A-F
- Judgment of State court, after finding of guilt, that proceedings be suspended and probation granted upon condition that defendant serve one year in the county jail constitutes a “conviction” within the meaning of section 241(a)(11) of the 1952 act.
- Finding of deportability under section 241(a)(11) of the 1952 act based upon conviction of State narcotics offense is not affected by a technical “expungement” or erasure of conviction record, as authorized by some State statutes, upon fulfillment of conditions of probation, such as section 1203.4 of the California Penal Code or section 1772 of the Welfare and Institutions Code. (Overrules Matter of D——, 7 I. & N. Dec. 670.)
BEFORE THE BOARD
(September 1, 1959)
Discussion: On September 14, 1956, we dismissed an appeal from a decision of a special inquiry officer directing the respondent‘s deportation. Thereafter, a suit was instituted for judicial review of the order of deportation which resulted in decisions adverse to the respondent in the United States District Court for the Southern District of California (Central Division) and in the United States Court of Appeals for the Ninth Circuit (Arrellano-Flores v. Hoy, 262 F.2d 667 (1958)). Counsel then filed a petition for certiorari in the Supreme Court of the United States which is now pending.* On May 6, 1959, he filed a motion addressed to this Board seeking reconsideration of our decision of September 14, 1956. In our order of June 24, 1959, we denied this motion and affirmed our previous order. On July 14, 1959, the Service requested that the case be
The respondent is a 55-year-old married male, native and citizen of Mexico, who last entered the United States about June 13, 1954, as a returning resident. He has resided in the United States since 1925 when he was admitted for permanent residence. On March 9, 1956, a judge of the Superior Court of California found the respondent guilty of a violation of
The respondent‘s counsel stated in his motion of May 6, 1959, that it was predicated on Matter of D——, 7 I. & N. Dec. 670, formerly Int. Dec. No. 916, decided March 6, 1958. His position was, in effect, that Matter of D—— required termination of this deportation proceeding, and he also contended that there had been no final judgment of conviction in the respondent‘s case. In our decision of June 24, 1959, we explained why the facts in Matter of D——, supra, were not analogous to those relating to the respondent, and we affirmed our previous order in which we had held this respondent deportable. The sole contention raised in the Service motion of July 14, 1959, is that there is a conflict between the decision in the respondent‘s case and the decision in Matter of D——, supra. While not specifically stated in the motion of July 14, 1959, it is apparent that the Service agrees with our decision that this respondent is deportable and agrees with the statements which we made in our order of June 24, 1959, that there was a final judgment of conviction in the respondent‘s case. The motion contains the statement that it is the view of the Service that Matter of D——, supra, erroneously states the law, and the Service obviously urges the overruling of that decision.
Matter of D——, supra, involved an alien who was approximately 17 years old at the time of his conviction, and he was treated as a youthful offender. About one year after the conviction, and pursuant to
Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. * * * provided, that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.
The proposition urged by the Service in its motion of July 14, 1959, is that an alien convicted of a crime which rendered him deportable continues to be deportable on the basis of that conviction even after the court has set aside the conviction under
Matter of P——, 5 I. & N. Dec. 392 (1953), involved the question of whether there had been a conviction for immigration purposes under the following circumstances. The alien, in a Massachusetts criminal proceeding, had been sentenced to imprisonment for one year and the sentence was suspended. After the expiration of one year the sentence was revoked and the case was placed “on file.” We held that there was a conviction rendering him deportable. The lower courts agreed that this alien was deportable but the Supreme Court reversed, stating that it was unable to say that the conviction
In a case where the conviction is expunged under
In re Ringnalda, 48 F. Supp. 975 (S.D. Cal., 1943), related to the question of whether an alien was qualified for naturalization, and the particular point discussed was the effect of the expungement of a conviction under
It might be assumed from the motion of the Service that Matter of D——, supra, formulated some new policy of terminating deportation proceedings where the record of conviction had been expunged. Actually, that is not the case. On the contrary, it has been the established and accepted view of the Service and of this Board for many years that in cases where a court has expunged the record of an alien‘s conviction, the conviction cannot thereafter serve as the basis for deporting the alien or excluding him. In its request of July 14, 1959, the Service urges only that Matter of D——, supra, be overruled. However, in reality, it is seeking to overthrow the long-standing practice we have mentioned without even commenting on its existence. The cases next cited confirm the existence of this rule.
In Matter of G——, 1 I. & N. Dec. 96, a decision approved by the Attorney General on January 14, 1942, there was involved article 780 of the Texas Code of Criminal Procedure which permits certain defendants to move for a new trial and dismissal of the case after the expiration of time assessed as punishment by the jury.
Article 780 of the Texas Code of Criminal Procedure was also pertinent to the decision in Matter of L—— R——, 7 I. & N. Dec. 318. In that case, sentence was suspended on recommendation of the jury. On February 18, 1957, the Attorney General ordered termination of the deportation proceeding and held that the conviction lacked finality. There, the period of punishment assessed had not expired and the conviction had not been expunged when the case was considered by the Attorney General, but the decision turned on the specific language of article 778 of the Texas law, relating to suspended sentences, which is to the effect that neither a verdict of conviction nor the judgment entered thereon becomes final unless there has been a final conviction for another felony during the period of suspension of the sentence. Similar language is not contained in the California statute under discussion. However, if the conviction lacked finality under the circumstances present in Matter of L—— R——, supra, the Service can hardly be correct in its view that there was a final conviction in Matter of D——, supra, since in that case the conviction had already been expunged at the time the case was considered.
In Matter of O—— T——, 4 I. & N. Dec. 265, which was a decision by the Central Office of the Service in 1951, it was stated at page 266, “The Service and the Board of Immigration Appeals have held in numerous cases that the proceedings under section 1203.4 [of the California Penal Code] expunge the record of conviction and that thereafter it may not serve as the basis for an order of deportation” (emphasis supplied). The cases cited in that decision show that this had been the rule concerning section 1203.4 since at least 1943, and the matter was so well settled that the only reported cases are those dealing with possible exceptions to the rule. In addition to Matter of O—— T——, supra, the existence of the rule is illustrated by Matter of E—— V——, 5 I. & N. Dec. 194 (1953); Matter of H——, 6 I. & N. Dec. 619 (1955); and Matter of S—— R——, 7 I. & N. Dec. 495 (1957), in all of which
In Matter of D——, supra, which the Service says is in conflict with the decision in the respondent‘s case, the special inquiry officer, in terminating the deportation proceeding, also referred to the well-settled rule mentioned above and stated that
When the Service urged, in Matter of D——, supra, that the special inquiry officer had erred in terminating the deportation proceeding, this was based on the fact that the alien was charged with being deportable under
On page 2 of its motion, the Service quoted a statement from Arrellano-Flores v. Hoy, supra, at page 668, which is to the effect that the court could not ignore what transpired in the criminal proceedings but that possibly Congress intended to do its own defining (of “convicted“) rather than leaving the matter of what constitutes a conviction for determination under the statute of the particular state. Actually, the word “convicted” is not one of the terms which was defined in
The opinion of the Court of Appeals in this respondent‘s case shows that the statement quoted by the Service related to a contention of the respondent based on a decision of the Seventh Circuit that one Freislinger had not been convicted under Illinois law because a final judgment of conviction had not been entered. In holding that this respondent had been “convicted,” the Court of Appeals did not base its decision upon the proposition that the provisions of the California statute or what transpired in the criminal proceedings should be disregarded. On the contrary, in the next paragraph following the one quoted by the Service, the Court of Appeals stated that California would consider that on this record there was a conviction. Parenthetically, we observe that the court had also stated at page 667 of the opinion that under California law such a sentence as was prescribed with respect to this respondent does not constitute a final judgment from which an appeal may be taken, citing In re Marquez, 45 P.2d 342. That case was decided in 1935. However,
With reference to the above-mentioned quotation by the Service from the opinion of the Court of Appeals, it is followed by this statement in the motion of July 14, 1959: “It is the Service view that this statement correctly reflects the Congressional intent, and that a conviction has occurred within the meaning of the immigration laws, notwithstanding subsequent legal process under the California statutes whereby this record of conviction ceases to exist for some purposes.” On page 3 of the motion it is stated that, “in asserting that an alien is properly held not deportable where the conviction has been expunged, the Board has asserted a legal principle contrary to that set forth in the Ninth Circuit in the instant case.” We consider it appropriate to comment on two matters raised by these statements of the Service.
In the first place, we understand from the two statements mentioned above that it is the view of the Service that Arrellano-Flores v. Hoy, supra, holds that this respondent will continue to remain deportable even if his conviction should hereafter be expunged under
The Court of Appeals stated in its opinion (p. 667) that the principal issue was whether the alien had been “convicted“; that the judgment of the State court was that the proceedings be suspended and that probation be granted upon the condition that the
Our second comment concerning the two statements of the Service mentioned above is with respect to that part which is to the effect that, when a conviction has been expunged under
The Service also stated that this Board has recognized that the expunging of the record of conviction in California does not completely obliterate the fact that the unlawful acts occurred, citing Matter of H——, 6 I. & N. Dec. 619; Matter of S—— R——, 7 I. & N. Dec. 495; and In re Paoli, 49 F. Supp. 128 (N.D. Cal., 1943). The statement itself is correct and we agree that we have said this.
The statement mentioned in the preceding paragraph appears to have been first discussed in Matter of O—— T——, 4 I. & N. Dec. 265 (1951). There an alien was convicted of petty theft in 1940 and in 1949 deportation proceedings were instituted on the basis of this conviction. Thereafter, the conviction was expunged under
Although we said in Matter of H——, supra, and Matter of S—— R——, supra, that the expunging of the record of conviction does not completely obliterate the fact that the unlawful acts occurred, it is significant that each case clearly shows that no change was being made in the rule which had been in effect since at least 1943 that a deportation charge is not supported by a record of conviction which has been expunged. Matter of H——, supra, even went a step beyond this. There the alien had been convicted of two offenses involving moral turpitude during the preceding five years and the records of conviction had been expunged under
We do not consider that In re Paoli, supra, is of any value in supporting the present position of the Service. That case involved an applicant for naturalization. The court held that an expunged conviction could be considered on the question of whether the applicant had established good moral character but a principal reason for the conclusion was that the court, in naturalization cases, could find lack of good moral character merely on the basis of unlawful acts com
On pages 2 and 3 of its motion, the Service refers to the fact that an offense which has been expunged may be pleaded and proved during the prosecution of a second offense and, as we have indicated above, this is a specific provision of
The Service also referred to our interpretation of a Federal statute “in which the Congress saw fit to state that an alien who had committed the particular crime or crimes, and as to whom the judicial process has acted with sufficient finality to adjudicate the issue that he was in fact guilty of that crime, was not a proper person to continue to reside in this country.” The statutory provision on which this deportation is predicated is
We turn now to the contention of the Service that there is a conflict between our decision concerning this respondent and the decision in Matter of D——, supra. Our position is (1) that an alien may be
A situation similar to the foregoing is present in every deportation under
As we have indicated above, our position that an alien cannot be deported after the conviction has been expunged is not something
In disagreeing with the proposition that an alien‘s deportability may depend upon whether he succeeds in having his conviction expunged before deportation takes place, the Service speaks of the “procedural requirements” of the California statute coming into play as though every defendant who has completed his probation is entitled to have the conviction expunged. It is clear from
The present respondent was on April 6, 1956, placed on probation for five years. We do not know whether he has thus far fulfilled the conditions of his probation or whether he will continue to do so until the expiration of five years on April 6, 1961. For that reason, we said in our order of June 24, 1959, that
For the reasons stated above, we hold that there is no conflict between the rule which has been in effect since 1943 concerning
Order: It is ordered that our orders of September 14, 1956, and June 24, 1959, be affirmed.
It is further ordered that this case be referred to the Attorney General for review under
BEFORE THE ATTORNEY GENERAL
(October 12, 1959)
The Board of Immigration Appeals, at the request of the Commissioner of Immigration and Naturalization, has referred to me for review, as provided by
The special inquiry officer directed the respondent‘s deportation on the ground that he was an alien who had been convicted of a narcotic offense.
* * * who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs, or who has been convicted of a violation of, or a conspiracy to violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of (specified narcotic drugs) * * *.
On November 14, 1955, an accusation was filed against respondent in a Superior Court of the State of California charging him with having unlawfully sold, furnished, and given away, flowering tops and leaves of Indian hemp (cannabis sativa) (marihuana) in violation of
Proceedings suspended, Probation granted for five years, condition, one year County Jail; residence and employment to be approved by Probation Officer; no narcotics; stay away from persons and places where narcotics are used; obey all laws and rules of Probation Department.1
The respondent has served one year in the county jail; his term of probation will not expire until April 6, 1961. The Board of Immigration Appeals dismissed respondent‘s appeal from the order of deportation without opinion.
Respondent thereupon instituted an action in the United States District Court for the Southern District of California challenging the validity of the deportation order. The district court upheld the order. The judgment of the district court was affirmed by the Court of Appeals for the Ninth Circuit (Arrellano-Flores v. Hoy, 262 F.2d 667 (1958)). The Court of Appeals stated that the respondent‘s principal contention was that he had not been “convicted” within the meaning of
While one cannot close one‘s eyes to the state‘s statutes and what transpired in the state‘s proceedings, we are inclined to the belief that perhaps here Congress intended to do its own defining rather than leave the matter to the variable state statutes. Credence for this view can be found in the fact the present statute reads “convicted” while its predecessor, 46 Stat. 1171 (Chap. 224), read “convicted and sentenced.”2 It would appear that federal
courts have generally taken the view that a plea of guilty or a finding of guilty, which is in repose and remains undisturbed, amounts to a conviction. See Kercheval v. United States, 274 U.S. 220. But if our question is whether California would consider on this record there was a conviction, then it is clear that California has answered in the affirmative. In re Morehead, 107 Cal. App. 2d 346, 237 P.2d 335; People v. Christman, 41 Cal. App. 2d 158, 106 P.2d 32.3
The respondent thereupon filed a petition in the Supreme Court for a writ of certiorari. That petition is now pending.* In May 1959, the Solicitor advised the Court that after the petition had been filed, “it was discovered that the Board of Immigration Appeals had rendered a decision (Matter of D——, 7 I. & N. Dec. 670 (March 6, 1958)), subsequent to the decision in this case, which may be inconsistent therewith since it expressed the view that a person who is ‘released from all penalties and disabilities’ pursuant to
On June 24, 1959, the Board denied respondent‘s motion for reconsideration. The Board held that its decision in Matter of D——, supra, did not require a different determination in respondent‘s case, stating that while the cases were similar in both involved like statutes, namely
* * * we are convinced that there is no statutory authorization for complying with counsel‘s request that the deportation proceeding be terminated in the respondent‘s case on the basis of the possibility that at some future date he might have his narcotic conviction set aside. The situation is different when a record of conviction has already been expunged in California because, in such a case, there is no conviction whatever to support an order of deportation. (Emphasis by the Board.)
Referring to respondent‘s contention that the state court conviction lacked finality because the imposition of sentence had been suspended, the Board said:
* * * The opinion of the Court of Appeals for the Ninth Circuit shows that it was fully aware of the judgment of the state court inasmuch as there is a recital of the fact that the state court had ordered that the proceedings be suspended and that probation be granted upon the condition that the respondent serve one year. It was this exact question which was considered by the United States Court of Appeals and it concluded that the respondent had been “convicted” within the meaning of
8 U.S.C. 1251(a)(11) . * * *
On July 14, 1959, the Commissioner of Immigration and Naturalization requested the Board to refer the case to the Attorney General for review. The Commissioner, stating that “administrative reconsideration” had been sought so that the Board might have “an opportunity to consider an apparent conflict in its decisions, and to clarify the Attorney General‘s position with respect to the issue involved,” asserted that the factual distinction relied upon by the Board to support its holding in Matter of D——, supra, had no legal significance. The Commissioner argued that a correct interpretation of
It is, therefore, the Service view that Matter of D—— erroneously states the law. It is further the Service view that the order entered by the Board on June 24, 1959, in no way resolves a conflict of law between that case and the instant case, since in asserting that an alien is properly held not deportable where the conviction has been expunged, the Board has asserted a legal principle contrary to that set forth in the Ninth Circuit in the instant case. Accordingly, since the issue is one which must be resolved in order that appropriate action may be taken in connection with the petition for certiorari to the Supreme Court (sic), it is requested that the case be certified to the Attorney General.
In referring the case to me for review, the Board has adhered to its view that the distinction between Matter of D——, supra, and this case is a valid one, and is consistent with the opinion of the Court of Appeals. The Board also states that acceptance of the Commissioner‘s view “would logically require a conclusion that the setting aside of a conviction, in accordance with similar statutory provisions of other States, likewise would be ineffective to prevent deportation,” thus overturning a long-established administrative practice.
The special inquiry officer, the Commissioner of Immigration and Naturalization, the Board of Immigration Appeals, the District Court, and the Court of Appeals are in agreement that the respondent was convicted of a narcotic violation within the meaning of
The history of
Moreover, to follow the Board‘s view would make the deportability of the alien depend upon the vagaries of state law. It has been said that only in California and a few other States is provision made for the cancellation of a record of conviction or for the withdrawal of a plea of guilty, upon the termination of probation. Probation and Related Measures (U.N. Publication No. 1951, IV. 2) 106. And
Notes
A further amendment was made by the Narcotic Control Act of 1956, 70 Stat. 575, to provide that a pardon was not to relieve from deportability an alien otherwise deportable because of conviction of a narcotic offense. See Gordon and Rosenfield, Immigration Law and Procedure, § 4.17.
Matter of D——, supra, was not referred to the Attorney General for review of the Board‘s decision.