Immigration – Petitioner ineligible from cancellation of removal because of prior convictions

Where the petitioner had two prior convictions for crimes involving moral turpitude, he was ineligible for cancellation of removal. Although the petitioner argued the 2009 larceny did not result in a “conviction” for immigration purposes, this argument was rejected.

Background

Vaughn Andre Gardner applied for cancellation of removal after he was placed in removal proceedings. An immigration judge, or IJ, determined petitioner was ineligible for cancellation of removal because he had two prior convictions for crimes involving moral turpitude. Petitioner argued that he was eligible because one of those cases — a 2009 larceny charge — did not result in a conviction. The IJ disagreed and denied petitioner’s application, and the Board of Immigration Appeals, or BIA, affirmed.

Analysis

Petitioner argues that the 2009 larceny did not result in a “conviction” for immigration purposes. Instead, the 2009 larceny charge resulted in what North Carolina calls a “Prayer for Judgment Continued,” or PJC, which is a type of deferred resolution not resulting in a formal conviction.

This court has no trouble concluding that petitioner’s 2009 PJC qualifies as a conviction. The court ordered that the PJC was to issue upon completion of community service. That requirement is punitive in nature rather than administrative. Although this court has not had occasion to consider whether a community service requirement qualifies as punishment, the BIA, Eighth Circuit and Fifth Circuit have, and have all agreed that community service qualifies as punishment for purposes of § 1101(a)(48)(A). This court agrees.

Petitioner argues that “[t]he requirement of an indeterminate, unenforceable, and unsupervised [term of] community service did not flow from his culpability but rather was a way for Petitioner to earn the PJC.” In petitioner’s view, he “was not placed on a probationary sentence nor did the judge retain jurisdiction over the matter while community service was performed.” Instead, petitioner claims he “completed the community service before entering his admission of guilt and having his final judgment indefinitely suspended.”

But those arguments lack any citation to authority and find no support in the record. In fact, the only record evidence is the single line in the document detailing the resolution of the 2009 charge, which notes that the PJC was to issue upon completion of community service. Importantly, at oral argument, Petitioner’s counsel conceded that when a defendant performs community service in order to “earn” a PJC, such community service is directed and controlled by the North Carolina court.

By conditioning the PJC on the completion of community service as required by the court, the court imposes a restraint upon the defendant’s liberty and imposes punishment. It makes no difference whether the required community service takes place before or after the PJC issues. What matters is that it is discretionary, is required by the court, and is neither an administrative nor compensatory order intended to “reimburse a state . . . regulatory body for expenses incurred.”

Petitioner argues that the community service here was not a punishment because it “had no relation to the offense, a larceny, nor to the victim of the crime, so [it] did not flow from the underlying conduct. But community service is surely a punitive sanction. It is discretionary and does not serve any administrative purpose. Instead, community service is “intended to discipline or deter and is proportionate to the underlying offense” — here, misdemeanor petty larceny.

Finally, petitioner argues that community service is not a punishment in this context because it is not the type of condition that North Carolina’s high courts would find to have converted the PJC to a final appealable order. This court disagrees. North Carolina courts recognize that conditions that go “beyond a requirement to obey the law” or a requirement to pay mandatory court costs “amount[] to punishment.” Community service goes beyond a requirement to simply follow the law.

But more importantly, whether the PJC was converted to a final judgment under North Carolina law is irrelevant to whether the PJC included a “punishment” rendering it a “conviction” for purposes of federal immigration law. This is so because § 1101(a)(48)(A) does not require a final judgment but instead accounts for deferred adjudications like PJCs.

Petition denied.

Gardner v. Blanche, Case No. 24-1553, April 14, 2026. 4th Cir. (Thacker), from Board of Immigration Appeals. Carnell T. Johnson for Petitioner. Rodolfo David Saenz  for Respondent. VLW 026-2-133. 11 pp.