Costs and Surcharges May Constitute Punishment Required for Criminal Conviction  Posted March 07, 2008
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The Board of Immigration Appeals (BIA) issued a decision on February 27, 2008 specifying that "the imposition of costs and surcharges in the criminal sentencing context constitutes a form of 'punishment' or 'penalty' for purposes of establishing that an alien has suffered a 'conviction'" in the immigration sense. As MurthyDotCom and MurthyBulletin readers will recall from our January 25, 2008 article, Criminal 'Convictions' with Possible Severe Immigration Consequences, the definition of conviction for immigration purposes has two requirements. The first requirement is either that a judge / jury finds the foreign national guilty, or the foreign national enters a guilty / no-contest plea, or the foreign national admits to facts sufficient for a finding of guilt. The second requirement, which also has to be met to result in a conviction for immigration purposes, is that the judge has ordered some form of punishment or restraint on liberty. This article summarizes the BIA decision that clarifies the effect of the imposition of costs and charges in criminal proceedings on a foreign national defendant.
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Criminal v. Civil Penalties
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In determining whether costs and surcharges constitute punishment as required for a conviction, the BIA considered the particular facts of the case, the relevant Florida statutes, and the federal immigration law. The BIA reviewed the criminal case that originated in Florida. In that case, the foreign national defendant entered a no-contest plea (or a plea of nolo contendere) to a charge of possession of a controlled substance. (Thus, the first element for a conviction was met by virtue of the no-contest plea.) The judge withheld adjudication of his guilt and ordered him to pay certain costs and surcharges, which were mandatory under the Florida statutes. The BIA opined that, because it had already been determined by a prior decision entered by the Supreme Court of Florida, the mandated costs and surcharges were "proportionate to the gravity of the offense," they are imposed as restitution, which constitutes a form of punishment. Failure to pay such monetary penalty may subject the defendant to incarceration. This is in contrast to civil monetary penalties which, if not paid, will not subject the defendant to jail time, but only to a judgment lien (i.e. order to pay). The imposition of civil costs and fines does not result in sufficient punishment for the purposes of conviction in the immigration context.
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Another way to distinguish between criminal and civil monetary penalties is to determine whether a judge is precluded from imposing costs on an indigent defendant. The BIA noted that "the fact that a defendant's ability to pay must be considered before enforcing collection of assessed costs does not mean that their imposition is not punishment." Criminal costs and surcharges may be imposed on a defendant regardless of his or her financial status because they constitute "penalty prescribed by law."
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Conclusion
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The February 27, 2008 BIA decision has clarified a fine line between criminal and civil costs and surcharges imposed by a judge in a criminal case. While regular civil court costs generally do not constitute sufficient punishment for the purposes of a "conviction" in the immigration context, imposition of criminal costs and surcharges can meet this requirement. Anyone who is subject to court costs and surcharges, in a criminal context, should consult a knowledgeable criminal defense and/or immigration attorney to receive proper advice on whether a particular sentence may adversely affect one's immigration status.