MATTER OF IBARRA-OBANDO
A-11404949
Board of Immigration Appeals
Decided by Board August 2, 1966 and November 4, 1966 Decided by Attorney General December 28, 1967
Interim Decision #1828; 12 I. & N. Dec. 576
CHARGE:
Order: Act of 1952—
ON BEHALF OF RESPONDENT:
Joseph Forer, Esquire
711—14th Street, N.W.
Washington, D.C.
Lloyd E. McMurray, Esquire
228 McAllister Street
San Francisco, California 94102
(Brief submitted)
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief submitted)
The case comes forward pursuant to certification by the special inquiry officer of his order dated March 1, 1966 that the proceedings be terminated.
The record relates to a native and citizen of Nicaragua, 25 years old, male, who was admitted to the United States for permanent residence at Brownsville, Texas on October 31, 1957. On September 17, 1963 he was convicted in the Municipal Court fоr the Santa Rosa Judicial District, Sonoma County, California of burglary in violation of
On February 2, 1966 the Municipal Court of San Francisco, California issued the following order:
Under the power vеsted in me to correct clerical error, and in order to correct such error in the record of this case, and good cause appearing therefore, (sic) IT IS HEREBY ORDERED that the record in this case be corrected to show the following disposition of the case on December 10, 1965, before me in Department 12:
Imposition of sentence is suspended, and the defendant placed on probation to the court for 50 days, provided that as a condition of probation the defendant shall serve 30 days in County Jail.
On February 3, 1966 an application for dismissal pursuant to
The special inquiry officer cited Matter of G—, 9 I. & N. Dec. 159 in which the Attorney General upheld the holding of this Board that an alien, whose conviction by a California court is later expunged under
Matter of G—, 9 I. & N. Dec. 159, involved an alien who entered the United States in 1955, was convicted in a California court of forgery of a fictitious name committed June 12, 1959 and was sentenced on July 29, 1959 to a term of one year in the county jail but simultaneously the sentence was suspended except as to 150 days thereof and he was placed on probation for three years. Following his release from jail, respondent moved for an expungement of his conviction under
. . . 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 cоnviction 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 Attorney General stated that the issue to be decided was whether an alien whose conviction is later expunged under this statute is an “alien . . . who . . . is convicted of a crime . . .” for the purposes of
For some 15 years the Board of Immigration Appeals has consistently held that a conviction expunged under the California statute does not afford a basis for deportation under either
In discussing the Service contention that the decision in Matter of A—F—, when considered with Arellano-Flores v. Hoy, 262 F.2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921, and Wood v. Hoy, 266 F.2d 825 (9th Cir., 1959), was applicable to cases arising under
The case of Pino v. Landon, 349 U.S. 901 (1955), involved an alien who had been deported under
The Attorney General in Matter of G— observed that cryptic as this cursory decision might be, it almost certainly evidenced rejection of the Court of Appeals’ view that the construction of section 241(a)(4) is purely a “federаl question” to be determined in terms of the policy behind its enactment and without regard to state law and procedure. The Massachusetts procedure, although revoking the sentence, leaves the plea or finding of guilt undisturbed while the California procedure, by setting aside the plea or finding of guilt, moves a conviction even further away from an area of finality. Pino v. Landon would seem, therefore, to make it an a fortiori conclusion in a nonnarcotics case that an expungement of an alien‘s conviction under
Matter of A—F—, 8 I. & N. Dec. 429 (A.G., 1959), which was referred to by the Attorney General in his decision in Matter of G—, 9 I. & N. Dec. 159, held that a judgment of the California court, after finding of guilt, that the proceeding be suspended and probation be granted upon condition that the defendant serve one year in the county jail, constituted a “conviction” within the meaning of
In Kelly v. Immigration and Naturalization Service, 349 F.2d 473 (9th Cir., 1965) in which the sole issue involved was whether the petitioner was сonvicted within the contemplation of
In Burr v. Immigration and Naturalization Service, 350 F.2d 87 (9th Cir., February 21, 1966), the alien was convicted on March 28, 1951 of a crime involving moral turpitude, received a suspended
The court, however, went on to dispose of a number of other issues raised by the petitioner and restated by the Immigration and Naturalization Service. Although there is no indication either in the administrative file, Matter of B—, A-6451540, or in the record before the court, that the alien‘s conviction had been expunged under
The additional issues considered by the court may be considered in the nature of dicta inasmuch as the court had disposed of the primary issue which involved the denial of a collateral attack upon the prior deportation order of 1959. The court, relying upon the three cases refеrred to, supra, in answer to Matter of G—, 9 I. & N. Dec. 159 (1960), was relying upon three cases all of which involved narcotic convictions and deportation orders pursuant to section 241(a)(11) of the Immigration and Nationality Act. These decisions were in accord with the Attorney General‘s holding in Matter of A—F—, 8 I. & N. Dec. 429 (1959). Inasmuch as there was no evidence of an expungement pursuant to
The Attorney General in Matter of G—, 9 I. & N. Dec. 159, endorsed the holding of the Board that a conviction expunged under the California statute does not afford the basis for deportation under section 241 except as to narcotic convictions as spelled out in Matter of A—F—, 8 I. & N. Dec. 429 (1959). The Attorney General in Matter of G— was persuaded by the decision in Pino v. Landon, 349 U.S. 901, that the Supreme Court rejected the view that the construction of section 241(a)(4) was purely a “federal question” to be determined in terms of the policy behind its enactment and without regard to state law and procedure. Judicial precedents subsequent to the Attorney General‘s holding in Matter of G— in 1961 do not support a basis for abandoning the rule stated by the Attorney General in Matter of G—. Indeed, the strong dissent of Judge Ely in Kelly v. Immigration and Naturalization Service, 349 F.2d 473, is an endorsement of the Attorney General‘s view in Matter of G— and even expresses disagreement with
We conclude that in view of the expungement under
We will not at this time certify our order to the Attorney General as informally requested by the appellate trial attorney at oral argument. We will await a formal request by the Commissioner to refer the case to the Attorney General as provided in
ORDER: It is ordered that the decision of the special inquiry officer dated March 1, 1966 terminating the prоceedings be and the same is hereby approved.
BEFORE THE BOARD
The case comes forward on motion of the Service dated August 29, 1966 requesting reconsideration of our order of August 2, 1966 terminating the proceedings.
The facts have fully been set forth in our prior order of August 2, 1966 and will be restated briefly. The case came before us pursuant to certification by the special inquiry officer of his order dated March 1, 1966 terminating proceedings. The record relates to a native and citizen of Nicaragua, then 25 years old, male, who was admitted to the United States for permanent residence at Brownsville, Texas on October 31, 1957. On September 17, 1963 he was convicted of burglary in violation of
On the basis of the holding in Matter of G—, 9 I. & N. Dec. 159 (Attorney General 1961), the special inquiry officer terminated proceedings. On August 2, 1966, after consideration of the briefs filed by the trial attorney and by counsel for the respondent, аnd upon consideration of oral argument by the appellate trial attorney, we concluded that in view of the expungement under
The present motion relies principally upon the case of Burr v. Immigration and Naturalization Service, 350 F.2d 87.1 In our prior order of August 2, 1966 we considered the Burr case at length. The Burr case involved an alien who had entered the United States on October 8, 1946, had been convicted on March 28, 1951 of a crime involving moral turpitude, received a suspended sentence, was granted probation for a period of ten years conditioned upon his making restitution and serving ten months of his probationary period in jail, the alien was found deportable under
We held that this holding disposed of the primary issue in the Burr case upholding the prior deportation order and upholding the current deportation order under
In our order of August 2, 1966 we explored at length the holding of the Attorney General in Matter of G—, 9 I. & N. Dec. 159, which involved an alien who is convicted of forgery and was sentenced on July 29, 1959 to a term of one year, the sentence was suspended except as to 150 days thereof, placed on probation for three years, moved for an expungement of his conviction under
The Attorney General, in Matter of G—, 9 I. & N. Dec. 159, noted that since 1943 the Board of Immigration Appeals had consistently held that a conviction expunged under the California statute did not afford a basis for deportation under
We would hesitate to recommend a change in the holding of the Attorney Gеneral in Matter of G—, 9 I. & N. Dec. 159, upon the basis
The other matters set forth in the motion are largely a rehash or a restatement of arguments previously considered and rejected by the Attorney General in Matter of G—. The two cases which have been decided in the 9th Circuit since the Attorney General‘s decision in Matter of G—, Hernandez-Valenzuela v. Rosenberg, 304 F.2d 639 (1962), and Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (1965), both involve narcotics offenses and deportation orders under
In summary, in Matter of G—, 9 I. & N. Dec. 159, the Attorney General restated the general rule that an alien, whose conviction by a California court is later expunged under
ORDER: It is ordered that thе motion be and the same is hereby denied.
BEFORE THE ATTORNEY GENERAL ON REVIEW
In this case the Board of Immigration Appeals has affirmed the decision of the Special Inquiry Officer terminating deportation proceedings. The Board‘s decision has been referred to me for review at the request of the Commissioner of Immigration and Naturalization, under
These proceedings were instituted on the charge that the respondent had been convicted of two crimes involving moral turpitude and was thus deportable under
Prior to 1959 the Board had consistently held for over fifteen years that a conviction expunged in accordance with such state procedure does not afford the basis for deportation either under
I limit my disagreement to the precise issue presented—namely, a deportation proceeding brought under § 241(a)(11), as it may be affected by state laws of the nature of the California statutes considered herein.
In Matter of G—, 9 I. & N. Dec. 159 (1961), Attorney General Rogers held that his ruling in Matter of A—F— was indeed to be limited to
In the present case the Board, in its order of August 2, 1966, approved the decision of the Special Inquiry Officer and, in its order of November 4, 1966, denied the Service‘s motion requesting reconsideration of its prior order. Both orders were accompanied by opinions amply supporting the Board‘s view that the Service had not demonstrated sufficient reason to warrant administrative re-examination of this rule, which has been in effect since at least 1943.
Attorney General Rogers, in Matter of G—, carefully considered the instant question and concluded that in determining the effect of expungement of convictions on an alien‘s deportability a distinction is warranted between narcotics convictions for the purpose of
In the Burr case, decided in 1965, the Court of Appeals for the Ninth Circuit indicated its disagreement with Matter of G—, stating that its holding in three earlier cases of that year,2 to the effect that expungement of an alien‘s narcotics conviction does not affect his deportability, “applies equally” to deportability in a non-narcotics case. 350 F.2d at 90. This statement, however, was clearly not necessary to the decision in Burr. The issue raised there by the alien as to the effect оf expungement of a non-narcotics conviction on deportability was purely hypothetical, since he sought to attack collaterally a prior deportation grounded on a conviction which had not been and could not have been expunged.3 In this context the court properly rejected the alien‘s contention summarily. It could have done so by distinguishing Matter of G— as inapplicable because it involved non-narcotics convictions which had actually been expunged.
Moreover, it should be noted that although in Burr the court cursorily equated narcotics convictions with non-narcotics convictions,
Similarly, in the most recent Ninth Circuit case involving the question of the effect of expungement on deportability for a narcotics conviction, the court merely reaffirmed its 1965 holding that expungement under
In these circumstances, I do not feel that the court‘s statement in Burr, which is relied upon by the Service, requires reconsideration of the Attorney General‘s carefully considered ruling in Matter of G—.
The Board‘s decision is affirmed.