In DEPORTATION Proceedings

ATATTEn or A

F

In DEPORTATION Proceedings

A-2904545

Board Decision of September 1, 1959

Decided by Attorney General October 12, 1959

Deportability—Narcotics offenses, section 241(a)(11) of 1952 act—Finality of

conviction—Effect of State expungement law.

(1)

Judgment of State rnurr, after finding of guilt, that prnenerlinge he sus-

pended and probation granted upon condition that defendant serve one year

in the county jail constitutes a "conviction" within the meaning of section

241(a) (11) of the 1952 act.

(2) Finding of deportability under section 241(a) (11) of the 1952 act based

upon conviction of State narcotics offense is not affected by a technical

"expungement" or erasure of conviction record, as authorized by some State

statutes, upon fulfillment of conditions of probation, such as section 12(13.4

of the California Penal Code or eeetion 1772 of the Welfare and InEtitutiong

Code. (Overrules Matter of D

, 7 I. & N. Dec. 670.)

CHARGE:

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

of narcotic violation.

BEFORE THE BOARD

(September 1, 1959)

Discussion: On September 14, 1956, we dismissed an appeal from

a decision of a special inquiry officer directing the respondent's deportation. Thereafter, a suit was instituted for judicial review of

the order of deportation which resulted in decisions adverse to the

respondent in the United States District Court for the Southern

District of California (Central Division) and in the United States

Court of Appeals for the Ninth Circuit (Arrellano-Flores v. Hoy,

262 F.2d 667 (1958)). Counsel then filed a petition for certiorari

in the Supreme Court of the United Stoles which is new pending.*

On May 6, 1959, he filed a motion addressed to this Board seeking

reconsideration of our decision of September 14, 1956. In our order

of June 24, 1959, we denied this motion and affirmed our previous

order. On July 14, 1959, the Service requested that the case be

*Cert. den. 362 U.S. 921 (1960).

429

referred to the Attorney General for review of the Board's decision

pursuant to 8 CFR 3.1(h) (1) (iii).

The respondent is a 55-year-old married male, native and citizen

of Mexico, who last. entered the United States about June 13, 1954,

as a returning resident. He has resided in the United States since

1995 when he was admitted for permanent residence. On March 9,

1956, a judge of the Superior Court of California found the re-

spondent guilty of a violation of section 11500 of the Health and

Safety Code of that State in that he did "sell, furnish and give

away flowering tops and leaves of Indian Hemp" also known as

cannabis sativa or marihuana. On April 6, 1956, the court directed

that proceedings be suspended and that probation be granted for

five years, one of the conditions of probation being that the respondent serve one year in the county jail. It was on the basis of this

conviction that the special inquiry officer and this Board held that

the respondent was deportable under 8 U.S.C. 1251(a) (11).

The respondent's counsel stated in his motion of May 6, 1959, that

i t was predicated on Matter of D , 7 I. & N. Dec. 670, formerly

Int. Dec. No. 916, decided March 6, 1958. His position was, in

effect, that Matter of D— required termination of this deportation

proceeding, .and he also contended that there had been no final

judgment of conviction in the respondent's case. In our decision of

June 24, 1959, we explained why the facts in Matter of D , supra,

were not analogous to those relating to the respondent, and we

affirmed our previous order in which we had held this respondent

deportable. The sole contention raised in the Service motion of

July 14, 1959, is that there is a conflict between the decision in the

respondent's case and the decision in Matter of D „supra. While

not specifically stated in the motion of July 14, 1959, it is apparent

that the Service agrees with our decision that this respondent is

deportable and agrees with the statements which we made in our

order of June 24, 1959, that there was a final judgment of conviction in the respondent's case. The motion contains the statement

that it is the view of the Service that Matter of D , supra, erroneously states the law, and the Service obviously urges the overruling of that decision.

Matter of D

supra, involved an alien who was approximately

17 years old at the time of his conviction, and he was treated as a

youthful offender. About one year after the conviction, and pursuant to section 1772 of the Welfare and Institutions Code of California, the court entered an order setting aside the alien's plea of

guilty and dismissing the information. We did not, as asserted by

the Service in its motion, state in our previous order that the conviction was expunged under section 1203.4 of the California Penal

Code. We did state that, although the present respondent was 51

430

years old \\hen the narcotic violation was committed, we did n o t

regard this factor as distinguishing the case from Matter of D

because of the possibility that this respondent might at some future

date have his conviction set aside, under section 1203.4 of the California Penal Code. Section 177'2 of the Welfare and Institutions

Code and section 1203.4 of the California Penal Code were quoted

in footnotes 1 and 2 of the cieciEion in 51.I atto of D

. They are

substantially similar in their provisions that, under specified conditions, the court may set aside the verdict of guilty and dismiss the

accusation or information. Section 1772 is limited to youthful offenders. Since only section 1203.4 would have any relevance in this

respondent's case, we will discuss the question under that statutory

provision although our statements would be equally applicable to

section 1772.

Section 1203.4 of the California Penal Code provides, in part, as

follows:

Every defendant who has fulfilled the conditions of his probation for the

entire period thereof, or who shall have been discharged from probation prior

to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not

guilty; or if he has been convicted after a plea of not guilty, the court shall

set aside the verdict of guilty; and in either case the court shall thereupon

dismiss the accusations or information against such defendant, who shall

thereafter be released from all penalties and disabilities resulting from the

offense or crime of which he has been convicted. * * * provided, that in any

subsequent prosecution of such defendant for any other offense, such prior

conviction may be pleaded and proved and shall have the same effect as if

probation had not been granted or the accusation or information dismissed.

The proposition urged by the Service in its motion of July 14,

1959, is that an alien convicted of a crime which rendered him deportable continues to be deportable on the basis of that conviction

even after the court has set aside the conviction under section 1203.4

of the California Penal Code. While the motion discusses only this

statutory provision of California, acceptance of the proposition advanced by the Service would logically require a conclusion that the

setting aside of a conviction, in accordance with similar statutory

provisions of other States, likewise would be ineffective to prevent

deporlzt . tion.

Matter of 13—, 5 I. & N. Dec. 392 (1953), involved the question

of whether there had been a conviction for immigration purposes

under the following circumstances. The alien, in a. Massachusetts

criminal proceeding, had been sentenced to imprisonment for one

year and the sentence was suspended. After the expiration of one

year the sentence was revoked and the case was placed "on file."

We held that there was a conviction rendering him deportable. The

lower courts agreed that this alien was deportable but the Supreme

Court reversed, stating that it was unable to say that the conviction

431

had attained such finality as to support an order of deportation

Wino v. Landon, 349 U.S. 901 (19:55)). Thereafter, we held in another Massachusetts case that the conviction was insufficient for

deportation purposes where, after completion of probation, the sentence was revoked and the complaint was dismissed (Hatter of

G

, 7 I. & N. Dec. 171 (1956)).

In a case where the conviction is expunged under section 1203.4

of the California Penal Code, the plea of guilty is withdrawn or

the verdict of guilty is set aside and thereupon the accusation or

information against the defendant is dismissed. If the Supreme

Court was unable to find finality of conviction in Pine v. Landon,

supra, where only the sentence was revoked, we do not understand

how the Service can maintain that there is finality of conviction in

a case under section 1203.4 where the verdict of guilty is set aside

and the accusation is dismissed. In such a case, not only is there no

finality of conviction, but there is in contemplation of law no conviction whatever.

In re Ringnalda, 48 F. Supp. 975 (S.D. Cal., 1943), related to the

question of whether an alien was qualified for naturalization, and

the particular point discussed was the effect of the expungement of

a conviction under section 1203.4 of the California Penal Code. It

was stated (p. 976) that, through these proceedings, the defendant

stands cleared of guilt, and the court cited with approval a California decision which had held that the intention of the legislature

was to wipe out absolutely the entire proceedings and to place the

defendant in the position which he would have occupied if no accusation or information had ever been presented against him.

It might be assumed from the motion of the Service that Matter

of D , supra, formulated some new policy of terminating deportation proceedings where the record of conviction had been expunged. Actually, that is not the case. On the contrary, it has

been the established and accepted view of the Service and of this

Board for many years that in cases where a court has expunged

the record of an alien's conviction, the conviction cannot thereafter

serve as the basis for deporting the alien or excluding him. In its

request of July 14, 1959, the Service urges only that Matter of D

supra, be overruled. However, in reality, it is seeking to overthrow

the long-standing practice we have mentioned without even commenting on its existence. The cases next cited confirm the existence

of this rule.

In Matter of G

, 11. & N. Dec. 96, a decision approved by the

Attorney General on January 14, 1942, there was involved article

780 of the Texas Code of Criminal Procedure which permits certain defendants to move for a new trial and dismissal of the case

after the expiration of time assessed as punishment by the jury.

432

There, following the conclusion of the deportation hearing and pursuant to this statutory provision, the court entered an order granting

a new trial to the alien and dismissing the cause. We said (at p.

97) that deportation could not be ordered on the basis of the conviction of crime because "today there is not outstanding a conviction

of the. respondent for this crime." Since there was in that case no

further discussion of this matter, it seems obvious that the proposition that the expungement of a conviction rendered the conviction

ineffective to support an order of deportation was believed no longer

open to question at the time of our decision in that case in 1941.

The only question which it was considered necessary to discuss there

was whether the alien's original plea of guilty to the offense constituted an admission of the crime for immigration purposes.

Article 780 of the Texas Code of Criminal Procedure was also

pertinent to the decision in Matter of L P , 7 I. & N. Dec. 318.

In that case, sentence was suspended on recommendation of the jury.

On February 18, 1957, the Attorney General ordered termination of

the deportation proceeding and held that the conviction lacked

finality. There, the period of punishment assessed had not expired

and the conviction had not been expunged when the case was considered by the Attorney General, but the decision turned on the specific language of article 778 of the Texas law, relating to suspended

sentences, which is to the effect that neither a verdict of conviction

nor the judgment entered thereon becomes final unless there has

been a final conviction for another felony during the period of suspension of the sentence. Similar language is not contained in the

California statute under discussion. However, if the conviction

lacked finality under the circumstances present in Matter of L

, supra, the Service can hardly be correct in its view that there

R

, supra, since in that case

was a final conviction in Matter of D

the conviction had already been expunged at the time the case was

considered.

1. & N. Dec. 265, which was a decision

In Matter of 0

by the Central Office of the Service in 1951, it was stated at page

266, "The Service and the Board of Immigration Appeals have held

in numerous cases that the proceedings under section 1203.4 [of the

California Penal Code] expunge the record of conviction and that.

thereafter it may not serve as the basis for an order of deportation"

(emphasis supplied). The cases cited in that decision show that

this had been the role concerning section 1203.4 since at least 1943,

and the matter was so well settled that the only reported cases are

those dealing with possible exceptions to the rule. In addition to

Matter of 0—T , supra, the existence of the rule is illustrated

, 5 I. & N. Dec. 194 (1953) ; Matter of

V

by Matter of E

, 7 I. &

H—, 6 I. & N. Dec. 619 (1955) ; and Matter of S

433

N. Dec. 495 (1957), in all of which section 1203.4 of the California

Penal Code was involved.

In Matter of D

supra, which the Service says is in conflict

with the decision in the respondent's case, the special inquiry officer,

in terminating the deportation proceeding, also referred to the wellsettled rule mentioned above and stated that section 103.4 of the

California Penal Code had "uniformly been held to expunge and

remove the conviction as a basis for deportation." In our decision

of March 6, 1958, in that case, we stated (p. 674) that the action

taken by the California court removed the alien's conviction as a

basis for deportation, and we affirmed the special inquiry officer's

order terminating the proceeding. If this Board erroneously stated

the law in Matter of D , supra, as contended in the present motion, we do not understand why the Service did not even file a

motion for reconsideration of that decision at the time it. was rendered.

When the Service urged, in Matter of 7-)

supra, that the special inquiry officer had erred in terminating the deportation proceeding, this was based on the fact that the alien was charged with

being deportable under 8 U.S.C. 1251(a)(11) and that 8 -U.S.C.

1251(b), as amended July 18, 1956 (1958 ed.), provided, in effect,

that a pardon, would not relieve - from deportation an alien deportable under 8 IT.S.C. 1251(a) (11). It was contended by the Service

that an expungement of the record of conviction in California was

the equivalent of a. pardon and that, therefore, expungement of the

conviction did not relieve the alien from liability to deportation.

That was the sole argument advanced by the Service in that case.

The Service made no attempt there to contradict the special inquiry

officer's statement. that the expungement of a conviction in California had uniformly been held to remove the conviction as a basis

for deportation, nor did it request repudiation of the rule. On the

contrary, Matter of D , supra, would seem to indicate acquiescence of the Service in the rule as to deportation under S U.S.C.

1251(a) (4) for convictions involving moral turpitude with a request for an exception to the rule in the cases of deportations under

3 U.S.C. 1251 (a) (11) relating to narcotic convictions.

On page 2 of its motion, the Service quoted a statement from

Arrell.a.no-Flores v. Hoy, supra, at page 668, which is to the effect

that the. court could not ignore what transpired in the-criminal proceedings but that possibly Cungren-3 intended to do its own defining

(of "convicted") rather than leaving the matter of what constitutes

a conviction for determination under the statute of the particula:

state. Actually, the word "convicted" is not one of the terms whit]

was defined in 8 U.S.C. 1101, but the decision in Pint) v. Lcrindm

supra., must be considered ; of course, an interpretation of "convicted

limiting it, to convictions which have sufficient finality.

434

The opinion of the Court of Appeals in this respondent's case

shows that the statement quoted by the Service related to a contention of the respondent based on a decision of the Seventh Circuit

that one Freislinger had not been convicted under Illinois law because a final judgment of conviction had not been entered. In

holding that this respondent had been "convicted," the Court of

Appeals did not base its deci:=Ion upon the proposition that the provisions of the California statute or what transpired in the criminal

proceedings should be disregarded. On the contrary, in the next

paragraph following the one quoted by the Service, the Court of

Appeals stated that California would consider that on this record

there was a conviction. Parenthetically, we observe that the court

had also stated at page 667 of the opinion that under California

law such a sentence as was prescribed with respect to this respondent does not constitute a final judgment from which an appeal may

be taken, citing In re Marquez, 45 P. 2d 342. That case was decided

in 1935. However, section 1237 of the California Penal Code, as

amended in 1951, relating to cases in which the defendant may

appeal, contains the specific statement, "an order granting probation [which is what occurred in the respondent's case] shall be

deemed to be a final judgment within the meaning of this section."

With reference to the above-mentioned quotation by the Service

from the opinion of the Court of Appeals, it is followed by this

statement in the motion of July 14, 1939: "IL is the Service view

that this statement correctly reflects the Congressional intent, and

that a conviction has occurred within the meaning of the immigration laws, notwithstanding subsequent legal process under the California statutes whereby this record of conviction ceases to exist for

some purposes." On page 3 of the motion it is stated that, "in

asserting that an alien is properly held not deportable where the

conviction has been expunged, the Board has asserted a legal principle contrary to that set forth in the. Ninth Circuit in the instant

case." We consider it appropriate to comment on two matters raised

by these statements of the Service.

In the first place, we understand from the two statements mentioned above that it. is the view of the Service that Arrellano-Flores

v, 17oy. s?ipra, holds that this respondent. will continue to remain

deportable even if his conviction should hereafter be expunged under s ection 1203.4 of the California Penal Code. However, the decision of the Court of Appeals shows that it did not even consider the

effect of a possible expungement of the record of conviction.

The Court of Appeals stated in its opinion (p. 667) that the

principal issue was whether the alien had been "convicted": that

the judgment of the State court was that, the proceedings be suspended and that probation be granted upon the condition that the

435

alien serve one year in the county jail; and that, because of this

"rubbery end" to the trial, the alien says he has not been "convicted"

but just found guilty. In other words, the respondent's contention

before the Court of Appeals had nothing to do with section 1203.4

but only with his claim that he had not been convicted because, although he was required to serve one year's imprisonment, the State

court had actually suspended the imposition of sentence. (We had

previously held in Matter of 0—, 7 I. & N. Dec. 539 (1957), that

there was finality of conviction where imposition of sentence was

suspended.) Since counsel, before the Court of Appeals, did not

even raise his contention that the respondent should not be deported

because of the possibility that he might be able to have the record

of conviction expunged at some future date and inasmuch as that

question was not considered by the Court of Appeals, we believe it

is clear that the decision in Arrellanos-Flores v. Hoy, supra, cannot

be considered as offering any support for the contention of the Service that an alien remains deportable after his conviction has been

expunged.

Our second comment concerning the two statements of the Service

mentioned above is with respect to that part which is to the effect

that, when a conviction has been expunged under section 1203.4 of

the California Penal Code, it "ceases to exist for some purposes."

Section 1203.4 specifically provides that upon the court's dismissal

of the accusations or information against the defendant, he "shall

thereafter be released from all penalties and disabilities resulting

from- the offense or crime of which he has been convicted." The

comprehensive language which was used does not indicate that the

conviction ceases to exist only for some purposes. The one statutory

exception is contained in the proviso quoted above, which is part of

section 1203.4, to the effect that in any subsequent prosecution the

prior conviction may be pleaded and proved and shall have the same

effect as if the information had not been dismissed.

The Service also stated that this Board has recognized that the

expunging of the record of conviction in California does not completely obliterate the fact that the unlawful acts occurred, citing

Matter of H

,

I. a N. Dec. 619; MaVer of S

I.&; N.

and In. re Paoli, 49 F. Supp. 128 (N•D. Cal., 1943). The

statement. itself is correct and we agree that, we. have said this.

The statement mentioned in the preceding paragtapli appears to

have been first discussed in Matter of 0

T

, 4 I. & N. Dec. 265

(1951). There an alien was convicted of petty theft in 1940 and in

1949 deportation proceedinge were instituted on the basis of this con

viction. Thereafter, the conviction was expunged under section

1203.4 of the California Penal Code. After commenting upon the

fact that it had been held in numerous cases that following such

Dec. 495;

436

expungement the record of conviction could not serve as the basis

for deportation. it was stated that reconsideration of the question

had been requested by a reviewing officer because of the decision of

the Supreme Court of California in Meyer v. Board of Medical

Examiners, 206 P. 2d 1085 (1949). The Meyer case involved suspension of a physician's license and the court had said that the

expungement of a conviction does not obliterate the fact that there

has been a final adjudication of guilt of the crime. Matter of 0

T

, supra., was a decision of the Central Office of the Service and,

after reviewing a number of California cases, the final conclusion

was that no change was warranted in the view that the deportation

charge is not sustained where the record of conviction has been expunged. Since the Service itself considered the issue raised by the

Meyer case when it decided in 1951 to adhere to the previous practice,

there is an incongruity connected with the Service now bringing up

the same factor in urging reversal of the well-settled rule that an

alien is not deportable on the basis of a conviction which has been

expunged.

, supra, and Malter of S

Although we said in Matter of H

If , supra, that the expunging of the record of conviction does

not completely obliterate the fact that the unlawful acts occurred,

it is significant that each case clearly shows that no change was being

made in the rule which had been in effect since at least 1943 that a

deportation charge is not supported by a record of conviction which

has been expunged. Matter of H supra, even went a step beyond this. There the alien had been convicted of two offenses involving moral turpitude during the preceding five years and the records

of conviction had been expunged under section 1203.4 of the California Penal Code. In that case there was no attempt to predicate a

deportation charge on the expunged convictions, and the question

involved was whether, under section 101 (f) (3) of the Immigration

and Nationality Act [8 U.S.C. 1101(f) (3)], the alien was precluded

from establishing good moral character because of the two offenses

which he had committed during the five-year period. We held that

the expungement of the convictions removed the statutory bar to

proving good moral character and we found the alien eligible for

voluntary departure. Our decision was approved by the Attorney

General on October 18, 1955.

We do not consider that In re Paoli, supra. is of any value in supporting the present position of the Service. That case involved an

applicant for naturalization. The court held that an expunged conviction could be considered on the question of whether the applicant

had established good moral character but a principal reason for the

conclusion was that the court, in naturalization cases, could find lack

of good moral character merely on the basis of unlawful acts corn43T

Dated by the applicant- regardless of whether the applicant tau

ever been prosecuted therefor.

On pages 2 and 3 of its motion, the Service refers to the fact that

an offense which has been expunged may be pleaded and proved

during the prosecution of a second offense and, as we have indicated

above, this is a specific provision of section 1203.4 of th6 California

Penal Code. The Service then says: "If so pleaded and proved, it

would, in the Board view, have the incidental effect of resurrecting

deportability." There is also a reference to the "vacillating rule"

of the Board. We believe the Service is well aware that we have

not held, nor have we said, that an alien who was not deportable

on the basis of an expunged conviction, becomes deportable on the

same conviction if the first conviction was pleaded and proved in a

second prosecution. Actually, in 1lfa.tter of S R—, 7 I. & N.

Dec. 495, it was the Service which argued that, in acco rdance with

the proviso to section 1203.4, a subsequent prosecution automatically

revived an expunged conviction. We declined there to follow that

view. Under the circumstances, these remarks of the Service are

unwarranted.

The Service also referred to our interpretation of a Federal statute

4 'in which the Congress saw fit to state that an alien who had committed the particular crime or crimes, and as to whom the judicial

Process has acted with sufficient finality to adjudicate the issue that

he was in fact guilty of that crime, was not a proper person to continue to reside in this country." The statutory provision on which

this deportation is predicated is section 241(a) (11) of the Immigration and Nationality Act [8 U.S.C. 1251(a) (11)] and the part which

is pertinent to this case is that requiring the deportation of an

alien "* * who has been convicted of a violation of * * * any law

* * controlling the * "sale * * * of * * * marihuana * * *."

The Congress did not define "convicted" nor does the statute contain

any of the language which the Service seeks to ascribe to the Congress. The question under S U.S.C. 1251(a) (11) is simply whether

an alien has been "convicted" of any of the narcotic offenses mentioned therein and whether there is finality of conviction in accordance with Pino v. Landon, supra. We have held that this respondent

was convicted and that he is deportable. Where the record of conviction has been expunged, as in Natter of D , supra, it is our

con s idered opinion that the expunged conviction cannot support an

order of deportation. We hold, therefore, that Matter of D--,

supra, was correctly decided and that no change is warranted in that

decision.

We turn now to the cont ent i on of the. Se rv ice that there is a conflict between our decision concerning this respondent and the decision

in Matter of B , s upra. Our position is (1) that an alien may b(

-

438

deported even though there is a possibilit y I at at some future date

he might be able to secure the expungement of his conviction under

the law of the state where the conviction occurred, and (2) that an

alien is not deportable on the basis of a conviction which has been

expunged. This is the distinction between the two cases. In the

respondent's case, the conviction has not been expunged, and there

is no assurance that it ever will be expunged. Accordingly, we hold

Matter of D

thae,isdsupra.,

porbl.In

the conviction

had been expunged and we held, therefore, that he was not deportable. The Service understands that we had made this distinction in

our previous order. However, its motion of July 14, 1959, seems to

indicate that the Service believes there is something anomalous about

the fact that an alien can be deported before his conviction is expunged but the same alien for the same crime cannot be deported

after the conviction has been expunged. Apparently this is advanced

as an argument why there is a conflict, between the two decisions.

However, in view of the distinction between the two cases which we

,

have pointed out, we do not consider that there is a conflict nor that

the argument is a valid one.

A situation similar to the foregoing is present in every deportation under 8 U.S.C. 1251(a) (4) predicated on conviction for a crime

involving moral turpitude. There, deportation is lawful if the alien

is deported before he can secure a pardon for the crime, but, if a

deportation proceeding is instituted and the alien then obtains a

pardon during the pendency of the proceeding, he cannot thereafter

be deported on the basis of the pardoned crime. As we stated in our

previous order, there have been many cases in which aliens have

been found deportable under 3 U.S.C. 1251(a) (4) and subsequently

obtained pardons after which the deportation proceedings were terminated. In Ebru,vaxdim v. WiXO'n, 169 F.2d 980 (C.A. 9, 1949), cert.

don. 336 U.S. 913, it was held that the alien was deportable although

he was eligible for a pardon and the court apparently believed that

the delay in securing a pardon was not the fault of the alien. In

, 7 I. & N. Dec. 478 (1957), we held, with

Matter of R R

respect to a Texas statutory provision similar to section 1203.4 of

the California Penal Code, that the fact that the conviction may be

eNpulip-ed upon satisfactory fulfillment of the conditions of proba

tion does not affect the finality of the conviction during the period

of probation. Hence, these cases illustrate the invalidity of the

Service view that there is something repugnant about the fact that

en alien can be deported prior to the expungement of the conviction

and cannot be deported if the conviction has been expunged before

deportation takes place.

As we have indicated a bove, our position that an alien canmot be

deported after the conviction - has been expunged is not something,

439

which originated in Matter of D

, supra., but was acknowledged

by the Service as being well settled when it decided in 1951 in

Matter of 0 T , supra, that no change was warranted in that

rule. On the other hand, the fact that there is a possibility that an

alien's conviction may be expunged at some future date has not heretofore deterred the Service from instituting deportation proceedings.

For example, that is the situation in this respondent's case; in Mat-

ter of 0

T

, supra, the decision shows that, after the deportation proceeding had been instituted, the record of conviction was

expunged and the proceeding was then terminated; and that was true

also with respect to Matter of D , supra, in which the record of

conviction was expunged on August 31, 1957, and the special inquiry

ocicer's decision in that case shows that the order to show cause instituting the proceeding was served prior thereto on March 12, 1957.

In disagreeing with the proposition that an alien's deportability

may depend upon whether he succeeds in having his conviction expunged before deportation takes place, the Service speaks of the

"procedural requirements" of the California statute coining into

play as though every defendant who has completed his probation is

entitled to have the conviction expunged. It is clear from section

1203.4 of the Californial Penal Code that such is not the case because it is specifically limited to a defendant "who has fulfilled the

conditions of his probation for the entire period. thereof, or who

shall have been discharged from probation prior to the termination

of the period thereof." Hence, if a defendant is not within either

of these categories, he is not entitled to have his conviction expunged.

The present respondent was on April 6, 1956, placed on probation

for five years. We do not know whether he has thus far fulfilled

the conditions of his probation or whether he will continue to do so

until the expiration of five years on April 6, 1961. For that reason,

we said in our order of June 24, 1959, that section 1203.4 of the

California Penal Code does not assure the respondent that his conviction will be set aside, and the mere fact that such a possibility

exists does not seem to us a proper basis for terminating this deportation proceeding as counsel for the respondent requested.

For the reasons stated above, we hold that there is no conflict between the rule which has been in effect since 1943 concerning section

1203.4 of the California Penal Code (or Matter of D , supra)

and the decision which was rendered in the respondent's case. We

adhere to the 1943 rule that a conviction which has been expunged

will not support an order of deportation. While counsel for the

respondent had also claimed that there was a conflict between the

decision in the respondent's case and the decision in Matter of D

supra, his position was the opposite of that urged by the Service,

that is, counsel contended that Matter of D , supra, had been

440

- minat ion of the proceedings

against this respondent. Our reasons for rejecting his contentions

are set forth fully in our order of June 24, 1959, and need not be

further discussed. The Service has not expressed disagreement with

any of the statements which we made in our previous order in connection with our rejection of counsel's contentions except regarding

the question of whether there was a conflict bet ween Matter of

Il

supra, and the decision in the respondent's case. That point

was discussed in the decision of June 24, 1959, as well as in the

present, order. As requested by the Service, this case. will be certified

to the Attorney General.

Order: It is ordered that our orders of September 14, 1956, and

June 24, 1959, be affirmed.

correctly decided and that it require(

It is further ordered that this ease he referred to the Attorney

General for review under 8 CFR 3.1(11) (1) (iii) in accordance with

the request of the Service.

BEFORE THE ATTORNEY GENERAL

(October 12, 1950)

The Board of Immigration Appeals, at the request of the Commissioner of Immigration and Naturalization, has referred to me

for review, as provided by 8 CFR 3.1(h) its order of September 14,

1956, dismissing the respondent's appeal from the order of a special

inquiry officer directing his deportation and its order of June 21,

1959, denying respondent's motion for reconsideration.

The special inquiry officer directed the respondent's deportation

on the ground that he was an alien who had been convicted of a.

narcotic offense. Section 241(a) (11) of the Immigration and Nationality Act, 66 Stat. 204, as amended, 8 U.S.C. 1251(a) (11), provides in pertinent part for the deportation of any alien :

* who at any time has been convicted of a violation of, or a conspiracy

to violate, any law or regulation relating to the illicit possession of or traffic

in narcotic drugs, or who has been convicted of a violation of, or a conspiracy

to violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing,

giving away, importation, exportation, or the possession for the purpose of

o r fucture, production, compounding, transportation, sale, exchange r

the m on auu

dispeng,vawymportin,exaf(spcidnrot

drugs) w .

On November 14, 1955, an accusation was filed against respondent

charging him with

having unlawfully sold, furnished, and given away, flowering tops

and leaves of Indian hemp (cannabis ,catn'c) (marihuana) in violation of c ection 11300 of the California Health and Safety Code..

After trial respondent was found guilty of the offense, and on

April 6, 1956, the court entered the following order:

in a Superior Court of the State of California

-

441

Proceedings suspended, Probation granted for five years, condition, one year

County Jail; residence and employment to be approved by Probation Officer;

no narcotics; stay away from persons and places where narcotics are used;

obey all laws and rules of Probation Department. ,

The respondent has served one year in the county jail; his term

of probation will not expire until April 6, 1961. The Board of

Immigration Appeals dismissed respondent's appeal from the order

of deportation without opinion.

Respondent thereupon instituted an action in the United States

District Court for the Southern District of California challenging

the validity of the deportation order. The district court upheld

the order. The judgment of the district court was affirmed by the

Curt of Appeals Lot the Ninth Circuit (Arrollano Flares v. Hoy,

262 17.2d 667 (1958)). The Court of Appeals stated that the respondent's principal contention was that he had not been "convicted" within the meaning of qertti on 241 (a) (11) of the Immigration and Nationality Act since "(t)he judgment of the state

court, after the finding of guilt, was that the proceedings be suspended and that probation be granted upon the condition that

appellant serve one year in the county jail." The court rejected

this contention, holding that v':.,tever might be the state law as

to whether there had been a conviction Congress intended the

question to be determined by reference to federal law. The court

stated (p. 668) :

While one cannot close one's eyes to the state's statutes and what transpired in the state's proceedings, we are inclined to the belief that perhaps

here Congress intended to do its own defining rather than leave the matter

to the variable state statutes. Credence for this view can be found in the

fact the present statute reads "convicted" while its predecessor, 46 Stat. 1171

(Chap. 224), read "convicted and sentenced." It would appear that federal

1 Section 1203.1 of the California Penal Code provides that the Court, in

ordering probation, may suspend the imposing or the execution of the sentence

and may direct that such suspension shall continue for a period not exceeding

the maximum possible term of the sentence, and that as a condition of probation may imprison the defendant in the county jail for a period not exceeding

the maximum time fixed by law "in the instant case."

, The reference to

the predecessor statute is to the Act of February 15,

1931, 46 Stat. 1171. The words "and sentenced" were eliminated in 1940„54

Stat. 673. That act also extended deportability to aliens convicted of a violation of state as well as federal narcotic laws. These changes were carried forward into tne 1092 act. The legislative hIslory of the 1940 amendments does

not disclose any specific discussion as to the change from "convicted and

sentenced" to "convicted." See Hearings before a Subcommittee of the Senate

Judiciary Committee, 76 Cong., 3d Sess., on H.R. 513S, 76th Cong., H.R. Rept.

Nos. 994, 2683, S. Rept. No. 1796, 50 Cong. Rec. 8340=19, 9029 36.

A further amendment was made by the Narcotic Control Act of 1956, 70

Stat. 575, to provide that a pardon was not to relieve from deportability an

alien otherwise deportable because of conviction of a narcotic offense. See

Gordon and Rosenfield, Immigration Law and Procedure, §

112

courts have 7pnerally taken the view that a plea of guilty or a Coding of

guilty, which is in repose and remains undisturbed, amounts to a conviction.

See Kereheval v. United States, 274 U.S. 220.

But if our question is whether California would consider ou this record

there was a conviction, then it is clear that California has answered iii the

affirmative. In re Morehead, 107 Cal. App. 2d 346, 237 P. 2d 335; People v.

Christman, 41 Cal. App. 2d 158, 106 P. 20 324i

The respondent thereupon filed a petition in the Supreme Court

for a writ of certiorari. That petition is now pending.* In May

1959, the Solicitor advised the Court that after the petition had

been filed, "it was discovered that the Board of Immigration Appeals had rendered a decision (Matter of D , 7 I. & N. Dec. 670

(March 6, 1958)) , subsequent to the decision in this case, which

may be inconsistent therewith since it expressed the view that a

person who is "released from all penalties and disabilities pursuant

to section 1203.4 of the California Penal Code, after a period of

probation, 4 is not a person 'convicted' for the purposes of deportation." It was further stated that on the basis of the latter decision

the petitioner (the respondent herein) had moved the Board for

reconsideration ; and in view of the fact that "the administrative

position as to the effect of a California judgment of probation is

thus presently under reexamination," the court was requested to

defer action on the petition until after the ultimate determination of

petitioner's m otion for reconsideration.

On June 24, 1959, the Board denied respondent's motion for reconsideration. The Board held that its decision in Matter of D

supra, did not require a different determination in respondent's case,

stating that while the cases were similar in both involved like

statutes, namely 1772 of the California Welfare and Institutions

Code and § 1203.4 of the Penal Code, 5—

a The Court of Appeals stated (p. 667), citing In le Marquez, 3 Ca1.2d 625,

45 P. 2d 342 (1935), that under California law such a sentence as was prescribed here does not constitute a final judgment from which an appeal may

be taken." The court apparently overlooked the 1951 amendment of § 1237 of

-the California Penal Code, which now expressly provides that an order granting probation "shall be deemed to be a final judgment" for purposes of appeal.

- See People v. Hedderly, 43 C.2d 476, 274 P. 2d 857 (1954).

*Cert. den. 362 U.S. 921 (1960).

4 Section 1203.4 provides that a defendant who has fulfilled the conditions of

his probation may be permitted by the court to withdraw his plea of guilty

and enter a plea of not guilty; or if he has been convicted after a plea of not

guilty, the court shall set aside the verdict of guilty; and in either case the

court shall thereupon dismiss the accusations or information against such

-defendant, who shall thereafter be released from all penalties and disabilities

resulting from the offense or crime of which he has been convicted."

7 I. & N. Dec. 670, the respondent, as in this case, was

, In Matter of

charged with being deportable pursuant to §241 (a 1 (11) of the Immigration

and Nationality Act in that he had been convicted in California for unlawfully

443

* * * we are convinced that there is no statutory authorization for complying with counsel's request that the deportation proceeding be terminated

in the respondent's case on the basis of the possibility that at some future

date he might have his narcotic conviction set aside. The situation is different

when a record of conviction has already been expunged in California because,

in such a case, there is no conviction whatever to support an order of deportation. (Emphasis by the Board.)

Referring to respondent's contention that the state court conviction lacked finality because the imposition of sentence had been

suspended, the Board said:

* * * The opinion of the Court of Appeals for the Ninth Circuit shows that

it was fully aware of the judgment of the state court inasmuch as there is a

recital of the fact that the state court had ordered that the proceedings be

suspended and that proLation be granted upon the condition that the respond-

em serve one year. It was this exact question which was considered by the

United States Court of Appeals and it concluded that the respondent had

been "convicted" within the meaning of 8 U.S.C. 1251(a) (11). * * *

On July 14, 1959, th?, Commissioner of Immigration and Naturalization requested the hoard to refer the case to the Attorney General for review. The Commissioner, stating that "administrative

reconsideration" had been sought so that the Board might have

"an opportunity to consider an a:oarent conflict in its decisions, and

to clarify the Attorney General's position with respect to the issue

involved," asserted that the factual distinction reliecl upon by the

Board to support its holding in Matter of D- —, supra, had no

legal significance. The Commissioner argued that a correct interpretation of §. 241(a) (11), reflected in the opinion of the Court of

selling marihuana. By order dated June 20, 1956, the court committed the

respondent to the Youth Authority of California for the term prescribed by

law. Section 1772 of the Welfare and Institutions Code provides that in the

case of a person honorably discharged from control by the Youth Authority,

the court which committed him may set aside the verdict of guilty and dismiss the accusation or information and he "shall thereafter be released from

all penalties and disabilities resulting from the offense or crime for which he

was committed." During the pendency of the deportation proceeding the court

entered an order pursuant to § 1772, setting aside the respondent's plea of

guilty and dismissing the information. The special inquiry officer terminated

the deportation proceeding on the ground that as a consequence of the proceedings under § 1772 the respondent no longer stood convicted of the crime

upon which the deportation proceeding was based. The Immigration and

Naturalization Service contended before the Board of Immigration Appeals

that a 5 1772 "exnungement of the conviction" is ectuivalent to a pardon and.

accordingly, that the respondent remained deportable since the 1956 amendment to § 241(a) (11 ) (sec Footnote 2, supra.) removed a pardon as the basis

for relief from deportation thereunder. The Board rejected this contention,

stating that the question was not one of a pardon hilt rather of conviction

and that the respondent had not been convicted within the meaning of § 241

(a) (11).

Matter of D—, ,supra, was not referred to the Attorney General for review

of the Board's decision.

444

of

the immigration laws, notwithstanding subsequent legal process

under the California Statutes whereby this record of conviction

ceases to exist for some purposes." And he continued:

A_ppeal, was that. "a conviction has occurred within the meaning

It is, therefore, the Service view that Matter of D— erroneously states

the law. It is further the Service view that the order entered by the Board

on June 24, 1959, in no way resolves a conflict of law between that case and

the instant case, since in asserting that an alien is properly held not deportable where the conviction has been expunged, the Board has asserted a legal

principle contrary to that set forth in the Ninth Circuit in the instant case.

Accordingly, since the issue is one which must be resolved in order that

appropriate action may be taken in connection with the petition for certiorari

to the Supreme Court (sic), it is requested that the case be certified to the

Attorney General.

Tn referring the case. to me for review, the Board has adhered

to its view that the distinction between Matter of D—, supra.,

and this case is a valid one, and is consistent with the opinion of

the Court of Appeals. The Board also states that acceptance of

the Commissioner's view "would logically require a conclusion that

the setting aside of a conviction, in accordance with similar statutory provisions of other States, likewise would be ineffective to

prevent deportation," thus overturning a long-established administrative practice.

The special inquiry officer, the Commissioner of Immigration and

Naturalization, the Board of Immigration Appeals, the District

Court, and the Court of Appeals are in agreement that the respondent was convicted of a narcotic violation within the meaning

of § 241(a) (11) of the Immigration and Nationality Act. I am

in accord. I, therefore, affirm the order of the Board dismissing

the respondent's appeal and denying his petition for reconsideration.

However, it is my view that for the purpose of § 241(a) (11) it is

immaterial that pursuant to a state statute like § 1203.4 of the

California Penal Code or § 1772 of the Welfare and Institutions

Code the verdict of guilty has been set aside and the criminal charge

dismissed. I, therefore, disagree with the Board that in such cases

"there is no conviction whatever to support an order of deportation." I limit my disagreement to the precise issue presented—

namely, a deportation proceeding brought under g 241(a) (11), as

it may be affected by state laws of the nature of the California

statutes considered herein.

The history of § 911(a) (11) convinces me that Congress did not

intend that aliens convicted of narcotic violations should escape

deportation because, as in California, the State affords a procedure

authorizing a technical erasure of the conviction. Traffic in narcotics has been a continuing and serious Federal concern. Congress has progressively strengthened the deportation laws dealing

445

with aliens involved in such traffic. Thus, 3,3 indicated above

(footnote 2), in 1940 the deportation statute was amended to eliminate the requirement that in addition to a conviction there must be

a sentence. At the same time the statute was extended to convictions

for violation of State as well as Federal statutes. And, since the

1956 amendment an alien may no longer escape depoitability by

proffering a pardon. In the face of this clear national policy, I

do not believe that the term "convicted" may be regarded as flexible enough to permit an alien to take advantage of a technical

"expungent" which is the product of a state procedure wherein the

merits of the conviction and its validity have no place. I believe

that Congress intended the inquiry to stop at the point at which it

L., ascertained that there has been a conviction in the normal sense

in which the term is used in Federal law. See Borman v. United

States, 302 U.S. 211 (A defendant is convicted even though the trial

court, after imposing sentence, has placed the defendant on probation.). Of course, f the conviction is still subject to reversal

by the usual processes of appellate scrutiny, the statute is not

satisfied. But beyond this I do not think the inquiry can extend,

consonant with the Congressional purpose and policy. I, therefore,

regard it as immaterial for the purposes of § 241(a) (11) that the

record of conviction has been cancelled by a state process such as

is provided by § 1202,4 of the California Penal Code and by § 1772

of its Welfare and Institutions Code.

Moreover, to follow the Board's view would make the deportability 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 prc

sumably § 1772 of the California Welfare and Institutions Code

has been characterized as. "without parallel in the legislation o

any other state" in providing for a release of the probationer fror

all penalties and disabilities resulting from conviction. 2 Sta.]

Law Rev. 221, 222 (1949). It is hardly to be supposed the

Congress intended, in providing for the deportation of aliens coy

victed of narcotic violations, to extend preferential treatment

those convicted in the few jurisdictions, which, like California, pr

vide for the expungement of a record of conviction upon the n

mination of probation.

446