Interim Decision #1528

Interim Decision #1528

- Marrer or Jonson

In Deportation Proceedings

A-6012667

Decided by Board November 8, 1965

Where, following an alien’s plea of guilty in the Superior Court, Kings County,

Washington to a charge of illegal possession of narcotics, imposition of

sentence was suspended by order of the court under the Probation Act and

he was placed on parole conditioned that he serve 4 months in jail after

which he was released, such alien has been convicted for the purposes of

«section 242(a)(11), Immigration and Nationality Act, as amended.

CHARGE:

Order: Act of 4952—Section 241(a)(11) [8 “U.S.C. 1251(a) (11)]-—Con-

: victed of violation of law relating to illicit pos-

- session of narcotic drugs, to wit, marihuana.

Respondent, a native and citizen of Canada, 2 24-year-old male,

last, entered ‘the United States on or about December 7, 1944. The

deportation: charge is based on the Service contention that respondent was convicted for illegal possession of narcotics. Respondent

contends that the criminal ‘proceeding did not result in a conviction

for immigration purposes. The special inquiry officer, agreeing with

- respondent’s contention, terminated deportation proceedings and °

certified his order to the Bonrd. We find the charge sustained and

will reopen proceedings.

.An information filed in the Superior Court, Kings County, Washington charged the respondent with illegal possession of narcotics;

he entered a plea of- guilty and applied for probation,

- In Washington, following a plea or a verdict of guilty, a court,

with exceptions not applicable here, using either the Suspended Sentence Act (Appendix A) or the Probation Act (Appendix B) may

impose sentence and stay execution or using the Probation Act may

suspend the imposition of sentence. In the instant case, the court

using the Probation Act suspended the imposition of sentence. On

. March 12, 1965 the court entered an order in respondent’s case pro- ~

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Interim Decision 441528 . ,

viding that “the imposition of sentence against the Defendant herein

be, and the same is hereby deferred for a period of five (5) years,

from date” upon the condition that he follow “the instructions of

the Board of Prison Terms and Paroles” and that he “serve a ternr ©

of four (4) months in the Kings County Jail.” The order provided

that it was to remain in effect until the court’s further action (Ex

2). Respondent served his sentence and was released, No further -

action has been taken by.the court. The question is whether the °

alien was convicted for purposes of that portion of section 241 (a) (1!)

of the Act requiring the deportation of an alien convicted for violu!-

ing a law pertaining te narcotics. °

Many factors had to be considered before. the term “conyiction

could be interpreted for immigration purposes. There was the di

versity of state procedures following a plea or verdict of guilty, thefact that a: conviction could exist for some state purposes and not

. for others, the necessity for some.uniformity in deportation proceedings, and the Sapreme Court’s holding that 2 degree of finality, had to

be achieved before a conviction existed for deportation purposes

(Pino v. Landon, 349 US. 901 (1955)). As to the definition of the

term “conviction,” disregarding form and the ambiguous attitude of

a state, we sought to achieve uniformity by holding that a conviction

existed for immigration purposes if the state considered that a pro-’

ceeding in oné of its courts had resulted in a, conviction for any one

purpose. As to finality, disregarding the conflicting interpretations

of the different states as to what orders are “final” judgments, and

goncluding that a “final” judgment is not necessary, We found the

‘finality required by Pene present if a court disposed of a case with

“in order which removed the case from the docket, and subjected the

alien to judicial control without the necessity of giving the alien a

- new trial as to his guilt or innocence of the charged crime whenever

the court desired to exercise its right to control his person (AMatier |

of O—, TI. & N. Dec, 539 (1957) ).

>»: ‘Thus, when a state considers a. proceeding has resulted in a con-’

-*yiction, we consider it one for deportation purposes if the judicial

- action results in a suspended sentence accomplished either by the

- passing of sentence and suspension of its execution, or & suspension

of the imposition of sentence; however, when a court merely postpones action following a plea or verdict of guilty end continues the

“ease on a calendar for further consideration, or where the alien is

entitled to new trial to determine’his guilt or innocence before

the court ean control him if it desires to supplement or change its |

original order there is no conviction for immigration purposes.

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- Interim Decision. #1528

The special inquiry officer, following Matter of O—, is of’ the “belief that the court’s action here resulted-not in the suspension of the’.

_imposition of sentence but in the postponement of the case for con-

‘sideration -at a future-date. Tho record does not support his conclusion. - In removing the case from the docket, imposing punishment on respondent, and ‘subjecting him to.further punishment at’

the court’s pleasure without. the. necessity of retrying the question

of his guilt, the court suspended imposition of sentence rather than

merely postponed to some future date the question of: guilt or the

-question of punishment (Appendix C).. ._

Our rules requite the finding that the state hold the criminal

proceeding had resulted in a conviction for.any one purpose. In

the instant case, we note that the Probation Act which provides for

the suspension of imposition of ‘sentence comes into effect only “after

a, conviction,” that the section dealing with expungements speaks of

- the probationer as one punished “for the offense for which he' has

been convicted,” and that it provides for the release from ‘penalties

resulting from the crime for which the person “has been convicted.”

We note further that the respondent was required to serve a term

of imprisonment as a condition of probation and that there can be

no punishment for an offense under tha laws of the State of Washington unless the person “shall have been duly and legally convicted”

(ROW 10.050.). -

\” Before we consider other matters advanced by the special inquiry

officer and counsel one further matter concerning Mfatéer of O— tequires discussion. The alien in Afatter of O— sought judicial review

on the grounds that he had 9, nondeportable status which was preserved by a savings clause, and that a sentence to imprisonment ‘in

New York State, execution being’ suspérded and the suspension never

revoked, lacks the finality to support-an order of deportation. The

court, without any, analysis of the issues, granted the alien’s motion

” for summary judgment (O7f v. Rogers, Civ. No. 9459-57, D.D.C.

March -8, 1959). With due respect to'the court, we believe that

Matter of O—, may still ‘be followed. The savings clause is not

invoked here and needs no comment, If it was the contention thit

a suspended sentence cannot be considered 2 conviction for immigration purposes because.it lacks finality that persuaded the court,

*t is one which has been, considered and rejected in .a number of

cases after full consideration. For example, Arrellano-Flores, v.

Hay, 262 F.2d 667 (9th Cir, 1958), cert. den, 362 U.S. 921, Held

that 2 conviction for deportation purposes resulted where under a

law similar to the one here considered, proceedings were suspended

by a. California state court and probation granted on condition that

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Taterim Decision #1528

the alien serve a year in jail. To similar effect, Burr v. Immigration and Naturalization Service, Civ. No. 19707 (Sth Cir., August 2,

1965); Kelly. v. Immigration and Naturalization Service, 34) F.2d

473 (9th Cir., 1965) ; Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir., 1965), cert. den. 34 L.W. 319;

Gutierrez v. Immigration and Naturalization Service, 323 F.2d 593

(9th Cir., 1963), cert. den, 12 L. ed. 2d 179; Zabanazad v. Rosen- ©

berg, 206 F.2d 861 (9th Cir., 1962); Adams v. United States, 299

F.2d 327 (9th Cir. 1962); Burr v. Edgar, 202 F.2d 593 (9th Cir.,

1961); Wood v. Hoy, 266 F.2d 825 (9th Cir., 1959); United Statés .

ea rel, Fells v. Garfinkel, 188 F. Supp. 524 W.D. Pa. (1957), affd.

251 F.2d 846 (8rd Cir., 1958).. In view of this authority supporting

the view that a suspended sentence results in » conviction for immigration purposes, we believe it proper to follow the rules Jaid down

in Matter of O—. ,

In reaching the conclusion he did, the special inquiry officer wis

influenced by the ruling of the Attorney General of the State of

Washington that the suspension of the imposition of sentence follow- -

ed by an expungement does not result in a conviction for the putposes of the law which provides for the increased punishment of a ~

person.convicted after having been previously convicted. (The record does not show an expungement here.) We have pointéd out. if

2, state considers that a conviction exists for any one purpose, it is

immaterial in deportation proceedings that the state does not consider the conviction one for all purposes. Here the state has clearly

’ shown it considers a conviction to exist. (The fact that a convic- ~

tion may be or is expunged does not affect it for deportation purposes

where the charge is based on a conviction for a narcotics violation

(Kelty v. Immigration and Naturatization Service, supra; Carcia-

Gonzalez v. Immigration and Naturalization Service, supra; Burr v.

Immigration and Naturalization Service, supra; see In re Peola,

49 F. Supp. 128 N-D. Cal. (1953). But see United States v. Cunha,

209 F.2d 326, (1st Cir., 1954) (semble) ; Jn ve Ringnaldi, 48 F. Supp.

975 S.D. Cal. (1948) ; Matter of A—F—, 8 I. & N. Dec. 429, A.G.;

Matter of Kelly, Int. Dec. No. 1338).) The rule is otherwise for —

expungement of convictions resulting from nonnarcotic violations,

Matter of G—-, 9 I. & N. Dec. 159, A.G. (criticized, Burr v. Immigration and Naturalization Service, supra) ).

Tho special inquiry officer aleo relied upon the fact that Washington

courts have ruled that deferment of imposition of sentence is not 2

final judgment. A final judgment is not required for a conviction

to exist in a deportation proceeding (Matter of O—, supra pp. 551-

552). In Arrellano-Flores v. Hoy, supra, the court with knowledge

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Interim Decision #1528

of the fucb that there was no final judgment from which an appeal

could be taken, ruled that a conviction existed. Therefore, it is not

material that an order under the Suspended Sentence Act is final

and appealable and one under the Probation Act is not; a, conviction

for immigration purposes exists in each case. (In 2 study of procedures under the California law similar to the Washington law, we

noted thot no significance could be found from the: fact that one”

court suspended sentence end snother suspended the imposition, of

sentence (Matter of O—, supra, pp. 549-550) .) - .

‘Counsel calls attention to respondent’s cooperation with state and .

” federal narcotic agents, to the facts thab-he. is the father.of two

young citizen children and ‘that he is attempting @ reconciliation.

with his wife, and to the fact that he served honorably in the Armed -

Forces of the United States from 1959 to 1962. These facts are not

material in determining whether respondent is deportable as a

matter of law. They would be of importance in ‘determining whether respondent sould be ‘granted discretionary relief, however, in

view of his recent narcotics conviction, he does not appear to be eligible for either suspension of deportation (sections -101(b) (3) and

944 (a) (2), Immigration and. Nationality Act) or adjustment. of .

status ‘(sections 212(a) (23) and- 245, Immigration and Nationality

-Act). :

Respondent is deportable. The case will be returned to the special

inquiry officer so that he may enter an appropriate order after determining the proper country of deportation and the possibility of

physical persecution. .

ORDER: It is ordered that the order of the special inquiry officer

be and the same is hereby withdrawn. co

It is further ordered that the case be returned to the special inquiry

officer for further action not inconsistent. with what we have stated

in.our opinion. In the event respondent finds fault with the special

inquiry officer’s action in designating a place of deportation or determining 2 claim of physical persecution, the special inquiry officer

shall certify his order to this Board. :

APPENDIX “A”

The Suspended Sentence Act reads as follows:

9,92.060 Suspending sentences. Whenever any person shall be convicted of

any crime except murder, burglary in the frst degree, arson in the first

degree, robbery, carnal Imowledgo of a fomalo child under the age of ten

years, or rape, the court may in its discretion, at the time of imposing

sentezice upon such person, direct that such sentence be stayed and suspended

until otherwise ordered by such court, and that the sentenced person “be

placed mmder the charge of a parole or neace officer during the term of such

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Interim Decision #1528

" puspencion, upon such terms as tho court may determine: Provided, “hat

as a condition to suspension ef sentence, the court may require the convicted

person to make such monetary payments, on such terms as the court deems

appropriate under the ¢eireumstances, as are necessary (1). to comply with

ang order of the ennrt. for the payment of family supnort, (2) to ‘make

‘yestitution to diy person or persons who may have suffered loss or damage

by reason of the commission of the erime in question, and (3) to pay any

prosecution of the case, including relmbursement of the state for ‘costs of

extradition if return to this state by extradition was required, In no case

shall a sentence be suspended under the provisions of this section unless the

prisoner if sentenced to confinement in a penel institution be placed under

the charge of a parole officer, who is a duly appointed and acting officer of the

institution to which the person is sentenced.

APPENDIX “BY

The Probation Act reads as follows:

- 9.95200 Probation by court—Board to investigate. After conviction by

plea or verdict of guilty of any crime, the court upon application or its own

motion, may summarily grant or deny probation, or at a subsequent time

fixed may hear and determine, in the presence of the defendant, the matter

of probation of the defendant, and the conditions of such probation, if granted.

The court may, in its discretion, prior to the hearing on the granting of probation refer the matter to the board of prison terms and paroles or such

fine imposed and not suspended and the court or other costs incurred in the ©

officers as the board may designate for investigation and report to the court.

ata specified time, upon the circumstances surrounding the erime and con-

' cerning the defendant, his prior record, .and his family surroundings and

environment. In case there are no regularly employed ‘parole officers working

under the supervision of the board of prison terms‘and paroles in the county

or counties wherein the defendant is convicted by plea or verdict of guilty,”

the court may, in its discretion, refer the matter to the Prosecuting attorhey

n

or sheriff of the county for investigation and. report.

.9.95.210 Conditions may be imposed on prebation. The court in granting

probation, may suspend the imposing or the execution of Uke sentence and

may direct that such suspension may continue for such pericd of time, not .

exceeding the maximum term of sentence, except as hereinafter -set forth

and upon such terms and conditions as it shall determine. “os

The court in the order granting probation and as a. condition thereof, may

in its discretion imprison the defendant in the county jail for a period not

exceeding one year or may fine defendant any sum not exceeding one thousand dollars plus the costs of the action, and may in éonnection, with such

probation impose both imprisonment in the county jail and fine’ and court

costs. The court may also require the defendant to make such monetary

payments, on such terms as it deems appropriate under the circumstances,

as are necessary (1) to comply with any order of the court for the payment

of family support, (2) to make restitution to any nersnn or persans who may

have suffered loss or damage by reason of the commission of the crime in

question, and (3) to pay such fine as may be imposed and court costs, includ- ,

ing reimbursement of the state for eosts of extradition if return to this state

by extradition was ived, and may require hands for the faithful observance

406

~ «until otherwise grdered by court; under the Probation Act, suspen-"

_' sion of*thia imposition of sentence méy continue for a time not ex-

+. + Interim Decision #1528

of any and all conditions imposed in thé probation. The court shall order

the probationer to report to the board of prison terms“and paroles or such

officer as the board may designate and as a condition ‘of said probation to.

follow implicitly the instryetions of the board-of prison terms and paroles,

(he bonkd of prison terms and paroles will promulgate rules end regulations

‘for the conduct of such person during the term of his probation. © .

9.95320 Violation of probation—Rearrest—Imprisonment. Whenever the

state parole officer or ofher officer under whose supervision the probationer

has been- placed shall have reason to believe such probationer is violating,

the terms of his probation, or engaging in criminal practices, or is abandoned

to improper associates, or living a vicious life, he‘shall cause the probationer

to be brought before the court wherein the probation was. granted. For this

purpose any pence officer or state parole officer may xearrest any such persen

without warrant or other process. The court may thereupon in its discretion

without notice revoke’and terminate such probation. In the event the judg- —

ment has been pronounced by the court and the. executien thereof suspended,

. the court may revoke such suspension, whereupon the judgment shall be in full

force and effect, and the defendant shall he delivered fe the sheriff to be

transported to the penitentiary or xeformetory as the case may be. If the

; judgment has not been pronounced, the. court shell pronounce judgment after

such revocation of probation and the defendant shall be delivered to the -

sheriff to be transported to the pénitentiary or reformatory, in accordance

with the sentence imposed.

9.95.240, Dismissal of information or indictment after probation completed.

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

entire period-thereof,-or who shall hove been. discharged from probation prior

to the termination of the period thereof, may at ‘any time prior to the expiration of the maximum period of punishment for the offense far which he

has been ‘convicted be permitted in the discretion of the court to withdraw

his plea of guilty and enter a.plea of not guilty, or if be has been eonvicted

after a plea of not guilty, the court mey in. its diseretion set aside the

verdict of guilty; and in either case, the court may thereupon dismiss the

information or indictment against such defendant, who shall thereafter be

released from all penalties and. disabilities resulting from the offense of crime

bf which he has been convicted. The probationer shall be informed “of this

right in his probation papers: Provided, That in any subsequent prosecution, ©

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 information or indictment dismissed. : <:

APPENDIX “0”

A review -of the court cases construing the. Suspended Sentence

and Probation Acts has been-made. “Except that the Suspended Sen- .

tence Act is not available {pon éonviction for certain felonies, the

court, in its discretion, may elect to use either act; there is no confiict’ in. their provisions. Under the Buspended Sontence Act, the

suspended sentelice may be kept hanging over the person sentenced

”

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Interim Decision #1528

eceding the maximum term of sentence which could have heen imposed. Revocation of suspension of sentence or revocation of pro-

‘ bation of sentence has been deferred, must take place before the

court can take further action. If sentence to imprisonment is then

imposed, it runs from the date of imposition (Pitts v. Rhay, 392 P.2d

234 (1964); State v. Shannon, 376 P.2d 646 (1962) ; State v. Hssary,

375 P.2d 486 (1962); In re Jamie v. Rhay, 865 P.2d 772 (1961);

State v. Davis, 355 P.2d 344 (1960)). The order suspending execu-

‘ tion of sentence is final and appealable (State v. Liliopoulos, 5 P.2d

319 (1931); the order suspending the imposition of sentence is not

‘final judgment and is not appealable (State v. Shannon, supra).

Expungement of the record of conviction may follow the suspension

of execution of sentence as it does the suspension of imposition of

sentence (Ops Atty Gen, 61-62, No. 187). Expungement occurs only

after the court has dismissed the proceedings in accordance with the

statutory authority (Jamie v. Rhay, supra). Although the state has

designated the suspension of the imposition of such sentence as a

conviction, it is not, following an expungement, a conviction for the

purpose of oa law taking away the pension of a police officer who has

been convicted of a felony (Zembruell v. City of Seattle, 392 P.2d

453 (1964)}.

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