In re Fructoso LUVIANO-Rodriguez, Respondent1
File A92 569 244 - Los Angeles
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided February 29, 1996
Interim Decision #3267
235 I&N Dec.
FOR RESPONDENT: Christine E. Stancill, Esquire, South Pasadena, California
BEFORE: Board En Banc: SCHMIDT, Chairman; VILLAGELIU, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: HEILMAN, Board Member, joined by FILPPU and COLE, Board Members. Concurring and Dissenting Opinion: HOLMES, Board Member, joined by DUNNE, Vice Chairman. Dissenting Opinion: HURWITZ, Board Member, joined by VACCA, Board Member.
MATHON, Board Member:
In a decision dated April 26, 1994, the Immigration Judge found the respondent deportable under
I. FACTUAL AND PROCEDURAL BACKGROUND
The respondent is a 26-year-old native and citizen of Mexico who entered the United States on January 21, 1983. The record reflects that his status was
At his deportation hearing, the respondent denied the allegation of the Order to Show Cause and Notice of Hearing (Form I-221) that he was convicted of the above firearms offense, and he denied the charge of deportability. Through counsel, the respondent sought adjournment of the proceedings pursuant to Matter of Tinajero, 17 I&N Dec. 424 (BIA 1980), in order to seek expungement of his conviction. The Immigration Judge denied his request, noting that Matter of Tinajero, supra, did not apply to a firearms offense, and found the respondent deportable as charged. He further concluded that the respondent was not statutorily eligible for the relief of voluntary departure.
II. ISSUES ON APPEAL
The respondent initially argues that the Immigration Judge erred in denying his request for a continuance to pursue expungement of his firearms conviction. He claims that the Immigration Judge improperly interpreted Matter of Tinajero, supra, as applying only to crimes involving moral turpitude.
On appeal, he has submitted as additional evidence a copy of an order from the California criminal court dated July 15, 1994, setting aside his plea and dismissing the concealed weapon complaint against him pursuant to
The respondent finally contends that the Immigration Judge erred in denying his request for voluntary departure. He claims that the Immigration Judge improperly interpreted
Initially, we reject the respondent‘s contention that the Immigration Judge improperly denied his request for a continuance to seek expungement of his conviction. Matter of Tinajero, supra, imposes no mandate on the Immigration Judge. Instead, it merely noted the Service‘s policy to defer the institution of deportation proceedings in the case of aliens who are eligible to have a criminal conviction expunged and granted a Service motion to remand pursuant to that policy. We have consistently declined to review the Service‘s exercise of its prosecutorial discretion. See Lopez-Tellez v. INS, 564 F.2d 1302 (9th Cir. 1977); Matter of Torres, 19 I&N Dec. 371 (BIA 1986), and cases cited therein. In the present case, the Immigration Judge denied the respondent‘s motion for a continuance which had been opposed by the Service on the basis that the respondent‘s conviction was for a firearms violation, and thus, Matter of Tinajero, supra, was inapplicable. The decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown, and that decision will not be overturned on appeal unless it appears that the respondent was deprived of a full and fair hearing. Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987);
IV. EXPUNGEMENT OF A FIREARMS CONVICTION
We agree with the respondent that if his conviction has been expunged pursuant to
In Matter of A-F-, supra, the Attorney General declined to follow the general rule regarding expungements pursuant to
The Immigration Judge in this case ruled that a firearms conviction resembled a drug conviction more than it resembled a conviction for a crime involving moral turpitude, and thus, expungement of such a conviction pursuant to
Accordingly, we conclude that both the Board and the Immigration Judge are bound by the Attorney General‘s rulings in Matter of Ibarra-Obando, supra, and Matter of G-, supra, which affirmed our precedent on nonnarcotic cases that expungement under
ORDER: The motion to remand is granted. The record is remanded to the Immigration Judge pursuant to
CONCURRING OPINION: Michael J. Heilman, Board Member, in which Lauri S. Filppu and Patricia A. Cole, Board Members, joined
I respectfully concur in the result reached in the majority opinion, but for different reasons.
The majority of the Board has decided not to request that the Attorney General reconsider what effect should be given to a conviction expunged pursuant to
As noted in the dissent, the expungement provisions of
Furthermore, in light of the Board‘s decision in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), I believe that the question of the validity of a state expungement for immigration purposes should be reconsidered. In Ozkok, the Board found that the appropriate test for determining whether a conviction exists should revolve around the issues of establishment of guilt and imposition of punishment, rather than the state‘s characterization of its criminal procedures. In view of that standard, which the circuit courts have approved as proper for purposes of interpreting the federal immigration laws, I question whether expungement procedures, where guilt and punishment generally precede the rehabilitative process, are effective to eliminate the immigration consequences of an alien‘s conviction.
However, the Attorney General has ruled that expungement of a conviction under
In Matter of G-, supra, the Attorney General stated that his holding in Matter of A-F-, supra, was limited and that in other than narcotics cases, he would continue his approval of the Board‘s previous rule recognizing expungements under
CONCURRING AND DISSENTING OPINION: David B. Holmes, Board Member; in which Mary Maguire Dunne, Vice Chairman, joined
I respectfully concur in part and dissent in part.
I.
I concur in the majority‘s finding that the Immigration Judge did not err in denying the respondent‘s request for a continuance to seek an “expungement” of his firearms conviction under
II.
I join in Section I of Board Member Hurwitz’ separate opinion and dissent from the majority‘s finding that an expungement of the respondent‘s firearms conviction under
Both the majority and Board Member Heilman‘s concurring opinion in essence conclude that the Board‘s “hands are tied” regarding this issue by previous Attorney General decisions concerning the effect on deportability of “expungements” under
Administrative decisions addressing the effect in immigration proceedings of an “expungement” of a conviction under
First, the Attorney General has not ruled that the mere fact that a conviction is “expunged” under
Secondly, the Attorney General has never addressed the effect on deportability under
Thus, the Attorney General has ruled that the fact that there has been a “technical” expungement of a conviction under
Further, for the reasons set forth in section I of Board Member Hurwitz’ dissent, I would find a clear congressional “signpost” that aliens convicted of weapons offenses should not escape deportation because of a state procedure authorizing a “technical” erasure of the conviction. See Matter of A-F-, supra, at 445-46. This is particularly true in view of the fact that Congress has “progressively strengthened” the deportation laws dealing with aliens convicted of such offenses. Id. The rationale expressed by the Attorney General in Matter of A-F- supports a finding of deportability in this case. Accordingly, I would affirm the Immigration Judge‘s finding of deportability under
III.
I do not join in the remainder of Board Member Hurwitz’ dissent because I do not find it necessary for the resolution of the issues before us and because the broader questions addressed therein have neither been raised nor briefed by the parties.
DISSENTING OPINION: Gerald S. Hurwitz, Board Member, in which Fred W. Vacca, Board Member, joined
I respectfully dissent.
The question now before the Board is whether an alien whose firearms conviction has been expunged pursuant to
A review of the earliest cases involving expungements reveals that the initial inquiry regarding deportability was whether a conviction remained final following its expungement under
However, in Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959), the Attorney General viewed the expungement of a narcotics conviction under
The Attorney General further stated that Congress intended the inquiry into whether a conviction exists to “stop at the point at which it is ascertained that there has been a conviction in the normal sense in which the term is used in federal law.” Matter A-F-, supra, at 446. Citing Berman v. United States, 302 U.S. 211 (1937), he indicated that the point of conviction is when the trial court imposes sentence, even if it has only placed the defendant on probation, which the Supreme Court had stated was “concerned with rehabilitation, not with the determination of guilt.” Id. at 213. He therefore concluded that unless the conviction was reversed by the usual appellate process, it was immaterial that the record of conviction was cancelled by a state expunction procedure.
Subsequent to the decision in Matter of A-F-, supra, however, the Attorney General again addressed the issue of expungements in Matter of G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961). He stated there that his disagreement with the Board‘s analysis regarding the existence of a conviction following expungement was limited to narcotics cases. The Attorney General also relied on the Supreme Court‘s decision in Pino v. Landon, 349 U.S. 901 (1955), for two propositions. First, he concluded that Pino rejected the view
There appear to be several areas of tension that arise from these two holdings of the Attorney General. The first deals with whether the effect to be given to a state expungement should be decided as a matter of law or policy. In Matter of G- and its predecessor decisions, the question seemed to be one of legal interpretation, whereas in Matter of A-F-, the Attorney General made a policy determination based on an assessment of congressional intent. Next, there is the question of finality of the conviction. According to Matter of G-, there was no finality following expungement because the finding of guilt was set aside. However, in Matter of A-F-, imposition of sentence and probation was considered the point of finality, absent appellate scrutiny, since the cancellation of a conviction by a procedure that had no regard for its merits was not deemed effective to prevent deportation. Finally, there is the issue of whether the existence of a conviction for immigration purposes should be determined according to federal or state law. The idea that the construction of the immigration laws was purely a federal question was rejected in Matter of G-, but in Matter of A-F-, the Attorney General declined to make the deportability of an alien dependent on “the vagaries of state law.” Matter of A-F-, supra, at 446.
In view of the tensions between these two decisions, it is unclear whether the rationale of Matter of G- or Matter of A-F- should be applied in deciding the effect to be given to expungements of firearms convictions. Furthermore, although Matter of G- characterized the ruling in Matter of A-F- regarding narcotics expungements as a limited departure from the prior Board position that an expungement eliminates a conviction for immigration purposes, all previous published decisions on this point dealt exclusively with crimes involving moral turpitude. Therefore, the issue whether a firearms expungement is valid to prevent deportation was not, in fact, before the Attorney General in either case. See Matter of G-, supra, at 166-67 (noting that the issue presented was whether an alien was deportable under former
Many years have passed since the decisions in Matter of G- and Matter of A-F- were rendered. In the meantime, Congress has made important revisions in the immigration laws regarding firearms violations. Prior to 1988, an alien was deportable for a firearms violation only if he was convicted of unlawfully possessing or carrying an automatic or semiautomatic weapon or a sawed-off shotgun. See former
At the time the decisions on expungement were rendered, the Attorney General did not address what effect an expungement under state law would have on a firearms conviction of an alien in immigration proceedings. In the interim Congress has significantly broadened the scope of the deportation provisions regarding firearms violations in response to national concerns about the increasing violent use of guns.2 In view of these changes in the immigration laws, it is apparent that Congress considers firearms violations
II. EROSION OF THE CALIFORNIA EXPUNGEMENT LAW
The purpose of expungement statutes is to mitigate the collateral effects of a conviction for purposes of rehabilitation. See Bryant H. Byrnes, Expungement in California: Legislative Neglect and Judicial Abuse of the Statutory Mitigation of Felony Convictions, 12 U.S.F. L. Rev. 155, 157 (1977). However,
At the time of its inception, the California statute was intended to allow convicted defendants to avoid the permanent stigma of a conviction, but it was soon subject to erosion and narrow construction. Id. at 167-68. For example, in Meyer v. Board of Medical Examiners, 206 P.2d 1085, 1087 (Cal. 1949), the Supreme Court of California held that the legislature did not intend for an expungement to “obliterat[e] the fact that the defendant had been finally adjudged guilty of a crime” and concluded that a physician‘s license could therefore be suspended on the basis of an expunged conviction. The California legislature subsequently codified the court‘s ruling and added several other restrictive provisions. See Bryant H. Byrnes, supra, at 168-69. Thus, when the Attorney General rendered his decision in Matter of G-, supra, an expungement pursuant to the statute would not prevent the use of a conviction for purposes of a subsequent prosecution, the revocation of a driver‘s license, or the denial or revocation of several occupational and professional licenses, such as licenses to practice law and medicine or to teach in a public school. See Matter of G-, supra, at 166.
However, the scope of the California statute has been even further eroded since that time, both by legislation and judicial interpretation. For example, in Matter of G-, supra, the Attorney General specifically mentioned that an offender was relieved from prohibition against possession of a firearm by expungement under
The California Business and Professional Code also currently provides that a license regulated by that code may be denied on the basis of a conviction, irrespective of an order of expungement pursuant to
California caselaw that was decided after Matter of G-, supra, also illustrates how the effectiveness of
The California courts have concluded that an expungement under
III. CHANGED INTERPRETATION OF THE TERM “CONVICTION” UNDER MATTER OF OZKOK
In Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), this Board reviewed the historical development of the question of what constitutes a final “conviction” for immigration purposes. We noted that the standards applied since the 1950s were no longer appropriate due to the numerous and varied state criminal procedures that had evolved in the meantime. Under these state laws, differing terminology was used to define a conviction and the multitude of procedures that had been created to ameliorate the consequences of a conviction. These variations in how the states characterized a “conviction” and our dependence on a state definition for immigration purposes had led to anomalous and unfair results. Thus, we noted that due to the differences in state penal laws, some aliens, who were clearly guilty of criminal misconduct and whom Congress intended to be considered “convicted,” had been allowed to escape deportation, while others, guilty of the same offense, were deportable. We therefore found it necessary to create a new standard which would provide uniformity in the application of our federal laws, while implementing the will of Congress to deport aliens guilty of crime.4
In seeking to determine a fair standard, we considered the basic elements necessary for the consequences of a conviction to attach. We formulated a test under which a person was deemed convicted when guilt had been established and some punishment for the criminal conduct had been imposed, unless further proceedings were available to reassess the question of guilt or innocence. By looking to these essential, universal elements of a conviction rather than to each individual state‘s characterization of that term, we insured that aliens who had been treated by their respective states as though they had been convicted were considered to have been convicted for immigration purposes. In light of our decision in Matter of Ozkok, supra, I believe that a reexamination of our view of expungements is appropriate.
Generally, before a conviction can be “expunged,” the defendant must necessarily have pled guilty or nolo contendere or been found guilty of a crime. A sentence to confinement or probation must also have been completed, or probation terminated prior to completion. Therefore, the elements of guilt and punishment are both present, and there is nothing further required to render the conviction final.
I find it anomalous that a convicted alien, whose guilt of a criminal offense is unquestioned, who has been subjected to punishment, and whose expunged conviction still carries with it many of the consequences of a conviction under state law may be permitted to avoid deportation simply because the state chooses to reward his good behavior by releasing him from some of the penalties otherwise imposed on convicted persons. See Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971); Garcia-Gonzales v. INS, supra; Matter of A-F-, supra. Applying the rationale of Matter of Ozkok, supra, I believe that such an alien should bear the immigration consequences of his conviction.
IV. PRINCIPLES OF FEDERALISM
In Matter of A-F-, supra, the Attorney General concluded that narcotics violators could not avoid deportation by means of a state procedure authorizing a technical erasure of the conviction because the deportability of an alien
Deportation is a function of federal and not of state law. In the context of a narcotics conviction, deportation is a punishment independent from any that may or may not be imposed by the states. While it is true that the same event, the state conviction, triggers both sets of consequences, it would be anomalous for a federal action based on a state conviction to be controlled by how the state chooses to subsequently treat the event. It is the fact of state conviction, not the manner of state punishment for conviction, that is crucial.
Id. at 1200 (emphasis added).
Other circuit courts have also adopted the principle that Congress intended the determination whether an alien has been “convicted” for immigration purposes to be made pursuant to federal law and policies rather than pursuant to the various procedures prescribed by state law. See Yanez-Popp v. United States INS, 998 F.2d 231 (4th Cir. 1993); Chong v. INS, 890 F.2d 284 (11th Cir. 1989); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th Cir. 1971); see also Rehman v. INS, 544 F.2d 71 (2d Cir. 1976) (noting that construction of a term in immigration statutes is an issue of federal law, yet holding that enforcement of federal deportation laws would not be undermined by recognition of state policy similar to federal leniency policies). See generally Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983) (holding that the determination whether a conviction exists for purposes of federal gun control laws is a question of federal, not state law, despite the fact that the predicate offense and its punishment are defined by state law).5 This
principle, that federal law is controlling in the interpretation of the immigration laws, has also been recently reaffirmed by the First, Fifth, and Ninth Circuits. Wilson v. INS, 43 F.3d 211 (5th Cir.), cert. denied, 116 S. Ct. 59 (1995); Paredes-Urrestarazu v. United States INS, 36 F.3d 801 (9th Cir. 1994); Molina v. INS, 981 F.2d 14 (1st Cir. 1992); Yazdchi v. INS, 878 F.2d 166 (5th Cir.), cert. denied, 493 U.S. 978 (1989).
In regard to the specific issue now before us, the Fifth Circuit has affirmed a decision of this Board in which we concluded that the finality of a firearms conviction was not vitiated for deportation purposes by an expungement pursuant to Texas law. Gutierrez-Rubio v. INS, supra. Citing its prior opinion in Gonzalez de Lara v. United States, supra, the court rejected the alien‘s argument that its holding in the previous case, i.e., that an expunged conviction is not eliminated as a ground for deportation, should be limited to narcotics violations. Instead, the court stated that it had previously relied on the “principles of federalism,” which it found were “in no way bounded by the nature of the offense involved.” Gutierrez-Rubio v. INS, supra, at 1244. Thus the Fifth Circuit concluded that “[t]he manner in which Texas chooses to deal with a party subsequent to his conviction is simply not of controlling importance insofar as a deportation proceeding—a function of federal, not state, law—is concerned.” Id. at 1244 (quoting Gonzalez de Lara v. United States, supra, at 1318).
In cases involving matters other than immigration law, the Fifth Circuit has relied on this principle of federalism to find that federal law controls the definition of the term “conviction.” Thus, in United States v. Gray, 692 F.2d 352 (5th Cir. 1982), the court held that federal firearm provisions, which are keyed to the fact of a state conviction, are independent of state law procedures for vacating a conviction upon completion of probation. See also United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980) (rejecting the assertion that no prior conviction existed for a federal firearms violation because the conviction was not considered final under Texas law); United States v. Padia, 584 F.2d 85 (5th Cir. 1978) (refusing to recognize the effect of a state expungement, with reliance on Gonzalez de Lara for the proposition that state action subsequent to a conviction is not controlling where federal gun control law is concerned).
Similarly, the Ninth Circuit has clearly expressed its view that federal statutes were intended to have uniform application and should not be made to depend on the variations in state law. See, e.g., United States v. Bergeman, 592 F.2d 533 (9th Cir. 1979) (holding that a state expungement does not change the status of a person as a convicted felon for purposes of federal gun control law); Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978) (finding that a
Thus, in Burr v. INS, supra, the Ninth Circuit rejected an alien‘s assertion that the expungement under California law of his conviction for a crime involving moral turpitude would eliminate it for deportation purposes. According to the court, the rationale stated in previous narcotics cases regarding Congress’ intent to have uniform application of federal laws was equally applicable where the deportation was based on a crime involving moral turpitude. See Kelly v. INS, supra; Garcia-Gonzales v. INS, supra. This holding was subsequently reiterated in Ocon-Perez v. INS, 550 F.2d 1153 (9th Cir. 1977), where the court stated that the alien‘s convictions for crimes involving moral turpitude would retain their vitality for deportation purposes even if they were expunged.
This pattern of decisions, which indicates that federal issues should be adjudicated in a uniform manner, lends considerable weight to the position that state expunction provisions are ineffective to vitiate a conviction for federal immigration purposes.
V. CONCLUSIONS
The decisions in Matter of G-, supra, and Matter of A-F-, supra, addressed only the effect of expungement of a conviction for crimes involving moral turpitude and drug violations. The Attorney General has not determined the issue of expungement of firearms convictions. I therefore do not agree with the majority that we are bound by Matter of G- in deciding the effect of an expunged firearms conviction.
Moreover, many changes have occurred since the Attorney General‘s decisions in Matter of G- and Matter of A-F-. Not only has Congress revised the immigration laws on firearms violations, but the California expungement statute on which the Attorney General‘s opinions were based has been significantly weakened in its effect. Furthermore, our own interpretation of what
In view of the strict treatment of Congress toward aliens who commit firearms offenses, I would find that an expunged firearms conviction is not eliminated for immigration purposes. Furthermore, I conclude that the effect of the procedure under
Accordingly, I would dismiss the appeal and refer the issue to the Attorney General for reconsideration of Matter of G-, supra, and Matter of A-F-, supra.