Interim Decision #3044

Interim Decision #3044

MAi OF OZKOK

In Deportation Proceedings

A-12150228

Decided by Board April 26, 1988

(1) A conviction exists for immigration purposes where an alien has had a formal

judgment of guilt entered by a court or, if adjudication of guilt has been withheld,

where all of the following elements are present: (1) a judge or jury has found the

alien guilty or he has entered a plea of guilty or nolo contendere or has admitted

sufficient facts to warrant a finding of guilty, (2) the judge has ordered some form

Of punishment, penalty, or restraint un the peraon'a liberty to be imposed, and (3)

a judgment or adjudication of guilt may be entered if the person violates the

terms of his probation or fails to comply with the requirements of the court's

order, without availability of further proceedings regarding his guilt or innocence

of the origiast charge. Matter of Garda, 19 I&N Dec. 270 031A 1985); Matter of

Zangwill, 18 I&N Dec. 22 (BIA 1981); Matter of Seda, 17 I&N Dec. 550 BIA 1980);

Matter of Robinson, 16 I&N Dec. 762 (BIA 1979); Matter of Varagianis, 16 I&N

Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 I&N Dec. 401 (131A 1963); and Matter

of L-R-, 8 I&N Dec. 269 BIA 1959), overruled in part.

(2) A conviction for a crime involving moral turpitude may not support an order of

deportation if it has been expunged. Matter of Gutnick, 13 I&N Dec. 672 BIA

1971); Matte:- of Tharra-Obanda, 12 I&N Dec. 576 BIA 1966; A.G. 1967); Matter of

G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961), followed.

(3) A conviction for a narcotics or marihuana violation is final regardless of the possibility of expunction. Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959), followed.

(4) The respondent, whose adjudication of guilt was stayed and whose proceedings

were deferred after his plea of guilty to possession of cocaine and who was ordered to complete 3 years of probation and 100 hours of volunteer community

service pursuant to a state statute which allowed the court to enter judgment and

proceed with disposition of the person upon violation of probation as if probation

had not been ordered, has a final conviction sufficient to support an order of deportation under section 241(aX11) of the Immigration and Nationality Act, 8

U.S.C. § 1251(a)(11) (1982).

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CHARGE:

Orden Act of 1952—Sec. 241(aX11) [8 U.S.C. § 1251(aX11)]—Convicted of narcotics

violation

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

David M. Dixon

Appellate Counsel

Konstantine J. Frevas, Esquire

Suite 950—Ninth Floor

5 Light Street

Baltimore, Maryland 21202

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated September 13, 1985, the immigration judge

found the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1982), as an

alien convicted of a narcotics violation, and ordered him deported

from the United States. On October 18, 1985, the immigration

judge certified

pri his decision for our review.' The respondent has

also filed a motion to vacate the order of deportation and terminate

proceedings. The decision of the immigration judge will be affirmed

in part. The record will be remanded for further proceedings. 2

The respondent is a 32-year-old native and citizen of Turkey who

was admitted to the United States as a lawful permanent resident

on October 9, 1967. The record reflects that he pleaded guilty on

August 20, 1981, to unlawful possession with intent to distribute cocaine in the Circuit Court for Baltimore County, Maryland. On October 23, 1981, the court stayed judgment and placed the respondent on probation for 3 years pursuant to the provisions of Article

27, section 641 of the Annotated Code of Maryland. 3 The judge furSubsequent to the issuance of the immigration judge's decision and his certification thereof to the Board, the respondent requested that the immigration judge

render a supplemental order in view of the fact that an application for a waiver of

inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1982), which had

been filed on November 17, 1983, was still pending. On October 31, 1985, the immigration judge issued a supplemental order vacating the order of deportation subject

to the presentation of the respondent's waiver request. That order has also been certified to the Board. Inasmuch as the immigration judge no longer retained jurisdiction over the case following his certification of the order of deportation dated September 13, 1985, his supplemental order is of no effect. However, in view of our decision to remand the record for consideration of the respondent's waiver application,

the issue is moot.

2 This decision was originally entered on January 26, 1988. We have reopened the

proceedings on our own motion in order to vacate that decision, withdraw it from

publication, and substitute the following decision.

3 The statute in effect at that time provided in pertinent part:

Continued

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Interim Decision #3044

ther ordered the respondent to perform 100 hours of volunteer community service and to pay a fine of $1,500 plus court costs.

On October 8, 1982, the Immigration and Naturalization Service

issued an Order to Show Cause and Notice of Hearing (Form I-221)

charging the respondent with deportability under section 241(a)(11)

of the Act. The record reflects that the respondent denied deportability and sought termination of the proceedings on the ground

that the action of the criminal court did not constitute a conviction

for immigration purposes under the standards set forth by the

Board. The Service opposed termination, arguing that a conviction

existed. After a thorough analysis of the Maryland statute and

Board precedent decisions, the immigration judge determined that

the action of the criminal court would support a finding of deportability under section 241(a)(11) of the Act. We agree with his con-

clusion, although for different reasons.

The question of what state action constitutes a conviction with

sufficient finality for purposes of the immigration laws is one with

(a) Probation after plea or finding of guilt; power of court to provide terms and

conditions; waiver of right to appeal from judgment of guilt.—(1Xi) Whenever a

person accused of a crime pleads guilty or nolo contendere or is found guilty of an

offense, a court exercising criminal jurisdiction, if satisfied that the best interests

of the person and the welfare of the people of the State would be served thereby,

and with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further

proceedings, and place the person on probation subject to reasonable terms and

conditions as appropriate. The terms and conditions may include ordering the

person to pay a fine or pecuniary penalty to the state, or to make restitution, but

before the court orders a fine, pecuniary penalty, or restitution the person is entitled to notice and a hearing to determine the amount of the fine, pecuniary penalty, or restitution, what payment will be required, and how payment will be made.

The terms and conditions also may include any type of rehabilitation program or

clinic, or similar program, or the parks program or voluntary hospital program.

(2) By consenting to and receiving a stay of entering of the judgment as provided by this subsection, the person waives the right to appeal from the judgment of

guilt by the court at any time. Prior to the person consenting to the stay of entering of the judgment, the court shall notify the person that by consenting to and

receiving a stay of entry of judgment, he waives the right to appeal from the judgment of guilt by the court at any time_

(b) Violation of probation.—Upon violation of a term or condition of probation,

the court may enter judgment and proceed with disposition of the person as if the

person had not been placed on probation.

(c) Fulfillment of terms of probation--Upon fulfillment of the terms and conditions of probation, the court shall discharge the person from probation. The discharge is final disposition of the matter. Discharge of a person under this section

shall be without judgment of conviction and is not a conviction for purposes of

any disqualification or disability imposed by law because of conviction of crime.

Md. Ann. Code art. 27, § 641 (1982).

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which the Board has wrestled for many years. As early as 1942, we

considered the effect of a state expunction statute on the status of

a conviction for immigration purposes. Matter of F-, 1 I&N Dec.

343 (BIA 1942). In 1955 the United States Supreme Court addressed

the conviction issue in a. per curiam decision, stating only that the

alien's conviction under a Massachusetts procedure, which permitted the sentence to be revoked and the case to be put "on file," had

not "attained such finality as to support an order of deportation."

Pino v. Landon, 349 U.S. 901 (1955). Recognizing the need for a federal standard for a final conviction, the Board analyzed the possible courses of action by a court that could result in a conviction in

Matter of 0-, 7 I&N Dec. 539 (BIA 1957). We concluded there that a

final conviction existed where, after a finding of guilt was made, a

fine or sentence to imprisonment was imposed or either the execution or imposition of a sentence was suspended. We also found that

if the court postponed further consideration of the case so that it

was still pending for imposition of some sentence, an examination

under Pino would be necessary to determine if the conviction had

achieved sufficient finality to support a deportation order.

A few years later the Board enunciated the three-pronged test

which has been the standard we have applied since then to determine whether a conviction exists for immigration purposes. Matter

of L-R-, 8 I&N Dec. 269 031A 1959). 4 During this same period, the

Attorney General also examined the effect of expunction procedures on convictions for narcotics offenses, concluding that Congress did not intend for a narcotics violator to escape deportation

as a result of a technical erasure of his conviction by a state.

Matter of A-F-, 8 I&N Dec. 429 (MA, A.G. 1959). In so finding, the

Attorney General noted the federal policy to treat narcotics offenses seriously and determined that it would be inappropriate for

an alien's deportability for criminal activity to be dependent upon

"the vagaries of state law." Id. at 446. He further pointed out that

in 1959, when his decision was rendered, only a few states had expunction procedures, concluding that it was unfair to give preferen4 According to our definition as set forth in Matter of L-R-, supra,

a conviction

exists for immigration purposes where all of the following elements are present:

(1) there has been a judicial finding of guilt;

(2) the court takes action which removes the case from the category of those

which are (actually, or in theory) pending for consideration by the court—the

court orders the defendant fined, or incarcerated or the court suspends sentence,

or the court suspends the imposition of sentence;

(3) the action of the court is considered a conviction by the state for at least some

purpose.

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Interim Decision #3044

tial treatment to only a few aliens who were convicted in those jurisdictions. 5

It is apparent from a review of our decisions published since the

Attorney General's opinion in Matter of A-F-, supra, that most

states now employ some method of ameliorating the consequences

of a conviction. See also Dickerson v. New Banner Institute, Inc.,

460 U.S. 103, 121 (1983). The procedures vary from state to state

and include provisions for annulling or setting aside the conviction,

permitting withdrawal of the plea, sealing the records after completion of a sentence or probation, and deferring adjudication of

guilt with dismissal of proceedings following a probationary period.

See e.g., Matter of Garcia, 19 I&N Dec. 270 (BLA. 1985) (Texas);

Matter of Carrillo, 19 I&N Dec. 77 (BIA 1984) (Texas), Matter of

Forstner, 18 I&N Dec. 374 (BIA 1983) (Oregon); Matter of Golshan,

18 I&N Dec. 92 BIA 1981) (Washington); Matter of Zangwill, 18

I&N Dec. 22 (BIA 1981) (Florida); Matter of Seda, 17 I&N Dec. 550

031A 1980) (Georgia); Matter of Varagianis, 16 I&N Dec. 48 BIA

1976) (New Hampshire); Matter of Tstmbicly -Rochtt, 13 I&N Dec. 56

(131A 1968) (Nevada). Many states have more than one ameliorative

provision, some applying only to youthful or first offenders, and

others being available to the convicted population at large. See, e g.,

Matter of Kaneda, 16 I&N Dec. 677 (BIA 1979) (Virginia); Matter of

Haddad, 16 I&N Dec. 253 BIA 1977) (Michigan); Matter of Werk, 16

I&N Dec. 234 (BIA 1977) (Wisconsin); Matter of Moeller, 16 I&N

Dec. 65 (BIA 1976) (California); Matter of Lima, 15 I&N Dec. 661

BIA 1976) (California); Matter of Andrade, 14 I&N Dec. 651 BIA

1974) (California).

In keeping with the opinions of the Supreme Court and the Attorney General, the Board has attempted over the years to reconcile its definition of a final conviction with the evolving criminal

procedures created by the various states. Having reviewed our decisions in this regard, we must acknowledge that the standard which

we have applied to the many variations in state procedure may

permit anomalous and unfair results in determining which aliens

are considered convicted for immigration purposes. For example,

alien A, who has been found guilty of a narcotics violation by a

jury or judge, but against whom no formal judgment has been entered by the judge, and who was placed on probation, fined, and

even incarcerated as a special condition of probation, but who has

A few years later, however, the Attorney General approved the Board'a "longstanding rule" that a conviction for a crime involving moral turpitude that had

been expunged would not support a fading of deportability under section 241(aX4)

of the Act. Matter of 0-, 9 I&N Dec. 159,169 (BIA 1960; A.G. 1961).

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no right to appeal and is subject to automatic entry of a judgment

upon violation of probation, would not be considered "convicted"

under our three-pronged test because there has been no judicial adjudication of guilt. On the other hand, we would find a conviction

in the case of alien B, who pleaded nolo contendere to the same

charge and against whom a formal judgment was entered by the

court, but whose sentence was deferred with no other penalty imposed, so long as the state also considered him convicted for some

purpose.

We find no rational or legal reason for according these two aliens

different immigration status based on the criminal procedures of

the states where they committed a crime. Under the approach we

have taken in the past, form has been placed over substance, and

aliens who are clearly guilty of criminal behavior and whom Congress intended to be considered "convicted" have been permitted to

escape the immigration consequences normally attendant upon a

conviction. We therefore find that a revision of our standard for a

final conviction has become necessary.

As in the past, we shall consider a person convicted if the court

has adjudicated him guilty or has entered a formal judgment of

guilt. Since such a judicial action is generally deemed a final conviction in both federal and state jurisdictions, it will be sufficient to

constitute a conviction for immigration purposes without consideration of the other two factors of our former test. 6 See generally

Dickerson v. New Banner Institute, Inc., supra, at 112-13 & nn. 6-7.

Where adjudication of guilt has been withheld, however, further

examination of the specific procedure used and the state authority

under which the court acted will be necessary. As a general rule, a

conviction will be found for immigration purposes where all of the

following elements are present:

(1)a judge or jury has found the alien guilty or he has entered a plea of guilty

or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;

(2)the judge has ordered some form of punishment, penalty, or restraint on the

person's liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation

program., a work-release or study-release program, revocation or suspension of a

driver's license, deprivation of nonessential activities or privileges, or community

service); and

The third prong of the standard set forth in Matter of L-R-, supra, required

We note, however, in

regard to our current change, a long-standing rule that whether a conviction exists

for purposes of a federal statute is a question of federal law and should not depend

on the vagaries of state law. Dickerson v. New Banner Institute, Inc., supra, at 1116

that the state also consider the court action a conviction_

12, 117; Matter of A-F-, supra.

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(3) a judgment or adjudication of guilt may be entered if the person violates the

terms of his probation or fails to comply with the requirements of the court's

order, without availability of further proceedings regarding the person's guilt or

innocence of the original charge.'

We are aware that this standard represents a significant departure from many of our previous decisions. For this reason it is nec-

essary to overrule the following cases to the extent they relied on

our former test for conviction and are inconsistent with the standard enunciated by the Board today: Matter of Garcia, supra; Matter

of Zangwill, supra; Matter of Seda, supra; Matter of Robinson, 16

I&N Dec. 762 (BIA 1979); Matter of Varagianis, supra; Matter of

Pikkarainen,, 10 I&N Dec. 401 (BIA 1963); and Matter of L-R-,

supra.

We note that a conviction for a crime involving moral turpitude

may not support an order of deportation if it has been expunged.

We shall continue in this regard to follow the rule which was set

forth by the Attorney General in Matter of G-, supra, and subsequently reaffirmed in Matter of Ibarra-Obando, 12 I&N Dec. 576

(BIA 1966; A.G. 1967), and Matter of Gutnick, 13 I&N Dec. 672 (BIA

1971). Furthermore, it is the policy of the Service to defer institution of deportation proceedings until an alien who is eligible to

have his conviction for a crime involving moral turpitude expunged

has had a reasonable opportunity to apply for expunction. Matter

of Tinajero, 17 I&N Dec. 424 (BIA 1980); Immigration and Naturalization Service Operations Instructions 242.1(a)(29). However, pursuant to the Attorney General's determination in Matter of A-F-,

supra, a conviction for a narcotics or marihuana violation is final

regardless of the possibility of expunction.

Applying our new standard to the respondent's case, we look first

to the record of conviction, which indicates that the respondent

pleaded guilty to unlawful possession of cocaine in sufficient quantity to reasonably indicate an intent to distribute the drug. It further reflects that the judge stayed entry of the judgment pursuant

to Article 27, section 641 of the Annotated Code of Maryland and

placed the respondent on probation for 3 years. In addition, he ordered the respondent to donate 100 hours of volunteer community

7 It is well established that a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has

been exhausted or waived. Marino v. INS, 537 F.2d 686 (2d Cir. 1976); 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). We note in this regard that; although it is unclear

from the facts stated in Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), whether Pine's

conviction continued to be appealable after his case was placed "on file," the United

States Court of Appeals for the First Circuit assumed that his right to appeal had

been retained.

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service and to pay a $1,500 fine plus court costs. Since the respondent entered a plea of guilty and the judge imposed several forms of

punishment, the first two parts of our test for a conviction have

been met.

We must next examine the statutory authority under which the

judge acted to determine whether the third element is satisfied. According to subsection (To) of section 641, the court may enter judgment and proceed with disposition of the person upon violation of

probation as if the person had not been placed on probation. It is

clear from the statute that, if a violation of probation occurs, judgment may be automatically entered without further review of the

question of guilt. This third requirement of our test having been

met, we conclude that. the respondent's conviction is sufficiently

final to support an order of deportation. Accordingly, we shall

affirm the September 13, 1985, decision of the immigration judge to

the extent that the respondent was found deportable on the basis

of his conviction. However, inasmuch as the respondent had an application for section 212(c) relief pending at the time of the immi-

gration judge's decision, we find that a remand of the record for

consideration of his waiver request is appropriate.

ORDER: The September 13, 1985, decision of the immigration

judge is affirmed in part.

FURTHER ORDER: The record is remanded to the immigration judge for consideration of the respondent's application for section 212(c) relief and the entry of a new decision.