Interim Decision #2276—Appendix

Interim Decision #2276—Appendix

APPENDIX

MOTION OF COMMISSIONER

(April 3, 1974)

THE IMMIGRATION & NATURLIZATION SERVICE MOVES

THE BOARD OF IMMIGRATION APPEALS FOR RECONSIDERATION AND WITHDRAWAL of its order of May 31, 1973 in

the subject deportation proceedings, and for a termination of the

proceeding.

STATEMENT

On May 31, 1973, the Board affirmed the decision of the Immigration Judge directing the deportation of the alien by reason of

his conviction of a violation of a law or regulation relating to the

illicit possession of marijuana, in -violation of § 241(o.X11) of the

Immigration & Nationality Act. Deportability was based upon a

conviction under California law, for possession of marijuana. In its

decision the Board ruled that the alien remained deportable

notwithstanding the fact that he was a minor at the time the

conviction occurred and the conviction was later expunged under

§ 1772 of the California Welfare & Institutions Code, upon completion of youth offender treatment.

The respondent filed a Petition for Review of the order of the

Board in the Court of Appeals for the Ninth Circuit. He reasserted

his contention that in a similar case involving a federal conviction

of a youth offender under 18 U.S.C. 5010(b), and a federal expungement under 18 U.S.C. 5021(a), an order of deportation was not

upheld on the ground that Congress had shown a clear intention

that the expungement should free the youth offender of all taint of

a conviction (Morera v. INS, 462 F2d 1030 (CA. 1, 1972). The Court

of Appeals for the Ninth Circuit declined to apply the Morera

principle to the instant case, and affirmed the decision of the

Board. A petition for certiorari was then filed.

DISCUSSION

Attached herewith is a memorandum from the Solicitor General,

to the General Counsel, Immigration & Naturalization Service,

reflecting the view of the Solicitor General after a review of the

issues involved in the subject case, that the Morera decision should

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be extended to marijuana convictions of youth offenders where the

crime has been expunged under state laws similar to the expungement provisions of the Federal Youth Corrections Act as in the

instant case. Pusuant to this recommendation of the Solicitor

General the Immigration & Naturalization Service has now

adopted the position that marijuana violators, who are treated as

youth offenders, under state laws, will be dealt with in the same

manner as such offenders under federal law. It is to be noted that

this position does not apply to offenses involving narcotics and

drugs other than marijuana, nor to expungement under state laws

that do not have a federal counterpart.

In view of the foregoing it is respectfully urged that the order

entered by the Board on May 31, 1973 be withdrawn, and that the

proceedings be terminated.

MOTION IS MADE that the order entered by the Board on May

31, 1973 be withdrawn, and that the proceedings be terminated.

Office of the Solicitor General

Washington, D.C. 20530

27 MAR 1974

Charles Gordon, Esquire

General Counsel

Immigration & Naturalization Service

Washington, D.C.

Re: Manuel Andrade-Gamiz v. Immigration & Naturalization Service, U.S. Supreme Court, No. 73-5694

Dear Mr. Gordon:

A petition for certiorari has been filed in the above-entitled case

challenging a deportation order issued under 8 U.S.C. 1251(a)(11)

based on the petitioner-alien's California conviction in 1971 for

possession of marihuana (two or three cigarettes, as we understand it) in violation of state law. He was a minor at the time and

was commited to California Youth Authority. He was honorably

discharged about two years later, and his conviction has been set

aside pursuant to Section 1772 of the California Welfare and

Institutions Code, which provides for such expungement upon

satisfactory completion of youth offender treatment. Petitioner

contends, inter alia, that the Board of Immigration Appeals'

refusal, summarily affirmed by the Ninth Circuit, to take into

account the expungement of his conviction, erroneously construes

Section 1251(aX11) and conflicts with the First Circuit's decision in

Mestre Morera v. Immigration and

F2d 1030 (C.A. 1).

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Naturalization Service, 462

Interim Decision #2276—Appendix

The purpose of this letter is to recommend that the Service

promptly (a) revise its policies with respect to the application of

Section 1251(aX11) to a person in petitioner's situation, and (b)

reconsider and set aside the instant deportation order. If such

action is taken, we can so represent to the Supreme Court and

suggest that the case is moot (or arrange for the petition to be

withdrawn) thereby avoiding a challenge to the application of

Section 1251(aX11) in what I regard as perhaps the weakest

possible context for the government. Our analysis of the problem

follows.

Deportation statutes, because of their drastic consequences,

must be strictly construed. E.g., Barber v. Gonzales, 347 U.S. 637,

642-643; Fong How Tan v. Phelan, 333 U.S. 6, 10. Accordingly, a

state conviction of a youth offender for a marihuana offense which

has been expunged following staisfactory rehabilitative treatment

should not be regarded as the basis of deportation in the absence

of persuasive reasons or a clear statement of congressional intent.

Under 8 U.S.C. 1251(a), various categories of aliens are 'subject to

deportation, upon order of the Attorney General. One category

includes, under specified circumstances, aliens "convicted of a

crime involving moral turpitude" (8 U.S.C. 1251(a)(4)), while another includes, inter al* narcotic drug addicts and persons "convicted of a violation of or a conspiracy to violate, any law or

regulation relating to the illicit possession of or traffic in narcotics

drugs or marihuana * * *." 8 U.S.C. 1251(a)(11).

Where a federal or state court conviction for a crime involving

moral turpitude is expunged or set aside pursuant to a federal or

state statute providing such a remedy (e.g., upon completion of

probation or after custody as a youth offender), the conviction is

no longer a basis for depbrtation under Section 1251(aX4). See, e.g.,

Garcia— Gonzales v. Immigration and Natwralization Service, 244

F2d 804, 810 (C.A. 9), certiorari denied, 382 U.S. 840; Matter of G--,

1 I. & N. Dec. 96; Matter of 0-7'—, 4 1. & N. Dec. 265; Matter of

G—, 9 T. &

Dee. 159, 165; Matter of Gutniek, 13 I & N. Dec. 672.

Prior to Morera, however, it has been held that a state conviction covered by Section 1251(a)(11) but set aside under an expungement law similar to the federal act nevertheless remained a

ground for deportation, regardless of the nature of severity of the

violation, even though a conviction for a crime of moral turpitude

thus set aside would not be a basis for deportation. This position

was asserted by the Attorney General in 1959 in Matter of A—F—,

8 I. & N. Dec. 429, where a deportation order under Section

1251(aX11) was based upon an alien's California conviction, notwithstanding the contention that the conviction might later be set

aside under Section 1772 of the California Welfare and Instutions

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Code providing for post-probation expungement' Following the

Attorney General's reasoning, some courts held that even where a

state narcotics or marihuana conviction is actually set aside under

a state law, the expunged conviction still requires deportation

under Section 1251(a)(11). See Garcia—Gonzales v. Immigration

and Naturalization Service, supra; de la Cruz—Martinez v. United

States, 404 F2d 1198 (C.A. 9), certiorari denied, 394 U.S. 955;

Gonzalez de Lara v. United States, 439 F.2d 1316 (C.A. 5).

In Morera, however, the First Circuit held that a federal marihuana conviction set aside under the Federal Youth Corrections

Act (8 U.S.C. 5021) following satisfactory completion of rehabilitatWe treatment or probation was not a basis for deportation under

Section 1251(a)(11). The court stated in Morera (462 F2d at 1032)

that that Act:

clearly contemplates more than a "technical erasure;" it expresses a Congressional concern, which we cannot say to be any less strong than its concern

with narcotics, that juvenile offenders be afforded an opportunity to atone for

their youthful indiscretions. * * * Pardon and leniency at most restore to an

offender his civil rights; neither is as clearly directed as the Youth Corrections Act toward giving him a second chance, free of all taint of a conviction

[citation omitted]. Indeed, the presence of ocalual 241(b) [8 U.O.C. 1251(b)1

suggests to us that if Congress had intended a section 5021 certificate to be

inoperative with respect to section 241(a)(11) (8 U.S.C. 1251(a)(11)], it would

expressly have said so.

As I understand it, the Immigration and Naturalization Service

not only follows Morera, but also, as a matter of policy, does not

deport a person whose conviction is likely to be set aside pursuant

to the Youth Corrections Act.

Because the instant case does not involve a conviction set aside

under the Youth Corrections Act, the decision below does not

1 At the time of the decision in Matter of A

F , Section 1251(a)(11) referred

only to "narcotics" and made no mention of marihuana, and the Ninth Circuit

had recently held that a conviction involving only marihuana was therefore not

a basis for deportation under Section 1251(a)(11). See Hoy v. Mendoza-Rivera, 267

F.2d 451 (C.A. 9), affirming Mendoza-Rivera v. Del G11.07151,0, 101 P. Supp. 473 (S.D.

Cal.). In 1960 Congress amended Section 1251(a)(11) to include marihuana

offenses specifically. '74 Stet. 504; see S. Rep. No. 1651, 86th Cong., 2d Sess., at pp.

13-14.

2 The court was referring to 8 U.S.C. 1251(b), which provides that Section

1251(a)(4) shall not require deportation if the alien has been fully and unconditionally pardoned by the President or the governor of any state or if the

sentencing judge recommends against deportation; however, Section 1251 (b) is

by its terms expressly inapplicable to an alien charged with being deportable

under Section 1251(a)(11).

—

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present a square conflict with the holding in Morera.3 However,

given the role necessarily played by state law in deportation

proceedings, the accommodation of competing policies in Morera is

not rendered irrelevant here simply because Morera involved a

conflict between two federal statutes, rather than a federal statute and a state statute, as here. Given Morera, there is little, if

any, reason to justify a different result where the expungement of

a youth offender's conviction occurred pursuant to state law. The

same result can and, I think, should be reached in such a case.

It has sometimes been suggested, as a reason for disregarding

expungement under state law when basing deporation under

Section 1251(aX11) on a state conviction, that deportation is a

federal matter which should not be subjected to the varied

consequences that states may choose to attach to convictions for

offenses that justify deportation. See, e.g., Gonzalez de Lara v.

United States, supra, 439 F2d at 1318-1319; de la Cruz Martinez v.

Immigration and Naturalization Service, supra, 404 F2d at 1200;

of Gutierrez-Rubio v. Immigration and Naturalization Service, 453

F2d 1243 (C.A. 5) (deportation under 8 U.S.C. 1251(aX14)). This

approach assumes, in effect, that all issues concerning deportation

must be governed solely by federal law.

It is true, of course, that in the first instance federal law

normally governs the construction of federal statutes. In many

cases, however, the federal rule of construction may call for

reference to and the reliance upon state law. See, e.g., Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 209-210; De

Sylva v. Ballentine, 351 U.S. 570, 580-581; ef. United States v.

Yazell, 382 U.S. 341, 354-358. In the context of deportation, it is

unquestionable that state law has a role to play, in that certain

convictions for violation of state law are grounds for deportation,

and pardons by governors may bar a state conviction from being

so used.

Indeed, in Matter of G—, supra, 9 I. & N. Dec. at 169, the

Attorney General recognized that the Supreme Court's per curiam

reversal of a deportation order under Section 1251(a) (4) in Pino v.

3 The court of appeals below stated in its brief order that "Morera is not the

law of this circuit," citing Hernandez-Valensuela v. Rosenberg, 304 F.2d 639 (C.A.

9). The latter case, however, held merely that a conviction which might some day

be set aside pursuant to 18 U.S.C. 5021 was still a conviction for deportation

purposes. In Morera the defendant's conviction had beeh set aside pursuant to

Section 5021 of the Federal Youth Corrections Act prior to the court of appeals'

decision, and the cases are not necessarily in conflict.

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Landon, 349 U.S. 901,4 indicated that the question whether a

conviction should be treated as a basis for deportation is not

"purely a 'federal question.' "

In addition, as to crimes of moral turpitude not involving

narcotics or marihuana, the Service, with the approval of the

Attorney General and the courts, has been taking into account the

effect of state post-conviction expungement laws in determining

that an otherwise final conviction should not be regarded as a

basis for deportation. 5

Expungement statutes concerning youth offenders, perhaps

even more than other expungement laws, reflect a policy of

providing a clean start which would be virtually negated if

deportation under federal law were still a consequence of an

expunged state marihuana conviction of a youth. A disparity in

treatment of state and federal youth offenders is particularly

inappropriate in view of the fact that, quite frequently, the

underlying facts involve violation of state and federal law, and

may be the basis of either state or federal prosecution. Indeed, as to

persons under twenty-one, federal law encourages the United

States Attorney to forego prosecution and surrender the juvenile

to state authorities if "it will be to the best interest of the United

States and of the juvenile offender" to do so. 18 U.S.C. 5001. Where

a choice can be made, it is generally the practice that the less

serious offenses are handled by state prosecution, and that federal

prosecutions are reserved for the more serious offenses.

Thus, to confine the result in Morera to youth offender convictions expunged under the federal law would tend to produce the

anomalous situation where, for example, a youth offender prosecuted federally and convicted of a serious marihuana offense

would not be deportable if the conviction were expunged, while one

4 The facts in Pino are set forth in the lower court decisions. See Pin() v.

Nicolls, 119 F. Supp. 122 (D. Mass.), affirmed, 215 F.2d 237 (C.A. 1). The question

was whether an alien had been "convicted" where he had been found guilty,

received a suspended sentence and been placed on probation for ono year, after

which, under a unique Massachusetts procedure, the sentence had been revoked

and the case placed "on file," subject to being called up at any time for

imposition of sentence or other disposition. The Court held that there was no

conviction for deportation purposes.

s It should be noted that state expungement statutes have been allowed to

pretermit deportation even where there is no comparable federal statute applicable to a similar federal conviction. For example, while the Federal Youth

Corrections Act provides relief comparable to that authorized by Section 1722 of

the California Welfare and Institutions Code, involved in the instant case, no

federal statute authorizes expungement more generally following completion of

probation, as does section 1203.4 of the California Penal Code, pursuant to which

expungement has been held repeatedly to bar deportation based on the expunged conviction for a crime of moral turpitude.

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prosecuted in state court and convicted on a trivial marihuana

offense would therefore be deportable, even if the conviction were

expunged.

Such disparity is difficult to justify or defend, and should be

avoided if possible by a reasonable construction of the statute. At

a minimum, I think that, consistent with Morera, the Service

would be warranted in construing Section 1251(aX11) as not requiring deportation on the basis of a state marihuana conviction of a

youth offender which has been expunged or set aside pursuant to •

a law comparable to the Federal Youth Corrections Act, if the

youth offender upon conviction could have obtained expungement

under the federal law if he had been subjected to federal prosecution. This construction is consistent not only with Morera, but also

with the general statutory scheme.

The crucial legislative development relied upon by the Attorney

General in Matter of A—F--, as indicating a strong congressional

policy favoring deporation of aliens involved in narcotics traffic,

was the Narcotics Control Act of 1956, 70 Stat. 575. That act added

language to Section 1251(b) to exclude deportations under Section

1251(a)(11) from its provision that a pardon or recommendation of

the sentencing judge against deportation would bar deportation

under Section 1251(aX4), based on conviction of a crime of moral

turpitude. Prior to 1960, however, Section 1251(a)(11) applied in

terms only to marihuana offenses. Therefore, the 1956 amendment

does not necessarily reflect a clear national policy as to marihuana

offenses.6

Moreover, the fact that the 1956 amendments excluded narcotics

offenses from the provision for pardons, but did not purport to

exclude them from the settled policy and practice of not treating

expunged convictions as convictions for deportation purposes, can

be said to suggest that no change was intended in that regard. See

Morera, supra, 462 F.2d at 1032.

Significantly, it was held in Morera that neither the 1956

amendment to Section 1251(b) nor the 1960 inclusion of marihuana

offenses in Section 1251(a)(11) interferes with the analogous treatment of marihuana convictions set aside under the Federal Youth

Corrections Act (18 U.S.C. 5021), as not being grounds for deportation under Section 1251(a)(11).

In any event, whatever may have been Congress' policy toward

6 While the inclusion of marihuana offenses in Section 1251(aX11) in 1960 did

reflect a judgment that such offenses could be a basis for deportation, the

legislative history of that amendment (see p. 3, supra, n.1) does not suggest a

specific congressional intent that expungement of a marihuana conviction (or

indeed of any conviction covered by Section 1251(a)(11)) should be completely

disregarded for deportation purposes.

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narcotics offenders at the time of the decision in Matter of A—F— ;

recent legislation indicates a different Congressional policy toward

persons convicted of simple possession of marihuana. Thus, in 1970

Congress found that "there is a lack of an authoritative source for

obtaining information involving the health consequences of using

marihuana." 21 U.S.C. 186. Accordingly, Congress established the

National Commission on Marihuana and Drug Abuse and directed

it to conduct a comprehensive study of the use and effects of

marihuana. 84 Stat. 1280-1281, 21 U.S.C. 801, note! In 1970, as an

interim measure for the period during which the Commission's

report was being prepared and considered, Congress reduced the

penalties for initial marihuana offenses—from a mandatory term

of at least five and up to twenty years (see 21 U.S.C. (1964 ed.)

176a) to a maximum term of one year for possession—and provided

a new procedure whereby a charge and finding of guilt for a first

offense of simple possession could be expunged and not treated as

a conviction for any purpose. 21 U.S.C. 844. In its report in 1972 the

Commission recommended that possession and personal use of

marihuana be decriminalized. See Report of the Commission on

Marihuana and Drug Abuse 152-161.

If it was appropriate to consider a heightening of federal

concern about narcotics offenders as requiring their exclusion

from the usual consequences of expungement of convictions for

deportation purposes, it would seem equally appropriate to consider a lowering of sanctions for such offenses, at least as to

possession of marihuana, as removing pro tanto the policy basis for

such exclusion.

The foregoing analysis and recommendation does not necessarily apply to offenses involving narcotics and drugs other than

marihuana, which is the only controlled substance involved in the

instant case, nor to expungement under state laws that do not

have a federal counterpart.

If the Service does change its policy in this regard or if for that

or any other reason the instant deportation order is set aside,

please communicate the facts to Mr. Norton of this office (739-2186)

so that we may appropriately prepare our response to the pending

petition.

I thank you for your consideration of this matter.

Sincerely,

/s/ Robert IL Bork

ROBERT H. BORIC

Solicitor General

7 Congress also directed the Secretary of Health, Education and Welfare to

make annual reports to Congress on the health consequences of marihuana use

and on related recommendations. 21 U.S.C. 187.

660