reasoning that the INS ought to recognize a state expungement of marijuana possession because no “fear of undermining enforcement of federal deportation laws” can exist where such recognition “would extend no further than where Congress itself has gone for federal criminals”
How later courts described this case
- reasoning that the INS ought to recognize a state expungement of marijuana possession because no “fear of undermining enforcement of federal deportation laws” can exist where such recognition “would extend no further than where Congress itself has gone for federal criminals”
- noting that construction of a term in immigration statutes is an issue of federal law, while holding that state pol- icies to relieve a convicted alien from mandatory disability of deportation could be accorded the same respect as federal leniency policies without undermining enforcement of federal deportation laws
- 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 recog- nition of state policy similar to federal leniency policies
- noting that deportation laws would not be undermined by recognition of state policy similar to federal leniency poli- cies
Written by the judges who cited it.
The opinion
MANSFIELD, Circuit Judge
(concurring):
I concur in Judge Lumbard’s carefully considered opinion. I would only add that in my view, even if the term “convicted” as used in 8 U.S.C. § 1251 (a)(ll) were construed to embrace state judgments which are later expunged, the simultaneous issuance of the Certificate of Relief from Disabilities prevents the state court’s adjudication of guilt from amounting to a conviction. Thus, I believe that even under a “formalistic” construction of the statutes at issue, as distinguished from the liberal interpretation in favor of an alien which is mandated, Lennon v. I.N.S., 527 F.2d 187 (2d Cir. 1975), the order of deportation must be set aside.
In dealing with possession of a drug such as marijuana for personal use (as distinguished from sale), the New York Legislature had numerous alternatives open to it. *76 It could have chosen not to make the possession a crime at all, in which event the absence of any conviction would preclude the I.N.S. from invoking § 1251(a)(ll). Alternatively the Legislature could have provided civil NARA-type 1 relief only, which would not trigger the deportation statute. Taking a different course, the State might have made the conduct a crime and provided that a person found guilty would stand convicted, either unqualifiedly or subject to later expungement of the conviction if he successfully satisfied a period of probation. See, e. g., Kolios v. I.N.S., 532 F.2d 786 (1st Cir. 1976),- U.S. -, 97 S.Ct. 234 , 50 L.Ed.2d 165 (1976).
As one other alternative, the Legislature was entitled to provide that under certain circumstances the adjudication of guilty would not be given the effect of a “conviction.” This it chose to do by enacting New York Correction Law § 701(2), which provides that a “conviction of a crime or offense specified in a certificate of relief from disabilities shall not cause automatic forfeiture of any . . . right or privilege, held by the eligible offender and covered by the certificate” and goes on to state:
“Nor shall such conviction be deemed to be a conviction within the meaning of any provision of law that imposes, by reason of a conviction, a bar to any employment, a disability to exercise any right or a disability to apply for or to receive any license, permit or other authority or privilege, covered by the certificate.” (Emphasis added)
Since a Certificate of Relief from Disabilities was issued to Rehman simultaneously with the entry of judgment upon his guilty plea, the adjudication of guilt cannot “be deemed to be a conviction” for the purposes of the deportation statute. 2 The State Legislature clearly did not intend such an adjudication to have either the label or the effect of a “conviction,” nor is there any indication that Congress in enacting § 1251(a)(ll) intended the term “convicted” to be so all-embracing. Instead, the federal statute is simply keyed to unqualified convictions, state or federal. 3
The decisions in Kolios v. I. N. S., 532 F.2d 786 (1st Cir. 1976), petition for cert. filed, 44 U.S.L.W. 3724 (May 20, 1976); Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971); Cruz-Martinez v. I. N. S., 404 F.2d 1198 (9th Cir. 1968), cert. denied, 394 U.S. 955 , 89 S.Ct. 1291 , 22 L.Ed.2d 491 (1969), so heavily relied on by the government, are clearly distinguishable. In those cases there was a conviction which remained in full force and effect for a substantial period of time, subject to the possibility of expungement if the defendant should successfully serve a period of probation. Here, on the contrary, in view of the simultaneous issuance of the Certificate, the adjudication never had the effect of a conviction for certain purposes (including deportation) and there never was any revocation or modification of that Certificate. As a result Rehman never stood “convicted” in my view and hence may not be deported under § 1251(a)(ll). This interpretation of the term “convicted” as used in § 1251(a)(ll), moreover, is in keeping with Congress’ more recently enunciated policy of reducing hardships and sanctions imposed upon youthful offenders. See Mestre *77 Morera v. I. N. S., 462 F.2d 1030, 1032 (1st Cir. 1972).
. Under the provisions of the Narcotic Addict Rehabilitation Act of 1966, 28 U.S.C. § 2902 , a federal district court may hold in abeyance the prosecution of a criminal charge against a suspected drug addict if the suspected addict submits to an examination to determine whether he can be rehabilitated. Upon the successful completion of a program of treatment, the court is required to dismiss the charges.
. In effect the Legislature’s action was similar to that of Congress in enacting the Narcotic Addict Rehabilitation Act of 1966, which defines the terms “conviction” and “convicted” to exclude “a final judgment which has been expunged by pardon, reversed, set aside, or otherwise rendered nugatory” (emphasis added), 18 U.S.C. § 4251 (e), 28 U.S.C. § 2901 (f).
. Although Congress clearly has power to make an all-inclusive deportation statute, it has not done so. As was held in Holzapfel v. Wyrsch, 259 F.2d 890, 891 (3d Cir. 1958), “In deportation cases where a state crime is involved we have to look to the law and procedure of the state to interpret what happened in the state courts.”