*2 CANBY, Before WALLACE and Circuit Judges, QUACKENBUSH,* and District Judge.
WALLACE, Judge: Circuit appeals Morales-Alvarado from the deci- sion of the of Immigration Board Appeals (Board) denying him the relief of voluntary departure respect with to his order of de- portation. Morales-Alvarado claims that improperly Board considered his crimi- nal conviction of the crime of indecent lib- erties, exercising its deny discretion to his voluntаry departure. for Morales-Alvarado asserts that the convic- tion should not have been considered be- pending appeal cause it was in state court and thus Subsequent was not final. to oral argument in the appeal, instant the Wash- ington Appeals Court of affirmed the con- viction of Therefore, Morales-Alvarado. we conclude that this is moot and it is dismissed.
I Morales-Alvarado, Guatemala, a citizen of entered the United on States December 1976, as a visitor for business. He was authorized to remain in country until January 1977. He has remained in the United States since that time. In January 1978, Morales-Alvаrado was convicted of petty taking theft for a hat valued at $1.35. Immigration The & Naturalization Service (INS) served Morales-Alvarado with an Or- der to Show Cause August on alleging that deport- Morales-Alvarаdo was having able for remained in the country beyond expiration of his May visa. In 1979, Morales-Alvarado was convicted in Washington State of for the crime of Smith, Dan Stormer and Spo- Richard liberties, indecent arising out of an incident kane, Wash., petitioner. year girl. with an 8 placed old He was Devine, Frank E. Dept, Justice, Wash- probation years, for three and was ordered ington, C., brief; D. Fisher, Eric A. to serve jаil, six months in with credit for Washington, D.C., argued respondent. time served. 6, 1979,
On June Morales-Alvarado’s de- portation hearing was held. Morales-Alva- * Quackenbush, ington, Honorable sitting by Justin L. designation. United Judge, States District Eastern District of Wash- considering indecent liberties convic- his deportability for remain-
rado admitted ap- on direct expira- was after the tion while conviction ing in the United Appeals. visa, Washington applied peal Court of but tion hearing, once was argues consider- departure. At Morales-Alvarado still was conviction, deport- that Morales-Alvarado ordering established him ing the *3 would not be re- serving jail, and time in and ed, its discretion vio- Board abused the 1979, immigra- the September until leased equal protection and process lated his due any evi- judge to hear more refused tion of his him the effeсt rights by denying dence, was that Morales-Alvarado and held appeal. He not does right to the state depar- ineligible voluntary statutorily for eligible be for volun- that he would contend leave the United hе could not ture because were af- tary departure if his conviction attorney for Mo- promptly. The States appeal.1 firmed objected the to termination rales-Alvarado put proceedings notice, he wished to of the because see United judicial We take of Morales-Al- 698, more on behalf Gonzalez, (2d evidence 707 442 F.2d v. 845, varado. denied, (en banc), U.S. 92 Cir.) cert. 404 146, (1971), 81 that subse 30 L.Ed.2d S.Ct. immigra- the appealed Morales-Alvarado appeal, Mo argument oral in this quent to his for judge’s tion denial of affirmed. conviction was rales-Alvarado’s voluntary departure Board. In Octo- Morales, (Wash.Ct.App. No. 3449 1979, v. the of State Board held that issue ber the 1980). 18, Although Morales-Alvarado ability depart to Dec. Morales-Alvarado’s his petition for review of convic may Morales-Alva- still promptly wаs moot because Washington,2 jail. Supreme of The Board went Court of rado was then out tion in the request appeals right. The on to decide Morales-Alvarado’s his of he has exhausted it, voluntary departure on the record before hears Washington Supreme Court cases immigration to remand to discretion, rather than its discretion is only in its and denied, in the exercise of judge. The Board governed by well-defined considerations. discretion, applica- its Morales-Alvarado’s 13.4, 13.1, Wash.R.App.P. 13.6. departure. The tion for reason may not be A criminal conviction gave for the denial Morales-Alvarado’s was immigration authorities considered petty of liberties and convictions indecent Landon, v. 349 it is Pino U.S. until “final.” both convic- theft. The Board held that 576, (1955) 901, (per 99 1239 75 S.Ct. L.Ed. turpitude, of and tions were crimes moral INS, 686, curiam); v. 537 F.2d 691 Marino discretionary of grant “a concluded that INS, 529, 1976); v. F.2d (2d Will 447 Cir. voluntary departure warranted in the is not 1971). (7th determination Cir. The 532-33 case.” finality of a conviction is a matter of the of II law, not a matter of immigratiоn federal INS, court, 344 state law. See Garcia-Gonzales appeal to this Morales-Al On Cir.), denied, (9th 382 only the Board erred 808-09 cert. varado contends that F.2d petty voluntary departure, petitioner gardless of a whether theft is a crime moral 1. To obtain requirements satisfy statutory turpitude, it that conviction for must and is clear his certain liberties, adjudged person “a of his of 6 months must to been indecent in аnd sentence be have years” probation, good prison years’ would render least moral character for at five and 3 involuntary 1254(e). ineligible depar- prior application. statutorily to U.S.C. § his 8 him INS, (9th Patel v. 542 F.2d 799 Cir. Morales-Alvarado’s conviction for inde- ture. final liberties, 1976). years’ of cent probation, with sentence three his section would him from eliminate 1254(e)’s requirement he not fall within that re- has filed a mоtion for 2. Morales-Alvarado 1251(a)(4). pertains Washington section section to That Court of consideration with the Appeals. persons involving Washington procedure, of moral convicted crimеs this is Under turpitude year filing and to a or more prerequisite petition sentenced a for review a prison, involving Supreme Washington or convicted of two crimes Wash.R. Court. with the 1251(a)(4). turpitude. 13.4(a). 8 Re- 13.3(b), § morаl U.S.C. App.P.
175 (1965). 15 L.Ed.2d Because U.S. S.Ct. Morales-Alvarado has exhausted question us is a The before whether convic- conviction, appeals right his from his purposes deportation tion is “final” for procеeding conviction is final as far as this proceedings any appeal a matter once as may complain is concerned. He not now right exhausted. has been improperly Board cоnsidered his Therefore, conviction before it was
The
we have
final.
cases
reviewed con
convictions,
cerning finality of criminal
appeal
is moot.
laws,
purposes
immigration
draw
APPEAL DISMISSED.
between
distinction
convictions on di
subject
rect
those
and
collateral
CANBY,
Judge, dissenting:
Circuit
attack. A conviction
not “final” while on
appeal,
direct
cannot
be considered for
I respeсtfully dissent. Federal courts
*4
purposes
deportation
the
of
or
have
held
consistently
that a criminal con
Yet,
departure.
subject
a conviction
to col
immigration
viction is
purposes
final
other
is
lateral attack or
modification
final.
only
appellate
when direct
review of the
INS,
506,
(9th
See Forstner v.
579 F.2d
508
conviction has
or
been exhausted
waived.
denied,
1978),
1071,
Cir.
439
cert.
U.S.
99
Hernandez-Almanza v. United
De
841,
(1979);
S.Ct.
review deportation reopening of the A reversed. occurred, has
proceedings deportation after INS, (9th F.2d 956 Cir.
see Mendez hardship caused
1977), undo the does not I therefore procedure. would
that drastic moot, and would appeal is not that this
hold by pe- issues raised the substantive
address
titioner. OF
The WAHKIAKUM BAND *5 INDIANS, al., et
CHINOOK
Plaintiffs-Appellants, BATEMAN, Allen
Mrs.
Defendant-Appellee.
No. 80-3211. Appeals,
United Court
Ninth Circuit. 6,May
Argued and Submitted 1981. Aug.
Decided 1981.