the
category demarcated by the [Act’s] second [conviction] prong.”).
In North Carolina, there are three specific types of post-verdict monetary
payments that might have been applicable in the instant case: “costs,” “restitution,” and
“fines.” “Costs . . . are entirely creatures of legislation, and without this they do not
exist.” City of Charlotte v. McNeely, 190 S.E.2d 179, 185 (N.C. 1972) (quoting Clerk’s
Office v. Comm’rs of Carteret Cty., 27 S.E. 1003, 1003 (N.C. 1897)). “[I]t follows a
fortiori that ‘[c]ourts . . . have no power to adjudge costs against anyone on mere
equitable or moral grounds.’” Id. (alterations in original) (quoting 20 C.J.S. Costs §§ 1, 2
(1940)). Instead, costs are tied to the “[r]evenues and [e]xpenses of the Judicial
Department” incurred in adjudicating a defendant. N.C. Gen. Stat. ch. 7A, subch. VI; see
id. § 7A-2(6). For example, the statutory costs imposed at the superior court level
include $15 for use of “pretrial release services,” $30 for “the use of the courtroom and
15
related judicial facilities,” and $154.50 “[f]or support of the General Court of Justice.”
Id. §§ 7A-304(a)(2), (4), (5). Additionally, a judge need not be the court official to assess
them: even if a case “never reache[s] the trial calendar and [is one] in which the judge [i]s
not involved in its disposition, the clerk, through his deputy or assistant, [may be] the
proper official to tax or assess costs.” Thigpen v. Piver, 246 S.E.2d 67, 70 (N.C. Ct. App.
1978).
By contrast, under North Carolina law “restitution” serves to compensate an
aggrieved party. See N.C. Gen. Stat. § 15A-1340.35 to .36; Shore v. Edmisten, 227
S.E.2d 553, 559 (N.C. 1976). To that end, in determining whether, and in what amount,
to award restitution, a judge must make findings regarding the amount of financial harm
the defendant’s unlawful actions caused the aggrieved party. See, e.g., Shore, 227 S.E.2d
at 559; State v. Killian, 245 S.E.2d 812, 815 (N.C. Ct. App. 1978) (“[T]he [restitution]
sum ordered or recommended must be reasonably related to the damages incurred.”).
Similarly, North Carolina defines “fines” as “pecuniary punishment exacted by the state
and imposed in the discretion of the trial court for the purpose of punishing the
defendant.” Shore, 227 S.E.2d at 559. Again, the imposition of a fine requires a judge to
determine, based on the facts and circumstances of the offense, the appropriate amount of
monetary sanction necessary to punish the defendant and deter similar misconduct in the
future.
3.
Having determined the meaning of penalty and punishment in Section
1101(a)(48)(A)(ii) and the nature of “costs” under North Carolina law, we now turn to
16
whether the costs imposed in Guzman’s case amount to a penalty or punishment. We
conclude that they do not.
As explained above, under North Carolina law, “costs” are not punitive in nature.
Costs cannot be imposed “on mere equitable or moral grounds,” McNeely, 190 S.E.2d at
185—i.e., as a discretionary judicial act—but instead are imposed as a ministerial act,
pursuant to statute. Additionally, the costs are designed to compensate the North
Carolina justice system for the cost of adjudication. See N.C. Gen. Stat. § 7A-304
(imposing costs for various court or law-enforcement services and facilities). In
providing this compensation, controlled substance violations do not trigger any unique
North Carolina criminal costs. See N.C. Gen. Stat. §§ 7A-304, 7A-320. And, unlike the
judicial discretion inherent in determining an appropriate fine amount, costs are
mandatory, see N.C. Gen. Stat. § 7A-304, and therefore may be assessed without any
judicial input or action, see Thigpen, 246 S.E.2d at 70. Indeed, the record is devoid of
any evidence that the costs assessed against Guzman were imposed by a judge, rather
than a clerk, as the Act requires.
Furthermore, costs are particularly lacking in punitive character when, as in
Guzman’s case, they are assessed attendant to North Carolina’s unique disposition
method of a prayer for judgment continued. “When the prayer for judgment is continued
there is no judgment—only a motion or prayer by the prosecuting officer for judgment.”
State v. Griffin, 100 S.E.2d 49, 51 (N.C. 1957). Absent a final judgment, there can be no
sentence. See Barbour v. Scheidt, 97 S.E.2d 855, 857 (N.C. 1957) (explaining that a
verdict of prayer for judgment “is a mere suspending of active proceedings in the case,”
17
therefore without “an immediate sentence”); State v. Crook, 20 S.E. 513, 515 (N.C.
1894); State v. Brown, 430 S.E.2d 433, 434 (N.C. Ct. App. 1993). To be sure, “when the
court enters an order continuing the prayer for judgment and at the same time imposes
conditions amounting to punishment (fine or imprisonment) the order is in the nature of a
final judgment,” with an attendant sentence, “from which the defendant may appeal.”
See Griffin, 100 S.E.2d at 51 (emphasis added). However, a “[p]rayer for judgment
continued upon payment of costs, without more, does not constitute the entry of
judgment,” N.C. Gen. Stat. § 15A-101(4a), and therefore “a requirement to pay the costs
of court” does not constitute a sentencing “[c]ondition[] . . . ‘amounting to punishment.’”
State v. Popp, 676 S.E.2d 613, 614 (N.C. Ct. App. 2009) (emphasis added) (quoting
Brown, 430 S.E.2d at 434). In other words, an assessment of costs attendant to a verdict
of prayer for judgment continued in no way alters the fact that entry of judgment is
withheld “unconditionally,” i.e., with “no conditions . . . imposed” upon the pleading
party. See State v. Pledger, 127 S.E.2d 337, 340 (N.C. 1962).
The Board nonetheless found that Guzman’s payment of costs satisfied the Act’s
definition of penalty or punishment because it conformed to the Board’s prior statement
in Cabrera that the “imposition of costs and surcharges in the criminal sentencing context
constitutes a form of ‘punishment’ or ‘penalty’” within the meaning of the Act. A.R. 2
(citing Cabrera, 24 I. & N. Dec. at 462); see also id. at 41 n.1 (same). Cabrera is
meaningfully distinguishable from Guzman’s case, however. To begin, Cabrera dealt
with whether “costs and surcharges” imposed under Florida law pursuant to a plea of
nolo contendere constituted a penalty or punishment for purposes of the Act. 24 I. & N.
18
Dec. at 459–60. Accordingly, Cabrera did not address whether costs assessed pursuant
to North Carolina law constitute a penalty or punishment—the dispositive issue here.
The difference in governing law is significant. Unlike the North Carolina costs taxed
against Guzman, all of which were mandatory, some of the Florida costs and surcharges
assessed against the defendant in Cabrera were not mandatory, but imposed as a matter
of judicial discretion. Id. at 460. Therefore, whereas North Carolina costs are not
punitive in character, the discretionary costs and surcharges at issue in Cabrera were
punitive in character. Because courts must look to the substance of an assessment or
sanction in determining whether it constitutes a penalty or punishment, see Eslamizar, 23
I. & N. Dec. at 687–88, and because the Florida costs at issue in Cabrera were
substantively different than the North Carolina costs at issue here, Cabrera does not
control this case.
III.
In sum, we conclude that the $100 in costs assessed attendant to Guzman’s guilty
plea and the North Carolina state court’s entry of a verdict of prayer for judgment
continued do not constitute a “punishment” or “penalty” within 8 U.S.C.
§ 1101(a)(48)(A)’s definition of “conviction.” We therefore grant Guzman’s petition,
reverse the Board’s Order, and remand the case to the Board for further proceedings
consistent with this opinion.
PETITION GRANTED; REVERSED AND REMANDED
19