# Shaheen Rehman v. Immigration and Naturalization Service > Court of Appeals for the Second Circuit · October 14, 1976 · 544 F.2d 71 URL: https://www.frixlaw.com/law-library/cases/9463206 ## Case - **Full name:** Shaheen REHMAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent - **Court:** Court of Appeals for the Second Circuit - **Decided:** October 14, 1976 - **Citations:** 544 F.2d 71; 1976 U.S. App. LEXIS 6678 - **Precedential status:** Published - **Opinion:** Dissent by Mulligan - **Judges:** Lumbard, Mansfield, Mulligan - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463206 ## How later opinions describe it (automated extraction) - 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 … - 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 ## Opinion text MULLIGAN, Circuit Judge (dissenting): Shaheen Reliman, an alien admitted as a non-immigrant student authorized to remain in the United States with that status only until May 31,1975, pleaded guilty and was convicted of the illegal possession of marijuana in the Supreme Court of the State of New York on March 29, 1974. His deportation has been ordered by an Immigration Judge and on review that determination has been affirmed by the Board of Immigration Appeals. In view of the plain and unambiguous language of 8 U.S.C. § 1251 (a)(ll) 1 the Board had no other choice; petitioner’s deportation is mandated by the statute and the majority decision here reversing the Board is indefensible and compels dissent. There can be no question that Rehman’s state conviction still stands. In Da Grossa v. Goodman, 72 Misc.2d 806 , 339 N.Y.S.2d 502, 505 (Sup.Ct.1972), the court specifically said, “The granting of a certificate of relief from disabilities in no way eradicates or expunges the underlying conviction.” Thus it is clear that the “Certificate of Relief from Disabilities” provided by the New York Correction Law § 700 et seq. and set forth in footnote 1 of the majority opinion does not purport to expunge his conviction, but simply to relieve him of certain disabilities flowing therefrom. By some process of reasoning which I fail to understand, the majority finds that, “it seems clear to us that the New York legislature could not have intended that recipients of § 701 certificates would remain subject to mandatory deportation.” We are obviously bound by the New York State Courts’ construction of a New York statute. In Da Grossa v. Goodman, supra, the court announced, “Those disabilities which are relieved upon the granting of the certificate are disabilities imposed upon New York citizens by the action of specific New York Statutes.” 2 (emphasis supplied). The majority statement that deportation is “contrary to the purposes of New York law” is erroneous and irrelevant. Aside from the construction of the statute by the New York court, it seems basic that a state legislature has no power or authority to determine conditions or terms of deportation. It is the Congress which has plenary power to determine the eligibility of the alien to enter and to remain in the United States. Kleindienst v. Mandel, 408 U.S. 753, 766-67 , 92 S.Ct. 2576 , 33 L.Ed.2d 683 (1972); Galvan v. Press, 347 U.S. 522, 531 , 74 S.Ct. 737 , 98 L.Ed. 911 (1954). The Congress has spoken in unequivocal language in section 1251(a)(ll) and the intent of the New York State Legislature is totally irrelevant. In any event, the State, as we have indicated, only intended to relieve the disabilities which its law had imposed and was as powerless to legislate in the field of immigration as it *78 would be to repeal the law of the Medes and the Persians. Every federal court which has encoun- ■ tered the question of the effect of a state expungement statute upon the deportation of an alien convicted of a drug offense in a state court has held that the state conviction per se triggers 8 U.S.C. § 1251 (a)(ll) and that the state’s subsequent treatment of the offender is inconsequential. Kolios v. INS, 532 F.2d 786 (1st Cir. 1976), cert. denied - U.S. -, 97 S.Ct. 234 , 50 L.Ed.2d 165 (1976); Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971); Tsimbidy-Rochu v. INS, 414 F.2d 797 (9th Cir. 1969); Cruz-Martinez v. INS, 404 F.2d 1198 (9th Cir. 1968), cert. denied, 394 U.S. 955 , 89 S.Ct. 1291 , 22 L.Ed.2d 491 (1969); Garcia-Gonzales v. INS, 344 F.2d 804 (9th Cir.), cert. denied, 382 U.S. 840 , 86 S.Ct. 88 , 15 L.Ed.2d 81 (1965). See also Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert. denied, 423 U.S. 1050 , 96 S.Ct. 776 , 46 L.Ed.2d 638 (1976); Will v. INS, 447 F.2d 529, 531 (7th Cir. 1971). 3 As the court in Cruz-Martinez v. INS, supra, 404 F.2d at 1200 , stated: 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 that conviction, that is crucial. The real issue, therefore, is the intent of Congress and not the intent of the New York Legislature. The language of section 1251(a)(ll) is clear — the alien convicted of a violation of any law relating to the illicit possession of marijuana shall, upon the order of the Attorney General, be deported. In both Kolios v. INS, supra, and Tsimbidy-Rochu v. INS, supra, other circuits have upheld deportation orders even where state law expunged the prior state convictions. The New York statute does not erase the conviction but only state imposed disabilities flowing from that conviction. A fortiori, the ratio decidendi of these opinions is compelling here. The majority argues that with respect to section 1251(a)(ll) a “less formalistic approach is appropriate and more consistent with Congressional intent.” However, earlier in its opinion the majority noted that “Congress has exhibited a strict attitude regarding deportation of convicted drug criminals.” This Circuit has explicitly recognized the stringent congressional policy set forth in section 1251(a)(ll). In Bronsztejn v. INS, 526 F.2d 1290 (2d Cir. 1975), we held that an alien convicted in a New York State court of an attempt to possess mari *79 juana was nonetheless deportable because of the strict congressional policy in this area. That policy was recently recognized again by this Circuit in Guan Chow Tok v. INS, 538 F.2d 36, 38 (2d Cir. 1976) where we stated, “Congress’ decision to mandate the deportation of narcotics offenders is not without rational justification; accordingly, while we may be concerned at the hardship it imposes on the minor offender, we must .nevertheless follow its strictures.” The attitude of Congress toward the drug offender is evident when we consider that if Rehman had been convicted of a crime involving moral turpitude, under section 1251(b) a full and unconditional pardon by the President of the United States or by a state governor, or a recommendation by the sentencing court to the Attorney General that the alien not be deported would have shielded him from deportation. However, as the majority itself points out, section 1251(b) specifically provides that executive pardons or judicial recommendations have no effect in the case of an alien convicted of a drug offense. As the First Circuit observed in Kolios v. INS, supra, 532 F.2d at 790 , “It seems highly unlikely to us that Congress, which has narrowly confined the scope of expungement of conviction in federal drug cases, would contemplate that state expungement statutes of general applicability could insulate any narcotics offender from the sanction of deportation.” The majority argument therefore that the congressional intent is somehow benevolent in these cases is, in my view, not supported by authority and in fact is contrary to the plain language of the statute. The majority points out that if Rehman had been tried in a federal court on federal drug charges, he most likely would not be deportable since he might be given probation without a conviction or he might be given young offender treatment which permits expungement of the conviction. Of course, Rehman was convicted in a state court and speculation as to what his fate would be in a federal case hardly illumines the congressional intent expressed in section 1251(a)(ll). There is authority for the position that an alien sentenced under the Youth Correction Act, which permits ex-pungement of his federal conviction, is not deportable. The First Circuit so held in Mestre Morera v. INS, 462 F.2d 1030 (1st Cir. 1972), stressing, however, that the congressional intention under the Youth Correction Act was to relieve the youth not only of the usual disabilities of a criminal conviction, but to completely expunge the record of conviction. The New York statute does not relieve all disabilities and does not expunge the conviction. Moreover, the same First Circuit subsequently rejected the argument now made by the majority here, when it denied a petition to review a Board decision deporting an alien convicted in a Texas court, even though the alien had fulfilled the conditions of his parole and his conviction had been set aside by the state court. Kolios v. INS, supra, 532 F.2d at 789 . The majority urges that its construction will lead to a more uniform application of federal law. On the contrary, the deportation of the alien drug offender will depend upon whether the convicting state provides for an expungement procedure. This hardly leads to consistent or uniform treatment but, as the Attorney General noted in Matter of A_F_, 8 I. & N. Dec. 429, 446 (1959), would make the deportation of the alien depend upon the vagaries of state law. It has been said that only in California and a few other States is provision made for the cancellation of a record of conviction or for the withdrawal of a plea of guilty, upon the termination of probation. Probation and Related Measures (U.N. Publication No. 1951, IV, 2) 106. And § 1203.4 of the California Penal Code (and presumably § 1772 of the California Welfare and Institutions Code) has been characterized as “without parallel in the legislation of any other state” in providing for a release of the probationer from all penalties and disabilities resulting from conviction. 2 Stan. Law Rev. 221, 222 (1949). It is hardly to be supposed that Congress intended, in providing for the deportation of aliens convicted of narcotic violations, to extend preferential *80 treatment to those convicted in the few jurisdictions, which, like California, provide for the expungement of a record of conviction upon the termination of probation. Since the majority here stresses that Reliman is a graduate student with good character references and that his crime was “seventh degree” possession, New York’s lowest grade of drug offense, it is obviously concerned about the harshness of the penalty of deportation meted out for the possession of hashish, an activity which some in the community believe should not constitute criminal behavior. However, that is a judgment properly to be made by the New York State Legislature and the Congress of the United States and not the federal judiciary. While recognizing that deportation is a drastic penalty and that the statute must be strictly construed, Fong Haw Tan v. Phelan, 333 U.S. 6, 10 , 68 S.Ct. 374 , 92 L.Ed. 433 (1948), this court in Bronsztejn v. INS, supra, 526 F.2d at 1291 , noted, “[T]his Court has no authority to prevent deportation because of changing social mores regarding marijuana.” In the guise of statutory interpretation, I believe the majority opinion here has contorted the plain and unambiguous terms of the congressional enactment to achieve what it deems a socially desirable result. However, “For purposes of judicial enforcement, the ‘policy’ of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out of the air.” D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 121-22 , 66 S.Ct. 925, 931 , 90 L.Ed. 1114 (1946) (Frankfurter, J., dissenting.) In sum, the majority has ignored our own previous holdings that section 1251(a)(ll) be strictly construed, as well as the uniform holdings of other circuits which have upheld deportation orders in comparable cases. The congressional intent is made clear from the statute and the cases in this and other circuits construing it. For seventeen years this consistent judicial interpretation has not been disturbed by the Congress. For the reasons given, I believe the position adopted by the majority here is not an interpretation of the congressional policy but, rather, its rejection. . That statute provides in part: (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who— (11) . . . at any time has been convicted of a violation of . . . any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana 8 U.S.C. § 1251 (a)(ll). . In Matter of Sugarman, 51 A.D.2d 170 , 380 N.Y.S.2d 12 (1st Dep’t 1976), the court held that an attorney convicted of a felony would not be re-admitted to the bar upon receipt of a certificate of disability. In so holding, the court noted, “that even the certificate of relief from disabilities is not a complete relief from disabilities. The statute itself contemplates certain rights which the certificate cannot restore, such as the right to hold public office.” Id. at 14. See also In re Arroya, 50 A.D.2d 752 , 376 N.Y.S.2d 158 (1st Dep’t 1975). Judge Lumbard’s opinion points out that in Sugarman the certificate there was issued by an administrative agency, the Parole Board, rather than a judge. However, the certificate is the same whether issued by either. Correction Law §§ 701-03; see Governor’s Memorandum Approval of L.1966, c. 654 in McKinney’s 1966 Sessions Laws New York at 3003. While the defendant was convicted of a felony in Sugar-man there is nothing in that opinion or in the New York Statute to suggest any difference between the conviction for a felony or a lesser offense so long as the defendant is a first offender. . Judge Mansfield argues that these cases are inapposite because there was a state conviction in full force and effect for a substantial time while here the Certificate of Relief from Disabilities was issued simultaneously so that the adjudication never had the effect of a conviction for certain purposes including deportation. I do not understand how the issuance of the temporary certificate here transmogrifies Rehman’s conviction into a non-conviction. Reliman pleaded guilty and he could not be sentenced even to a conditional discharge if he had not been convicted. New York Correction Law § 702(4) explicitly provides that when a certificate is awarded prior to the completion of the term for a suspended sentence, it shall be temporary and subject to revocation. Here the temporary certificate of March 29, 1974 would not become permanent until March 29, 1975 and his deportation was ordered on March 11, 1975. To permit deportation where permanent state relief from state convictions is predicated upon completion of a probationary period, Kolios, supra, and Cruz-Martinez, supra, but to deny it when the state court has granted the alien only conditional relief during the probationary period, is not logical. Those cases are distinguishable as Judge Mansfield states, but the distinction compels deportation here rather than the contrary. § 701(2) which provides that such conviction shall not be deemed a conviction of course is limited to those disabilities “covered by the certificate.” As has been pointed out, that coverage can only be for those disabilities imposed by New York statutes, Da Grossa v. Goodman, supra, and deportation has not yet become the business of the State Legislature. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463206. Public record. Not legal advice.