Before: Harry Pregerson, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.
Order; Concurrence by Judge Ikuta; Dissent by Judge Reinhardt
The panel has voted to deny Petitioner's Petition for Panel Rehearing En Banc. Judges Callahan and Ikuta have voted to deny the en banc petition. Judge Pregerson has voted to grant the en banc petition.
A judge of this court called for this case to be reheard en banc. A vote was taken, and a majority of the active judges of the court did not vote for a rehearing en banc. Fed. R. App. 35(f).
The petition for rehearing en banc is therefore DENIED.
IKUTA, Circuit Judge, with whom O'SCANNLAIN, CALLAHAN, and BEA, Circuit Judges, join, concurring in the denial of rehearing en banc:
The dissent from the denial of rehearing en banc neglects a salient point: Every circuit that has given a reasoned opinion on the interpretation of "conviction" in 8 U.S.C. § 1101(a)(48)(A) has reached the same conclusion as the panel does here, namely, that "[t]he term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court," regardless whether appeals have been exhausted or waived. 8 U.S.C. § 1101(a)(48)(A); see Waugh v. Holder, 642 F.3d 1279, 1284 (10th Cir. 2011); Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331-32 (2d Cir. 2007); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per curiam); Moosa v. INS, 171 F.3d 994, 1009 (5th Cir. 1999); see also Griffiths v. INS, 243 F.3d 45, 50-51 (1st Cir. 2001).
Most recently, the Tenth Circuit explained in no uncertain terms that Congress defined "conviction" in § 1101(a)(48)(A) "specifically to supplant a prior BIA interpretation that had required deportation to wait until direct appellate review (though never collateral review) of the conviction was exhausted or waived." Waugh, 642 F.3d at 1284 (quoting United States v. Adame-Orozco, 607 F.3d 647, 653 (10th Cir.), cert. denied, 131 S. Ct. 368 (2010)) (internal quotation marks omitted). "From this," the Tenth Circuit concluded, "it follows that an alien is lawfully deportable as soon as a formal judgment of guilt is entered by a trial court." Id. (quoting Adame-Orozco, 607 F.3d at 653) (internal quotation marks omitted); see also United States v. Saenz-Gomez, 472 F.3d 791, 794 (10th Cir. 2007) (rejecting the argument that Congress intended the definition of "conviction" in § 1101(a)(48)(A) to require exhaustion or waiver of appeals, and instead relying on the literal language to hold that the filing of a written judgment against the petitioner constituted a "conviction" for purposes of the statute).
Other circuits have reached similar conclusions. In Puello, the Second Circuit stated: "IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute." 511 F.3d at 332. This conclusion is directly on point and identical to the panel's conclusion here. Two subsequent unpublished opinions have reiterated this conclusion,*fn1 and no Second Circuit opinion has disagreed.
In Montenegro, the Seventh Circuit stated:
Before the enactment of IIRIRA, the Supreme Court required that a deportation proceeding be based on a conviction that had sufficient 'finality,' which we interpreted to mean that the alien no longer had any direct appeal pending. IIRIRA, however, treats an alien as 'convicted' once a court enters a formal judgment of guilt. IIRIRA eliminated the finality requirement for a conviction . . . . Under ...