MATTER OF G—
A-10028465
Dеcided by Board September 7, 1960 Approved by Attorney General January 17, 1961
January 17, 1961
9 I. & N. Dec. 159
An alien whose conviction by a California court is later expunged under section 1203.4 of the California Penal Code has not been “convicted” of a crime for the purposes of section 241(a)(4) of the Immigration and Nationality Act. (Cf. Matter of A— F—, 8—429.)
CHARGE:
Order: Act of 1952—Section 241(a)(4) [
BEFORE THE BOARD
(September 7, 1960)
DISCUSSION: The special inquiry officer terminated proceedings and certified the case to this Board for final decision. No change will be made in his decision.
Respondent, a single male about 22 years of age, a native and national of Germany, was admitted to the United States for permanent residence in 1955. On June 12, 1959, he committed forgery. He was convicted on July 12, 1959, in a California court. Sentence was to confinement in the county jail for one year, but execution was suspended and respondent was placed on probation. On December 15, 1959, the same court set aside the plea of guilty and dismissed the case pursuant to section 1203.4 of the Penal Code of California. The special inquiry officer, relying upon precedents holding that such an expungement of the record prevents the use of the “conviction” as a basis for deportation, terminated proceedings. The Service representative has filed a brief asking that deportation be ordered because the expungement does not eliminate the “сonviction” as a ground of deportation. Counsel for respondent asks that the order of the special inquiry officer be affirmed
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. The probationer shall be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney, or by the probation officer authorized in writing; 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.
A review of decisions concerning expungement reveals some conflict as to its effect, but the latest cases reaffirm the rule that the expungement wipes out the criminal proceedings and places the defendant in a position which he would have occupied if no accusation or information had been presented against him (People v. Taylor, 3 Cal. Rptr. 186 (1960); Stephens v. Toomey, 338 P.2d 182 (1959); Kelly v. Municipal Court, 324 P.2d 990 (1958)). There are exceptions to the rule. Despite the expungement, the State of California recognizes the existence of a conviction in a subsequent prosecution, in impeachment of the defendant, and in the regulation of privileges concerning drivers of motor vehicles, attorneys-at-law, doctors, and public school teachers (People v. Taylor, supra). An expungement may be obtained only by a person who has been placed on probation, a matter wholly within the discretion of the court (People v. Walker, 5 Cal. Rptr. 283; People v. Judson, 18 P.2d 379). The court may not give probation to a person guilty of the more serious crimes (
While the Federal courts considered the issue before the State made exceptions to the rule that an expungement eliminates the existence of a conviction, the Federal cases were decided when the law provided, as it does today, that the expungement does not eliminate the existence of the conviction in a subsequent prosecution. In re Paoli, 49 F. Supp. 128, 130 (N.D. Cal., 1943), reveals that after an expungement there was technically “no formal records remaining of a conviction.” Another court stated that the record of arrest, the conviction, and the probation are wiped out leaving no proof of
Prior to the decision of the Attorney General in Matter of A— F—, 8—429 (1959); the Board consistently held (with the knowledge of the Attorney General, Matter of H—, 6—619, 622 (1955)) that a conviction which had been expunged could not be made the basis for deportation proceedings because there was no longer a record of conviction (Matter of O— T—, 4—265; Matter of E— V—, 5—194; Matter of A— F—, supra). However, in Matter of A— F—, supra, the Attorney General hеld that when a narcotic violation is concerned (
Prior to the Immigration and Nationality Act, a judicial recommendation against deportation or a pardon (whether legislative or executive) barred deportation proceedings based on thе conviction of crime (section 19, Act of February 5, 1917). No distinction was made between narcotic and nonnarcotic violations. Section 241(b) of the Immigration and Nationality Act eliminated the legislative pardon as a bar to deportation proceedings (Matter of R—, 5—612). In 1956, an amendment to section 241(b) provided that a judicial recommendation against deportation or an executive pardon should not apply to an alien convicted of a narcotic offense (Act of July 18, 1956).
It was our belief that neither the 1952 change nor the one made in 1956 prevented an expungement from being given effect. The issue in a narcotic case was referred to the Attorney General, who, in Matter of A— F—, supra, ruled that in a narcotic case a convic-
Matter of A— F—, supra, holds that a conviction under
In fact, this is the view the Service representative asks us to adopt, it is the one which he emphasizes was advanced by the So-
- The contrary rule has been in effect since at least 1943 (Matter of A— F—, supra, p. 6).
- There has been no Congressional criticism of this rule.
- The reasoning in Matter of A— F—, supra, is most pertinent if an expungement is considered as a legislative pardon. For then, just as Congress indicated that a pardon would not suffice in a narcotic case, it indicated that a legislative pardon would not suffice in any criminal case and it would follow that an expungement should not be recognized. Here it is pertinent to note that Congress apparently does not consider an expungement as a legislative pardon for it made no effort to class an expungement as a legislative pardon after administrative decisions held thаt an expungement eliminated a conviction under the Immigration and Nationality Act (Matter of E— V—, 5—194 (1953)). This lack of action is especially significant since Congress corrected other administrative rulings which brought about results it did not desire. Moreover, an expungement is not a legislative pardon. The feature of legislative pardon with which we have dealt in immigration matters has been its indiscriminate and automatic application as an administrative function to any person who had served his prison term. An expungement (considered in the nature of a pardon for the purpose of the comparison) is not available to one who has served a prison term. It is a judicial act. While it must be given to one who satisfactorily completed probation, the granting of probation is a discretionary matter. The expungement must be applied for. It does not automatically attach to
- For purposes of the record, the State of California has wiped out the entire proceeding. There is now no conviction (Pino v. Landon, 349 U.S. 901).
- The Attorney General in Matter of A— F—, supra, restricted his ruling to an expungement of a narcotic violation where deportation proceedings were based on
section 241(a)(11) of the Act, and the Solicitor General in arguing the case before the Supreme Court stated that the Congressional policy as to narcоtic offenses is different from that relating to other offenses so that very different considerations were involved than were found in other criminal convictions (p. 7 of the Sol. Gen. brief). If we were to apply the exception of the narcotic rule to the instant proceeding, there would be nothing for the narcotic cases to be exceptional to. - Matters of doubt should be resolved in favor of the alien in deportation proceedings (Fong Haw Tan v. Phelan, 333 U.S. 6).
- While
section 241(a)(4) of the Immigration and Nationality Act must be interpreted in light of the attitude of strictness shown by Congress when it was written, it is not amiss to refer to the fact that Congress has progressively alleviated the rigor of the laws relating to convicted aliens so that an alien who has been convicted of a petty offense may enter as a matter of right (section 4, Act of September 3, 1954, 8 U.S.C.A. 1182a ), and an alien convicted of more serious offenses may be permitted to enter as a matter of discretion (section 5, Act of September 11, 1957, 8 U.S.C.A. 1182b ).
We conclude that an expungement of the record in California eliminates the “conviction” as a basis for deportation procеedings based on
ORDER: It is ordered that no change be made in the order of the special inquiry officer.
BEFORE THE ATTORNEY GENERAL
(January 17, 1961)
This deportation matter is before me pursuant to a referral under
The respondent, an alien who entered the United States in 1955, pleaded guilty in a California court to a charge of forgery of fictitious name committed June 12, 1959. The court sentenced him on July 29, 1959, to a term of one year in county jail but simultaneously suspended the sentence except as to 150 days thereof and placed him on probation for three years.
On August 25, 1959, a special inquiry officer ordered respondent deported under the provisions of
Following his release from county jail, respondent moved the court which had sentenced him for an expungement of his conviction under
On defendant‘s motion, defendant‘s plea of “Guilty” is vacated and set aside and a plea of “Not Guilty” is entered. Probation is terminated and the case dismissed, pursuant to section 1203.4, Penal Code.
Respondent thereupon applied to the Board of Immigration Appeals for a reconsideration of its decision approving his deportation. The Board reopened and remandеd the proceedings to the special inquiry officer. The subsequent order of the Board approving termination of the proceedings is the one before me now.
* * * 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 оf 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. The probationer shall be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney, or by the probation officer authorized in writing; Provided, That in any subsequent proseсution 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 issue to be decided here is whether an alien who has sustained a conviction which is later expunged under this statute is an “alien . . . who . . . is convicted of a crime . . .” for the purposes of
California has enacted legislation to prevent the operation of this statute in a few specified situations in addition to the one affected by its prоviso. As a result of this legislation, some of which overruled and some of which codified judicial decisions, an order of release under the provisions of
For some fifteen years the Board of Immigration Appeals has consistently held that a conviction expunged under the California statute does not afford the basis for deportation under either
My ruling in Matter of A— F—, supra, was grounded on the history of
Although
The Immigration and Naturalization Service points out that my decision in Matter of A— F— applies a “federal standard” and suggests that when considered with Arellano-Flores v. Hoy, 262 F.2d 667 (C.A. 9, 1958), cert. den. 362 U.S. 921, and Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959), the decision is applicable to cases arising under
Appellant relies heavily on United States ex rel. Freislinger, on Behalf of Kappel v. Smith, 7 Cir., 41 F.2d 707. The Seventh Circuit held that whether
a man had been “convicted” in state court was to be determined by the law of the state where the offense was committed and proceedings had. It was of the opinion that under Illinois law Freislinger had not been convicted because a final judgment of conviction had not been entered.
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.” 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, 47 S.Ct. 582, 71 L.Ed. 1009.2
In Wood v. Hoy, supra, which was concerned with a challenge to a deportation order issued under the authority of
We held there (Arellano-Flores v. Hoy) and we reaffirm here, that a conviction in California followed by a suspended sentence and placement on probation remains a “conviction” within the meaning of the Immigration and Nationality Act of 1952.
As appears from this statement,
Thus I am unable to agree that the Arellano-Flores and Wood decisions serve to extend my ruling in Matter of A— F— beyond the precise boundary which I marked out for it—i.e., beyond the limits of
Pino v. Landon, 349 U.S. 901 (1955), has a bearing on the issue presented here. In that case, as revealed by the lower court opinions sub nom Pino v. Nicolls, 119 F. Supp. 122 (D.C. Mass.), and 215 F.2d 237 (C.A. 1), an alien who had been ordered deported under
In accordance with United States ex rel. Freislinger on Behalf of Kappel v. Smith, supra, the Court of Appeals examined the Massachusetts precedents dealing with the meaning of the word “convicted.” It found that the Massachusetts courts had never been called upon to interpret it in the context of a deportation case and concluded that such meaning, in the interest of a uniform application of the federal statutes, is a “federаl question to be determined upon due consideration of the policy which section 241(a)(4) was designed to serve.” The court went on to hold that on the record the alien stood convicted within the purview of that section. The Supreme Court disagreed, rendering the following per curiam opinion:
On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation within the contemplation of
section 241 of the Immigration and Nationality Act . The judgment is reversed.
Cryptic as this cursory decision may be, it almost certainly evidences rejection of the Court of Appeals’ view that the construction of
Since what judicial precedent there is points to the validity of the long-standing rule of the Board of Immigration Appeals which it invoked in the instant matter and since there is no Congressional signpost pointing in the opposite direction, I find no reason to reverse the rule. Accordingly, the Board‘s оrder herein dated September 7, 1960 is approved.