Interim Decision #2252

Interim Decision #2252

MATTER OF CRUZADO

In Deportation Proceedings

A-13339859

Decided by Board December 18, 1973

(1) Respondent's conviction of attempt to possess drugs in violation of section 1427 of the Louisiana Statutes constitutes a basis for deportation under section

241(aX11) of the Immigration and Nationality Act, as amended, notwithstanding the conviction was set aside pursuant to Article 893 of the Louisiana Code

of Criminal Procedure, as amended. Matter of O'Sullivan, 10 I. & N. Dec. 320, is

distinguished, in that the setting aside of the conviction in the instant case

was pursuant to a statute providing an automatic award for good behavior,

and the conviction may be used as the basis for prosecution in the event of a

subsequent offense.

(2) While the admission into the record of statements by an individual judge and

a law professor as to the construction of the Louisiana Statutes in question

was improper, such statements were not prejudicial to the respondent since no

consideration was given to the statements by either the immigration judge or

the Board of Immigration Appeals in reaching their respective decisions.

CHARGE:

Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of

violation of any law relating to illicit possession of

marijuana.

ON BEHALF OF RESPONDENT:

David A. Kattan, Esquire

419 Gravier Street

New Orleans, Louisiana 70130

This is an appeal from an order of deportation entered by the

immigration judge on March 14, 1972. The appeal will be dismissed.

The record relates to a 35-year-old married male alien, a native

and citizen of Colombia, who entered the United States for

permanent residence on August 5, 1964. He was convicted of

attempt to possess drugs in violation of section 14-27 of the

Louisiana Statutes on September 9, 1968. On October 20, 1971,

pursuant to the provisions of Article 893 of the Code of Criminal

Procedure, as amended, of Louisiana, the court ordered that the

respondent's conviction be set aside, that the prosecution be

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dismissed and that the dismissal have the same effect as an

acquittal. Article 893 provides that:

When the imposition of sentence has been suspended by the court, as

authorized by this Article, and the court finds at the conclusion of the

probationary period that the probation of the defendant has been satisfactory,

the court may set the conviction aside and dismiss the prosecution and the

dismissal of the prosecution shall have the same effect as an acquittal, except

that said conviction may be considered as a first offense and provides the

basis for subsequent prosecution of the party as a multiple offender.

The respondent contends that the setting aside of his conviction

pursuant to Article 893 wipes out the basis for his deportability,

citing as precedent Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA

1963) in which we held that the setting aside of a narcotics

conviction removed the basis for deportability. The procedure

employed in Matter of O'Sullivan, supra, however, was not pursuant to a directive of state statute for all like cases. The trial

court granted a motion for a new trial after conviction and

sentence, then dismissed the charges upon the motion of the

assistant prosecuting attorney. The reasons for this action were

not shown in the record. In the case before us, the action by the

court setting aside the conviction was pursuant to a statute which

provided an automatic award for good behavior. The fact that the

conviction may be used to subject the party to subsequent prosecution as a multiple offender indicates that it does not in fart have

the same effect as an acquittal. It is analogous rather to the Texas

statute described in Gonzalez de Lara v. United States, 439 F.2d

1316 (C.A. 5, 1971).

The Texas statute provides for the setting aside of a verdict of

conviction after discharge from probation, except that the conviction shall be recorded if the person is convicted again of an offense.

The Court of Appeals for the Fifth Circuit held that while the

Texas statute rewarded the convicted party for good behavior

during probation, it did not completely erase the conviction. The

court reasoned that the manner in which a state chooses to

promote rehabilitation of convicted persons is not of controlling

importance in a deportation proceeding, which is a function of

federal law. This reasoning was consistent with the Attorney

General's, in Matter of

8 I. & N. Dec. 429 (A.G. 19 69),

wherein he held that deportability of aliens should not depend on

the vagaries of state law.

It is hardly to be supposed that Congress intended, in providing for the

deportation of aliens convicted of narcotic violations, to extend preferential

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.

The Attorney General's view has been sustained in numerous

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decisions, Garcia-Gonzales v. INS, 344 F.2d 804 (CA. 9, 1965); Kelly

v. INS, 349 F2d 473 (C.A. 9, 1965), cert. denied 382 U.S. 932 (1965);

Brownrigg v. INS, 356 F.2d 877 (C.A. 9, 1966); Gonzalez de Lara v.

United States, supra.

The respondent also objects to the admission into the record of

statements regarding construction of the Louisiana statute, which

were attributed to a judge of the Criminal District Court, Orleans

Parish, and to a professor of criminal law at a Louisiana law

school. At the time of the original decision of the immigration

judge, the order setting aside the respondent's conviction had not

yet been issued; the order was issued while the case was pending

on appeal before us. We remanded to give the immigration judge

an opportunity to consider the case in view of the new development, inasmuch as the issues presented to us were not present

below, primarily the respondent's contention that Matter of

O'Sullivan, supra, was applicable to him. During the course of the

reopened hearing, the trial attorney introduced into evidence an

investigative report (Ex. R-2), wherein the investigator reported

the results of his questioning of the judge and professor, mentioned above, as to their opinions of the proper construction of the

Louisiana statute in question. In our view, it was inappropriate to

admit these comments into evidence. Where construction of a state

statute is in issue, the views of individual judges, attorneys, or law

professors do not constitute the best evidence. See Huff v. United

States, 273 F2d 56 (C.A. 5, 1959) and 7 Wigmore on Evidence, § 1952

(3rd Ed. 1940). If there are no state court decisions construing the

statute, the legislative history of the enactment may be consulted.

See Sutherland Statutory Construction, § 45.05 (4th Ed. 1973).

The presence of the comments in the record, however, was not

prejudicial to the respondent. The immigration judge made no

reference to them in his decision, which is based entirely on the

federal authorities above cited. We have given the comments no

consideration in reaching our decision.

Accordingly, we hold that the respondent's Louisiana conviction

of a narcotics offense forms a basis for deportation, despite the fact

that the conviction has been set aside pursuant to the provisions

of Article 893 of the Louisiana Code of Criminal Procedure.

ORDER: The appeal is dismissed.

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