Interim Decision #3267

Interim Decision #3267

Interim Decision #3267

In re Fructoso LUVIANO-Rodriguez, Respondent1

File A92 569 244 - Los Angeles

Decided February 29, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A conviction for a violation of a firearms offense that has been expunged pursuant to section

1203.4 of the California Penal Code will not support a finding of deportability under section

241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2)(C) (1994). Matter of

Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966; A.G. 1967); and Matter of G-, 9 I&N Dec. 159

(BIA 1960; A.G. 1961), followed.

FOR RESPONDENT: Christine E. Stancill, Esquire, South Pasadena, California

BEFORE: Board En Banc: SCHMIDT, Chairman; VILLAGELIU, ROSENBERG,

MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: HEILMAN,

Board Member, joined by FILPPU and COLE, Board Members. Concurring and Dissenting

Opinion: HOLMES, Board Member, joined by DUNNE, Vice Chairman. Dissenting Opinion:

HURWITZ, Board Member, joined by VACCA, Board Member.

MATHON, Board Member:

In a decision dated April 26, 1994, the Immigration Judge found the

respondent deportable under section 241(a)(2)(C) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994), as an alien convicted of a

firearms offense, denied his request for voluntary departure, and ordered him

deported. The respondent appealed from that decision. On appeal, the

respondent has submitted new evidence and has requested that the proceedings be terminated or, in the alternative, that the record be remanded to the

Immigration Judge. The motion to remand will be granted and the record will

be remanded pursuant to 8 C.F.R. § 3.1(d)(2) (1995) for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a 26-year-old native and citizen of Mexico who entered

the United States on January 21, 1983. The record reflects that his status was

1 We note that the Board’s decision in this case is pending before the Attorney General upon

certification at the time of publication.

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adjusted to that of lawful permanent resident on December 1, 1990. It further

reflects that the respondent was convicted upon a plea of nolo contendere on

March 22, 1993, in the Municipal Court of Los Angeles Judicial District,

County of Los Angeles, State of California, of carrying a concealed weapon,

a .38 caliber handgun, in a vehicle, a misdemeanor under section

12025(A)(1) of the California Penal Code. On appeal and in connection with

a motion to remand, the respondent has submitted as additional evidence a

copy of an order from the California criminal court dated July 15, 1994, setting aside his plea and dismissing the concealed weapon complaint against

him pursuant to section 1203.4 of the California Penal Code.

At his deportation hearing, the respondent denied the allegation of the

Order to Show Cause and Notice of Hearing (Form I-221) that he was convicted of the above firearms offense, and he denied the charge of

deportability. Through counsel, the respondent sought adjournment of the

proceedings pursuant to Matter of Tinajero, 17 I&N Dec. 424 (BIA 1980), in

order to seek expungement of his conviction. The Immigration Judge denied

his request, noting that Matter of Tinajero, supra, did not apply to a firearms

offense, and found the respondent deportable as charged. He further concluded that the respondent was not statutorily eligible for the relief of voluntary departure.

II. ISSUES ON APPEAL

The respondent initially argues that the Immigration Judge erred in denying his request for a continuance to pursue expungement of his firearms conviction. He claims that the Immigration Judge improperly interpreted Matter

of Tinajero, supra, as applying only to crimes involving moral turpitude.

On appeal, he has submitted as additional evidence a copy of an order

from the California criminal court dated July 15, 1994, setting aside his plea

and dismissing the concealed weapon complaint against him pursuant to section 1203.4 of the California Penal Code. He asserts that his conviction has

therefore been eliminated as the basis for the charge of deportability and that

the proceedings should be terminated or, in the alternative, that the record

should be remanded to the Immigration Judge.

The respondent finally contends that the Immigration Judge erred in denying his request for voluntary departure. He claims that the Immigration Judge

improperly interpreted section 244(e)(1) of the Act, 8 U.S.C. § 1254(e)(1)

(1994), as precluding him from establishing statutory eligibility for that

relief. The respondent asserts that the statutory clause barring him from eligibility should be disregarded as inconsistent with the intent of the law and

that the merits of his application should be considered.

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III. DEFERRAL OF PROCEEDINGS PENDING

EXPUNGEMENT

Initially, we reject the respondent’s contention that the Immigration Judge

improperly denied his request for a continuance to seek expungement of his

conviction. Matter of Tinajero, supra, imposes no mandate on the Immigration Judge. Instead, it merely noted the Service’s policy to defer the institution of deportation proceedings in the case of aliens who are eligible to have

a criminal conviction expunged and granted a Service motion to remand pursuant to that policy. We have consistently declined to review the Service’s

exercise of its prosecutorial discretion. See Lopez-Tellez v. INS, 564 F.2d

1302 (9th Cir. 1977); Matter of Torres, 19 I&N Dec. 371 (BIA 1986), and

cases cited therein. In the present case, the Immigration Judge denied the

respondent’s motion for a continuance which had been opposed by the Service on the basis that the respondent’s conviction was for a firearms violation, and thus, Matter of Tinajero, supra, was inapplicable. The decision to

grant or deny a continuance is within the discretion of the Immigration Judge,

if good cause is shown, and that decision will not be overturned on appeal

unless it appears that the respondent was deprived of a full and fair hearing.

Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987); 8 C.F.R. § 242.13

(1995). Moreover, inasmuch as the respondent’s conviction for carrying a

concealed weapon has apparently been expunged and we are remanding the

record for further proceedings, as discussed below, no prejudice resulted

from the Immigration Judge’s denial of a continuance.

IV. EXPUNGEMENT OF A FIREARMS CONVICTION

We agree with the respondent that if his conviction has been expunged

pursuant to section 1203.4 of the California Penal Code he is no longer

deportable under section 241(a)(2)(C) of the Act as an alien convicted of a

firearms violation. For many years this Board has recognized that a criminal

conviction that has been expunged pursuant to section 1203.4 of the California Penal Code may not support an order of deportation. See Matter of

Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966; A.G. 1967); Matter of G-, 9

I&N Dec. 159 (BIA 1960; A.G. 1961), and cases cited therein. However, an

exception to this rule exists for expunged drug convictions. The Attorney

General has ruled that an alien convicted of a drug offense will be subject to

deportation even if the conviction has been expunged. See Matter of A-F-, 8

I&N Dec. 429 (BIA, A.G. 1959).

In Matter of A-F-, supra, the Attorney General declined to follow the general rule regarding expungements pursuant to section 1203.4 of the California Penal Code and stated that Congress did not intend for aliens convicted of

drug offenses to escape deportation on the basis of a state procedure authorizing a technical erasure of the conviction. In doing so, the Attorney General

created an exception to the line of cases by this Board ruling that a conviction

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which has been expunged pursuant to this same California statute could not

be made the basis for deportation proceedings because there was no longer a

record of conviction. See Matter of D-, 7 I&N Dec. 670 (BIA 1958); Matter

of H-, 6 I&N Dec. 619 (BIA 1955); Matter of E-V-, 5 I&N Dec. 194 (BIA

1953); Matter of O-T-, 4 I&N Dec. 265 (C.O. 1951). However, the Attorney

General specifically limited this exception to drug offenses. Matter of A-F-,

supra, at 445. Soon thereafter, this Board, and the Attorney General, again

confronted the effect of expungement of a conviction under section 1203.4 of

the Penal Code of California in a case that did not involve drugs. Matter of

G-, supra. The Attorney General agreed with our conclusion that his ruling

in Matter of A-F-, supra, should not be extended beyond drug cases. Matter

of G-, supra, at 168.

The Immigration Judge in this case ruled that a firearms conviction resembled a drug conviction more than it resembled a conviction for a crime

involving moral turpitude, and thus, expungement of such a conviction pursuant to section 1203.4 of the California Penal Code did not defeat

deportability. Therefore, the Immigration Judge expanded the Attorney General’s exception in Matter of A-F-, supra, to firearms violations in ruling that

an alien whose firearms conviction has been expunged remains deportable on

the basis of that conviction. Such a unilateral expansion of the rulings of the

Attorney General and this Board is inconsistent with 8 C.F.R. § 3.1(g).

Accordingly, we conclude that both the Board and the Immigration Judge

are bound by the Attorney General’s rulings in Matter of Ibarra-Obando,

supra, and Matter of G-, supra, which affirmed our precedent on nonnarcotic

cases that expungement under section 1203.4 of the California Penal Code

removes a criminal conviction as a basis for deportability. Since the respondent has submitted on appeal a copy of an order from a California criminal

court, apparently setting aside his plea and dismissing the concealed weapon

complaint pursuant to section 1203.4 of the California Penal Code, we will

remand the record to the Immigration Judge for further proceedings in accordance with this decision.

ORDER:

The motion to remand is granted. The record is

remanded to the Immigration Judge pursuant to 8 C.F.R. § 3.1(d)(2) for further proceedings in accordance with this decision.

CONCURRING OPINION: Michael J. Heilman, Board Member, in

which Lauri S. Filppu and Patricia A. Cole, Board Members, joined

I respectfully concur in the result reached in the majority opinion, but for

different reasons.

The majority of the Board has decided not to request that the Attorney

General reconsider what effect should be given to a conviction expunged

pursuant to section 1203.4 of the California Penal Code for immigration purposes. In view of this decision, I reluctantly agree with the majority that we

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are constrained to follow the Attorney General’s ruling in Matter of G-, 9

I&N Dec. 159 (BIA 1960; A.G. 1961), in this case.

As noted in the dissent, the expungement provisions of section 1203.4

have been significantly eroded, both by statutory amendment and judicial

interpretation, since the time of the Attorney General’s opinion in Matter of

G-, supra. At present, expungement of a conviction under that statute will not

relieve the convicted offender of the prohibition against possession of a concealed firearm, prevent the use of the conviction for purposes of subsequent

prosecution, or avoid the denial or revocation of numerous business and professional licenses as a consequence of the conviction. As a result of this

diminishment of its effect, section 1203.4 can no longer be regarded as a true

expungement statute. This conclusion is supported by the statements of both

the California state courts and the United States Court of Appeals for the

Ninth Circuit in the caselaw cited by the dissent.

Furthermore, in light of the Board’s decision in Matter of Ozkok, 19 I&N

Dec. 546 (BIA 1988), I believe that the question of the validity of a state

expungement for immigration purposes should be reconsidered. In Ozkok,

the Board found that the appropriate test for determining whether a conviction exists should revolve around the issues of establishment of guilt and

imposition of punishment, rather than the state’s characterization of its criminal procedures. In view of that standard, which the circuit courts have

approved as proper for purposes of interpreting the federal immigration laws,

I question whether expungement procedures, where guilt and punishment

generally precede the rehabilitative process, are effective to eliminate the

immigration consequences of an alien’s conviction.

However, the Attorney General has ruled that expungement of a conviction under section 1203.4 of the California Penal Code is valid to remove the

consequences of the offense for at least some types of crimes, i.e., those

which involve moral turpitude. Matter of G-, supra. Although I acknowledge

the force of the arguments presented in the dissent that neither that decision

nor Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959), is controlling, in my

view the Board is bound by one or the other of these opinions of the Attorney

General. Therefore, in the absence of agreement to certify the question of the

continuing recognition of an expungement under California law to the Attorney General, I find that I am required to make a choice as to which case

should be followed.

In Matter of G-, supra, the Attorney General stated that his holding in

Matter of A-F-, supra, was limited and that in other than narcotics cases, he

would continue his approval of the Board’s previous rule recognizing

expungements under section 1203.4 of the California Code. Although the

question of firearms convictions was not before the Attorney General in

either case, I accept the literal language of Matter of G- as the controlling

authority on this issue, absent certification to the Attorney General.

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In view of my opinion that section 1203.4 does not, in fact, expunge a conviction, I would request that the Attorney General reconsider the effect to be

given an expunged conviction in immigration proceedings. Because the

Board has chosen not to certify this decision to the Attorney General, however, I conclude for the reasons stated above that we are unable to deviate

from the prior ruling. I therefore must concur in the result reached by the

majority.

CONCURRING AND DISSENTING OPINION: David B. Holmes,

Board Member; in which Mary Maguire Dunne, Vice Chairman,

joined

I respectfully concur in part and dissent in part.

I.

I concur in the majority’s finding that the Immigration Judge did not err

in denying the respondent’s request for a continuance to seek an

“expungement” of his firearms conviction under section 1203.4 of the California Penal Code. In my view, the Immigration Judge properly concluded

that this case was not controlled by Matter of Tinajero, 17 I&N Dec. 424

(BIA 1980), which concerns the deferral of proceedings against aliens

deportable under section 241(a)(4) of the Immigration and Nationality Act, 8

U.S.C. § 1251(a)(4) (1976). However, if I agreed with the majority’s ultimate conclusion that the expungement of this respondent’s firearms offense

eliminated the basis for his deportability under section 241(a)(2)(C) of the

Act, 8 U.S.C. § 1251(a)(2)(C) (1994), then there would seem to be strong

arguments that the same policy considerations addressed in Matter of

Tinajero would be equally applicable here. This is not an issue I need further

address because I do not agree with the majority’s principal holding in this

case.

II.

I join in Section I of Board Member Hurwitz’ separate opinion and dissent

from the majority’s finding that an expungement of the respondent’s firearms

conviction under section 1203.4 of the California Penal Code would eliminate that conviction as the basis for a charge of deportability under section

241(a)(2)(C) of Act.

Both the majority and Board Member Heilman’s concurring opinion in

essence conclude that the Board’s “hands are tied” regarding this issue by

previous Attorney General decisions concerning the effect on deportability

of “expungements” under section 1203.4 of the California Penal Code. The

majority states that Immigration Judges and this Board “are bound by the

Attorney General’s rulings in Matter of Ibarra-Obando, [12 I&N Dec. 576

(BIA 1966; A.G. 1967)], and Matter of G-, [9 I&N Dec. 159 (BIA 1960; A.G.

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1961)], which affirmed our precedent on nonnarcotic cases that

expungement under section 1203.4 of the California Penal Code removes a

criminal conviction as a basis for deportability.”Board Member Heilman’s

concurring opinion states that the “literal language” of Matter of G-, supra, is

“controlling authority” on the issue before us, absent certification to the

Attorney General. I do not agree that the cited Attorney General decisions

mandate the conclusion reached by the majority. In my view, these Attorney

General decisions in fact support the exact opposite conclusion.

Administrative decisions addressing the effect in immigration proceedings of an “expungement” of a conviction under section 1203.4 of the California Penal Code have a long history dating back to at least 1943. See Matter

of O-T-, 4 I&N Dec. 265, 266 (C.O. 1951). A review of the decisions entered

during the intervening 53 years relating to the effect of “expungements”

under this section of California law perhaps raise as many questions as they

answer. However, two points relevant to the principal issue now before us

seem clear.

First, the Attorney General has not ruled that the mere fact that a conviction is “expunged” under section 1203.4 of the California Penal Code results

as a matter of law in there being no “conviction” whatever to support an order

of deportation. To the contrary, the Attorney General ruled in Matter of A-F-,

8 I&N Dec. 429 (BIA, A.G. 1959), that a finding of deportability based upon

conviction of a state narcotics offense was not affected by a “technical”

expungement under section 1203.4. Thus, the Attorney General’s continuing

support after Matter of A-F-, supra, for the position that an alien, whose conviction for a crime involving moral turpitude is expunged, is not an alien

“convicted” of a crime for the purposes of section 241(a)(4) of the Act necessarily implicated policy as well as legal considerations. Undoubtedly influential in this regard was the fact that this rule of the Board had been

longstanding even in 1961 and there “had been no Congressional signpost

pointing in the opposite direction.” Matter of G-, supra, at 169; see also Matter of Ibarra-Obando, supra, at 589.

Secondly, the Attorney General has never addressed the effect on

deportability under section 241(a)(2)(C) of the Act of an “expungement” of a

firearms conviction. The precise issue addressed and resolved by the Attorney General in Matter of G-, supra, is clear. In his decision in that case, the

Attorney General stated: “The issue to be decided here is whether an alien

who has sustained a conviction which is later expunged under [section

1203.4] is an ‘alien . . . who . . . is convicted of a crime . . .’ for the purposes of

section 241(a)(4) of the Immigration and Nationality Act.” Matter of G-,

supra, at 166 (second emphasis added). The resulting decision in Matter of

G- discusses the issue solely in the context of questions of deportability under

former sections 241(a)(4) and (11) of the Act, 8 U.S.C. §§ 1251(a)(4) and

(11) (1958). Similarly, in Matter of Ibarra-Obando, supra, the Attorney

General reaffirmed the “long-established administrative rule that a

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non-narcotics conviction which has been expunged pursuant to such state

procedure is not a ‘conviction’ for the purpose of section 241(a)(4) of the

Immigration and Nationality Act.” Id. at 588.

Thus, the Attorney General has ruled that the fact that there has been a

“technical” expungement of a conviction under section 1203.4 of the California Penal Code does not in itself mandate a finding that the conviction cannot

support any charge of deportability requiring a conviction. Rather, the effect

of such an expungement on a charge of deportability involves both legal and

policy considerations. And, the Attorney General has not addressed the effect

of the expungement of a firearms conviction on a charge of deportability

under section 241(a)(2)(C) of the Act.2 Accordingly, I neither understand

nor agree with the conclusion of the majority that the Attorney General has

already resolved the principal issue before us in this case.

Further, for the reasons set forth in section I of Board Member Hurwitz’

dissent, I would find a clear congressional “signpost” that aliens convicted of

weapons offenses should not escape deportation because of a state procedure

authorizing a “technical” erasure of the conviction. See Matter of A-F-,

supra, at 445-46. This is particularly true in view of the fact that Congress

has “progressively strengthened” the deportation laws dealing with aliens

convicted of such offenses. Id. The rationale expressed by the Attorney General in Matter of A-F- supports a finding of deportability in this case. Accordingly, I would affirm the Immigration Judge’s finding of deportability under

section 241(a)(2)(C) of the Act.

III.

I do not join in the remainder of Board Member Hurwitz’ dissent because I

do not find it necessary for the resolution of the issues before us and because

the broader questions addressed therein have neither been raised nor briefed

by the parties.

DISSENTING OPINION: Gerald S. Hurwitz, Board Member, in

which Fred W. Vacca, Board Member, joined

I respectfully dissent.

The question now before the Board is whether an alien whose firearms

conviction has been expunged pursuant to section 1203.4 of the California

Penal Code is deportable on the basis of that conviction. For the following

reasons, I would find that such an alien is deportable. I would also refer the

question to the Attorney General for her consideration.

2 The Attorney General similarly has not addressed the issue whether the “technical”

expungement of an “aggravated felony” conviction would preclude a finding of deportability

under section 241(a)(2)(A)(iii) of the Act.

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I. APPLICATION OF MATTER OF A-F- AND MATTER OF GTO FIREARMS CONVICTIONS

A review of the earliest cases involving expungements reveals that the initial inquiry regarding deportability was whether a conviction remained final

following its expungement under section 1203.4 of the California Penal

Code. It was determined that an expungement, considered to be equivalent to

a pardon, nullified the conviction, which would therefore not support a

deportation order. See Matter of S-R-, 7 I&N Dec. 495 (BIA 1957); Matter of

H-, 6 I&N Dec. 619 (BIA, A.G. 1955); Matter of E-V-, 5 I&N Dec. 194 (BIA

1953).

However, in Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959), the Attorney General viewed the expungement of a narcotics conviction under section

1203.4 in a different light. He disagreed with the Board’s conclusion that

there is “no conviction whatever to support an order of deportation” following expungement of a drug offense, finding that Congress did not intend for

aliens convicted of drug violations to escape deportation on the basis of a

state expunction procedure, which authorized only a “technical erasure of the

conviction.” Id. at 445. He based his conclusion on the “continuing and serious federal concern” regarding the proliferation of drug traffic, noting that

Congress had progressively strengthened the deportation laws dealing with

drug offenders. Id. at 445-46. Thus, he determined that in the face of this

“clear national policy,” the term “convicted” was not “flexible enough to permit an alien to take advantage of a technical ‘expungent’ [sic] which is the

product of a state procedure wherein the merits of the conviction and its

validity have no place.” Id. at 446.

The Attorney General further stated that Congress intended the inquiry

into whether a conviction exists to “stop at the point at which it is ascertained

that there has been a conviction in the normal sense in which the term is used

in federal law.” Matter A-F-, supra, at 446. Citing Berman v. United States,

302 U.S. 211 (1937), he indicated that the point of conviction is when the trial

court imposes sentence, even if it has only placed the defendant on probation,

which the Supreme Court had stated was “concerned with rehabilitation, not

with the determination of guilt.” Id. at 213. He therefore concluded that

unless the conviction was reversed by the usual appellate process, it was

immaterial that the record of conviction was cancelled by a state expunction

procedure.

Subsequent to the decision in Matter of A-F-, however, the Attorney General again addressed the issue of expungements in Matter of G-, 9 I&N Dec.

159 (BIA 1960; A.G. 1961). He stated there that his disagreement with the

Board’s analysis regarding the existence of a conviction following

expungement was limited to narcotics cases. The Attorney General also

relied on the Supreme Court’s decision in Pino v. Landon, 349 U.S. 901

(1955), for two propositions. First, he concluded that Pino rejected the view

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that a determination whether a conviction exists for immigration purposes is

purely a “federal question.” In addition, he stated that the procedure for setting aside a conviction under section 1203.4 of the California Penal Code

moves it “farther away from an area of finality” than the Massachusetts “on

file” procedure, which was considered to have insufficient finality to support

an order of deportation in Pino. Matter of G-, supra, at 169. Thus, he concluded that an alien convicted of a crime involving moral turpitude that had

been expunged under the California expunction statute did not have a “conviction” for immigration purposes.

There appear to be several areas of tension that arise from these two holdings of the Attorney General. The first deals with whether the effect to be

given to a state expungement should be decided as a matter of law or policy.

In Matter of G- and its predecessor decisions, the question seemed to be one

of legal interpretation, whereas in Matter of A-F-, the Attorney General made

a policy determination based on an assessment of congressional intent. Next,

there is the question of finality of the conviction. According to Matter of G-,

there was no finality following expungement because the finding of guilt was

set aside. However, in Matter of A-F-, imposition of sentence and probation

was considered the point of finality, absent appellate scrutiny, since the cancellation of a conviction by a procedure that had no regard for its merits was

not deemed effective to prevent deportation. Finally, there is the issue of

whether the existence of a conviction for immigration purposes should be

determined according to federal or state law. The idea that the construction of

the immigration laws was purely a federal question was rejected in Matter of

G-, but in Matter of A-F-, the Attorney General declined to make the

deportability of an alien dependent on “the vagaries of state law.” Matter of

A-F-, supra, at 446.

In view of the tensions between these two decisions, it is unclear whether

the rationale of Matter of G- or Matter of A-F- should be applied in deciding

the effect to be given to expungements of firearms convictions. Furthermore,

although Matter of G- characterized the ruling in Matter of A-F- regarding

narcotics expungements as a limited departure from the prior Board position

that an expungement eliminates a conviction for immigration purposes, all

previous published decisions on this point dealt exclusively with crimes

involving moral turpitude. Therefore, the issue whether a firearms

expungement is valid to prevent deportation was not, in fact, before the

Attorney General in either case. See Matter of G-, supra, at 166-67 (noting

that the issue presented was whether an alien was deportable under former

section 241(a)(4) of the Act, 8 U.S.C. § 1251(a)(4) (1958), which related to

crimes involving moral turpitude). Consequently, it appears to be an open

question whether an expunged firearms conviction falls within the general

rule espoused in Matter of G- or is a matter of such serious national

concern as to merit an exception akin to that made for narcotics convictions

in Matter of A-F-. For the following reasons, I find that firearms convictions

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are comparable to drug violations and that the rationale of Matter of A-Fshould govern.

Many years have passed since the decisions in Matter of G- and Matter of

A-F- were rendered. In the meantime, Congress has made important revisions in the immigration laws regarding firearms violations. Prior to 1988, an

alien was deportable for a firearms violation only if he was convicted of

unlawfully possessing or carrying an automatic or semiautomatic weapon or

a sawed-off shotgun. See former section 241(a)(14) of the Act, 8 U.S.C.

§ 1251(a)(14) (1982). The Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, 102 Stat. 4181, expanded the list of weapons specified in the statute

to include, in addition, any firearm or destructive device or any revolver. The

statute was amended again by the Immigration Act of 1990, Pub. L. No.

101-649, 104 Stat. 4978. With the passage of that law, the types of violations

that render an alien deportable were greatly increased, and the list of weapons

within the scope of the statute was replaced with one broad federal definition

of a “firearm or destructive device.” See section 241(a)(2)(C) of the Act; see

also 18 U.S.C. § 921(a) (1994); Matter of Chow, 20 I&N Dec. 647 (BIA

1993), aff’d, 12 F.3d 34 (5th Cir. 1993). Furthermore, Congress has created a

new classification of serious criminal offenses, namely aggravated felonies,

which subject an alien to deportation and bar him from many forms of relief.

Included in this category are illicit trafficking in firearms and several federal

crimes relating to firearms offenses. See section 101(a)(43)(E) of the Act, 8

U.S.C. § 1101(a)(43)(E) (1994).1

At the time the decisions on expungement were rendered, the Attorney

General did not address what effect an expungement under state law would

have on a firearms conviction of an alien in immigration proceedings. In the

interim Congress has significantly broadened the scope of the deportation

provisions regarding firearms violations in response to national concerns

about the increasing violent use of guns.2 In view of these changes in the

immigration laws, it is apparent that Congress considers firearms violations

1 The Board has not yet determined if an expunged conviction for an aggravated felony will

support a charge of deportability under section 241(a)(2)(A)(iii) of the Act. However, I note

that Congress has shown its clear intent to deal strictly with aliens convicted of such a crime.

For example, Congress mandated that aggravated felons should be subject to expedited

deportation proceedings. Section 242A(a)(1) of the Act, 8 U.S.C. § 1252a(a)(1) (1994). In

addition, severe limitations have been imposed on the discretionary relief available to

aggravated felons. See, e.g., section 244(e)(2) of the Act, 8 U.S.C. § 1254(e)(2)

(1994)(voluntary departure); Matter of Gomez-Giraldo, 20 I&N Dec. 957 (BIA 1995) (waiver

of inadmissibility); Matter of D-, 20 I&N Dec. 827 (BIA 1994) (asylum and withholding of

deportation). I further note in this regard that Congress has progressively expanded the list of

crimes considered to be aggravated felonies.

2 I note also that there are no waivers permitting an alien to avoid deportability for a firearms

conviction. Furthermore, a pardon, with which an expungement was formerly equated, does

not eliminate deportability for either drug or firearms offenses. See section 241(a)(2)(A)(iv) of

the Act.

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to be a matter of serious concern to the welfare of this country. Therefore, I

conclude that convictions for firearms offenses, which pose a threat to our

nation comparable to that of drug violations, should not be eliminated for

immigration purposes by expungement pursuant to a state statute. In support

of this conclusion, I observe that the only circuit court to have addressed the

issue decided that an expunged firearms conviction does not prevent a finding of deportability. Gutierrez-Rubio v. INS, 453 F.2d 1243 (5th Cir.), cert.

denied, 408 U.S. 926 (1972).

II. EROSION OF THE CALIFORNIA EXPUNGEMENT LAW

The purpose of expungement statutes is to mitigate the collateral effects of a

conviction for purposes of rehabilitation. See Bryant H. Byrnes, Expungement

in California: Legislative Neglect and Judicial Abuse of the Statutory Mitigation of Felony Convictions, 12 U.S.F. L. Rev. 155, 157 (1977). However, section 1203.4 of the California Penal Code currently contains so many

exceptions that its actual rehabilitative effect is questionable. Id. at 158.

At the time of its inception, the California statute was intended to allow

convicted defendants to avoid the permanent stigma of a conviction, but it

was soon subject to erosion and narrow construction. Id. at 167-68. For

example, in Meyer v. Board of Medical Examiners, 206 P.2d 1085, 1087

(Cal. 1949), the Supreme Court of California held that the legislature did not

intend for an expungement to “obliterat[e] the fact that the defendant had

been finally adjudged guilty of a crime” and concluded that a physician’s

license could therefore be suspended on the basis of an expunged conviction.

The California legislature subsequently codified the court’s ruling and added

several other restrictive provisions. See Bryant H. Byrnes, supra, at 168-69.

Thus, when the Attorney General rendered his decision in Matter of G-,

supra, an expungement pursuant to the statute would not prevent the use of a

conviction for purposes of a subsequent prosecution, the revocation of a

driver’s license, or the denial or revocation of several occupational and professional licenses, such as licenses to practice law and medicine or to teach in

a public school. See Matter of G-, supra, at 166.

However, the scope of the California statute has been even further eroded

since that time, both by legislation and judicial interpretation. For example,

in Matter of G-, supra, the Attorney General specifically mentioned that an

offender was relieved from prohibition against possession of a firearm by

expungement under section 1203.4. As a result of a subsequent statutory

amendment, however, individuals whose convictions have been expunged

under that statute are no longer permitted to possess a concealable weapon.

Cal. Penal Code § 1203.4(a) (1995).

The California Business and Professional Code also currently provides that

a license regulated by that code may be denied on the basis of a conviction,

irrespective of an order of expungement pursuant to section 1203.4. See Cal.

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Bus. & Prof. Code § 480 (1995). Among the specific business and professional licenses that may be denied, revoked, or suspended as a result of a conviction, regardless of its expungement under section 1203.4, are those

required of dentists, opticians, psychologists, accountants, guide dog trainers,

barbers and cosmetologists, electronic and appliance repair dealers, real estate

agents, and mineral, oil, and gas brokers. Cal. Bus. & Prof. Code §§ 1607.1,

2555.1, 2963, 5106, 7211.2, 7405, 9853, 10177, 10562 (1995).

California caselaw that was decided after Matter of G-, supra, also illustrates how the effectiveness of section 1203.4 has been further limited. In

Copeland v. Dept. of Alcoholic Bev. Control, 50 Cal.Rptr. 452 (Cal. Dist. Ct.

App. 1966), the revocation of a license to sell alcoholic beverages was upheld

on the basis of an expunged conviction despite the absence of a specific statutory exemption. The court found that the penalties and disabilities released by

section 1203.4 related only to criminal matters, not to proceedings to suspend

or revoke business or professional licenses. See also Ready v. Grady, 52

Cal.Rptr. 303 (Cal. Dist. Ct. App. 1966) (upholding the revocation of an

insurance agent’s license). This proposition was more recently reiterated in

Adams v. County of Sacramento, 1 Cal.Rptr.2d 138 (Cal. Ct. App. 1991),

where the court concluded that preclusion from employment as a peace officer was not the kind of penalty or disability which was eliminated by

expungement because the purpose of the preclusion was to protect the public

rather than to punish the convicted felon.

The California courts have concluded that an expungement under section

1203.4 does not “eradicate a conviction or purge the defendant of the guilt

established thereby.” Adams v. County of Sacramento, supra, at 141; see also

Meyer v. Board of Medical Examiners, supra; In re Phillips, 109 P.2d 344

(Cal. 1941). They have also determined that only criminal, rather than civil,

penalties and disabilities are relieved by section 1203.4. See, e.g., Adams v.

County of Sacramento, supra, and cases cited therein; see also Notes and

Comments, The Effect of Expungement on a Criminal Conviction, 40 S. Cal.

L. Rev. 127, 144 (1967). The California legislature has endorsed this view by

passing numerous limitations on the scope of the statute. As a result, the

impact of an expungement under section 1203.4 has been so diluted that it is

no longer effective to remove the stigma of a conviction. 3 Bryant H. Byrnes,

3 I note that the true rehabilitative measure of an expungement under California law has also

been minimized by the expanded availability of the benefits of section 1203.4. Initially, relief

under the statute was limited to felons who received and completed probation, which was only

granted to first offenders, i.e., those who were most likely to be successfully reformed. See

Bryant H. Byrnes, supra, at 171; Notes and Comments, supra, at 143. Under the current statute,

expungement is available to any defendant who has fulfilled the conditions of probation or has

been discharged prior to the termination of his probation, or “in any other case in which a court,

in its discretion and the interests of justice” determines that relief should be granted. Cal. Penal

Code § 1203.4 (West 1995). The effect of offering the rewards of section 1203.4 to all

offenders has been to further devalue the significance of an expungement. See Bryant H.

Byrnes, supra, at 171.

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supra, at 171. I find it significant that California now refuses to recognize

expungements under section 1203.4 as having any effect for so many purposes, and I question the validity of such expungements for immigration purposes. Finally, I note that the United States Court of Appeals for the Ninth

Circuit has concurred that it is “sheer fiction to say that the conviction is

‘wiped out’ or ‘expunged’” pursuant to the California statute. Garcia-Gonzales v. INS, 344 F.2d 804, 808 (9th Cir.), cert. denied, 382 U.S. 840

(1965).

III. CHANGED INTERPRETATION OF THE TERM

“CONVICTION” UNDER MATTER OF OZKOK

In Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), this Board reviewed the

historical development of the question of what constitutes a final “conviction” for immigration purposes. We noted that the standards applied since the

1950s were no longer appropriate due to the numerous and varied state criminal procedures that had evolved in the meantime. Under these state laws, differing terminology was used to define a conviction and the multitude of

procedures that had been created to ameliorate the consequences of a conviction. These variations in how the states characterized a “conviction” and our

dependence on a state definition for immigration purposes had led to anomalous and unfair results. Thus, we noted that due to the differences in state

penal laws, some aliens, who were clearly guilty of criminal misconduct and

whom Congress intended to be considered “convicted,” had been allowed to

escape deportation, while others, guilty of the same offense, were deportable.

We therefore found it necessary to create a new standard which would provide uniformity in the application of our federal laws, while implementing

the will of Congress to deport aliens guilty of crime.4

In seeking to determine a fair standard, we considered the basic elements

necessary for the consequences of a conviction to attach. We formulated a

test under which a person was deemed convicted when guilt had been established and some punishment for the criminal conduct had been imposed,

unless further proceedings were available to reassess the question of guilt or

innocence. By looking to these essential, universal elements of a conviction

rather than to each individual state’s characterization of that term, we insured

that aliens who had been treated by their respective states as though they had

been convicted were considered to have been convicted for immigration purposes. In light of our decision in Matter of Ozkok, supra, I believe that a reexamination of our view of expungements is appropriate.

4 Several of the circuit courts have given their specific approval to our reliance in Matter of

Ozkok, supra, on the concepts of equal treatment and the propriety of a federal standard. See

Wilson v. INS, 43 F.3d 211 (5th Cir.), cert. denied, 116 S. Ct. 59 (1995); White v. INS, 17 F.3d

475 (1st Cir. 1994); Yanez-Popp v. United States INS, 998 F.2d 231 (4th Cir. 1993); Molina v.

INS, 981 F.2d 14 (1st Cir. 1992); Chong v. INS, 890 F.2d 284 (11th Cir. 1989).

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The term “expungement” has been applied to a number of state rehabilitative procedures which have been called by a variety of names. See, e.g., Idaho

Code § 19-2604 (1994) (discharge of defendant); Mich. Comp. Laws Ann.

§ 780.621 (West 1994) (motion to set aside conviction); Minn. Stat. Ann.

§ 638.02 (West 1994) (pardon extraordinary); Nev. Rev. Stat. § 176.225

(1993) (honorable discharge from probation); N.Y. Correct. Law § 701

(McKinney 1994) (certificate of relief from disabilities); Ohio Rev. Code

Ann. § 2953.32 (Baldwin 1995) (sealing of records of first offense); Or. Rev.

Stat. § 137.225 (1994) (post-judgment procedures). Many of these procedures, including California’s, do not, in fact, result in a true expungement of

the conviction, but rather reward good behavior by releasing the defendant

from certain penalties and disabilities following successful probation. See

Garcia-Gonzales v. INS, supra; Notes and Comments, supra, at 132. As previously discussed, expungement in California under section 1203.4 is ineffective for numerous purposes. Many other states also permit the use of an

“expunged” conviction to prove the fact of a prior conviction in subsequent

criminal proceedings, to preclude possession of firearms, and to determine a

person’s qualifications for employment and licensing. See, e.g., Kan. Stat.

Ann. § 21-4619 (1993); Minn. Stat. Ann. § 638.02 (West 1994); Nev. Rev.

Stat. § 176.225 (1993); N.Y. Correct. Law § 701 (McKinney 1994); Ohio

Rev. Code Ann. § 2953.32 (Baldwin 1995); Wash. Rev. Code Ann.

§ 9.95.240 (West 1994).

Generally, before a conviction can be “expunged,” the defendant must

necessarily have pled guilty or nolo contendere or been found guilty of a

crime. A sentence to confinement or probation must also have been completed, or probation terminated prior to completion. Therefore, the elements

of guilt and punishment are both present, and there is nothing further required

to render the conviction final.

I find it anomalous that a convicted alien, whose guilt of a criminal offense

is unquestioned, who has been subjected to punishment, and whose

expunged conviction still carries with it many of the consequences of a conviction under state law may be permitted to avoid deportation simply because

the state chooses to reward his good behavior by releasing him from some of

the penalties otherwise imposed on convicted persons. See Gonzalez de Lara

v. United States, 439 F.2d 1316 (5th Cir. 1971); Garcia-Gonzales v. INS,

supra; Matter of A-F-, supra. Applying the rationale of Matter of Ozkok,

supra, I believe that such an alien should bear the immigration consequences

of his conviction.

IV. PRINCIPLES OF FEDERALISM

In Matter of A-F-, supra, the Attorney General concluded that narcotics

violators could not avoid deportation by means of a state procedure authorizing a technical erasure of the conviction because the deportability of an alien

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should not be dependent upon the “vagaries of state law.” Id. at 446. The

Attorney General’s opinion in Matter of A-F- was noted with specific

approval by the United States Courts of Appeals for the First and Ninth Circuits. See Kolios v. INS, 532 F.2d 786 (1st Cir.), cert. denied, 429 U.S. 884

(1976); Kelly v. INS, 349 F.2d 473 (9th Cir.), cert. denied, 382 U.S. 932

(1965); Garcia-Gonzales v. INS, supra. In Gonzalez de Lara v. United States,

supra, the Fifth Circuit also agreed that a state expungement procedure was

not effective to eliminate a drug conviction for immigration purposes, noting

that the manner in which a state deals with a person after his conviction is not

controlling in a deportation proceeding, which is a matter of federal rather

than state law. In reaching this conclusion, the court relied on the rationale of

the Ninth Circuit in de la Cruz-Martinez v. INS, 404 F.2d 1198 (9th Cir.

1968), cert. denied, 394 U.S. 955 (1969), where the court stated:

Deportation is a function of federal and not of state law. In the context of a narcotics conviction, deportation is a punishment independent from any that may or may not be imposed by

the states. While it is true that the same event, the state conviction, triggers both sets of consequences, it would be anomalous for a federal action based on a state conviction to be controlled by how the state chooses to subsequently treat the event. It is the fact of state

conviction, not the manner of state punishment for conviction, that is crucial.

Id. at 1200 (emphasis added).

Other circuit courts have also adopted the principle that Congress intended

the determination whether an alien has been “convicted” for immigration

purposes to be made pursuant to federal law and policies rather than pursuant

to the various procedures prescribed by state law. See Yanez-Popp v. United

States INS, 998 F.2d 231 (4th Cir. 1993); Chong v. INS, 890 F.2d 284 (11th

Cir. 1989); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert.

denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th Cir. 1971); see

also Rehman v. INS, 544 F.2d 71 (2d Cir. 1976) (noting that construction of a

term in immigration statutes is an issue of federal law, yet holding that

enforcement of federal deportation laws would not be undermined by recognition of state policy similar to federal leniency policies). See generally

Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983) (holding that

the determination whether a conviction exists for purposes of federal gun

control laws is a question of federal, not state law, despite the fact that

the predicate offense and its punishment are defined by state law). 5 This

5 I note that Congress expressed its disagreement with the Supreme Court’s decision in

Dickerson by amending the gun control statute to provide that a conviction should be defined in

accordance with the laws where the criminal proceedings are held. See Firearm Owners’

Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986). However, Dickerson has still been

relied on by the circuit courts for the general proposition that federal law governs the

application of congressional statutes in the absence of plain language to the contrary. See

Yanez-Popp v. United States INS, supra, at 236, and cases cited therein. The Fourth Circuit

stated in Yanez-Popp that by overruling Dickerson, Congress merely provided the contrary

indication that state, not federal law, applies in interpreting the federal gun control statute. The

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principle, that federal law is controlling in the interpretation of the immigration laws, has also been recently reaffirmed by the First, Fifth, and Ninth Circuits. Wilson v. INS, 43 F.3d 211 (5th Cir.), cert. denied, 116 S. Ct. 59 (1995);

Paredes-Urrestarazu v. United States INS, 36 F.3d 801 (9th Cir. 1994);

Molina v. INS, 981 F.2d 14 (1st Cir. 1992); Yazdchi v. INS, 878 F.2d 166 (5th

Cir.), cert. denied, 493 U.S. 978 (1989).

In regard to the specific issue now before us, the Fifth Circuit has affirmed

a decision of this Board in which we concluded that the finality of a firearms

conviction was not vitiated for deportation purposes by an expungement pursuant to Texas law. Gutierrez-Rubio v. INS, supra. Citing its prior opinion in

Gonzalez de Lara v. United States, supra, the court rejected the alien’s argument that its holding in the previous case, i.e., that an expunged conviction is

not eliminated as a ground for deportation, should be limited to narcotics violations. Instead, the court stated that it had previously relied on the “principles of federalism,” which it found were “in no way bounded by the nature of

the offense involved.” Gutierrez-Rubio v. INS, supra, at 1244. Thus the Fifth

Circuit concluded that “[t]he manner in which Texas chooses to deal with a

party subsequent to his conviction is simply not of controlling importance

insofar as a deportation proceeding—a function of federal, not state, law—is

concerned.” Id. at 1244 (quoting Gonzalez de Lara v. United States, supra, at

1318).

In cases involving matters other than immigration law, the Fifth Circuit

has relied on this principle of federalism to find that federal law controls the

definition of the term “conviction.” Thus, in United States v. Gray, 692 F.2d

352 (5th Cir. 1982), the court held that federal firearm provisions, which are

keyed to the fact of a state conviction, are independent of state law procedures for vacating a conviction upon completion of probation. See also

United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980) (rejecting the assertion that no prior conviction existed for a federal firearms violation because

the conviction was not considered final under Texas law); United States v.

Padia, 584 F.2d 85 (5th Cir. 1978) (refusing to recognize the effect of a state

expungement, with reliance on Gonzalez de Lara for the proposition that

state action subsequent to a conviction is not controlling where federal gun

control law is concerned).

Similarly, the Ninth Circuit has clearly expressed its view that federal statutes were intended to have uniform application and should not be made to

depend on the variations in state law. See, e.g., United States v. Bergeman,

592 F.2d 533 (9th Cir. 1979) (holding that a state expungement does not

change the status of a person as a convicted felon for purposes of federal gun

control law); Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978) (finding that a

court noted, moreover, that Congress had not overruled the Board’s decision in Matter of

Ozkok, supra, which held that for immigration purposes, federal law should be used to define

the term “conviction.” See also Wilson v. INS, supra; Molina v. INS, supra.

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state exception from gun laws regarding the legality of an act has no impact

on federal prohibition of the same act); Burr v. INS, 350 F.2d 87 (9th Cir.

1965) (finding that federal deportation statute does not depend on the

nuances of state expungement), cert. denied, 383 U.S. 915 (1966); Gutierrez

v. INS, 323 F.2d 593 (9th Cir. 1963) (noting that Congress intended to do its

own defining in finding a state conviction final for immigration purposes),

cert. denied, 377 U.S. 910 (1964); Adams v. United States, 299 F.2d 327 (9th

Cir. 1962) (holding that uniform application of federal law precludes excusing a person whose narcotics conviction was expunged from the federal registration requirement for international travel); see also United States v. Potts,

528 F.2d 883, 887 (9th Cir. 1975) (concluding that Congress chose to consider state expungement statutes “irrelevant” to the interpretation of a federal

firearms statute in agreeing with the majority opinion that an expunged conviction could be used to obtain a subsequent conviction under federal law)

(Sneed, J. concurring).

Thus, in Burr v. INS, supra, the Ninth Circuit rejected an alien’s assertion

that the expungement under California law of his conviction for a crime

involving moral turpitude would eliminate it for deportation purposes.

According to the court, the rationale stated in previous narcotics cases

regarding Congress’ intent to have uniform application of federal laws was

equally applicable where the deportation was based on a crime involving

moral turpitude. See Kelly v. INS, supra; Garcia-Gonzales v. INS, supra.

This holding was subsequently reiterated in Ocon-Perez v. INS, 550 F.2d

1153 (9th Cir. 1977), where the court stated that the alien’s convictions for

crimes involving moral turpitude would retain their vitality for deportation

purposes even if they were expunged.

This pattern of decisions, which indicates that federal issues should be

adjudicated in a uniform manner, lends considerable weight to the position

that state expunction provisions are ineffective to vitiate a conviction for federal immigration purposes.

V. CONCLUSIONS

The decisions in Matter of G-, supra, and Matter of A-F-, supra, addressed

only the effect of expungement of a conviction for crimes involving moral

turpitude and drug violations. The Attorney General has not determined the

issue of expungement of firearms convictions. I therefore do not agree with

the majority that we are bound by Matter of G- in deciding the effect of an

expunged firearms conviction.

Moreover, many changes have occurred since the Attorney General’s

decisions in Matter of G- and Matter of A-F-. Not only has Congress revised

the immigration laws on firearms violations, but the California expungement

statute on which the Attorney General’s opinions were based has been significantly weakened in its effect. Furthermore, our own interpretation of what

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constitutes a final conviction for immigration purposes has been amended.

Finally, the courts have given their approval to the Attorney General’s reasoning in Matter of A-F that the federal question of deportability should not

be controlled by the “vagaries of state law” and that Congress did not intend

for an alien to avoid deportation on the basis of a state expunction procedure.

Matter of A-F-, supra, at 446.

In view of the strict treatment of Congress toward aliens who commit firearms offenses, I would find that an expunged firearms conviction is not eliminated for immigration purposes. Furthermore, I conclude that the effect of

the procedure under section 1203.4 of the California Penal Code on the status

of a convicted person has become so diluted that an expungement under that

statute is not effective to eliminate an alien’s conviction for immigration purposes. Finally, in view of the position of this Board and the circuit courts on

the question of whether a state action constitutes a conviction for immigration purposes, I believe it is appropriate for the Attorney General to reconsider the effect of all state expungements on convictions for immigration

purposes.

Accordingly, I would dismiss the appeal and refer the issue to the Attorney

General for reconsideration of Matter of G-, supra, and Matter of A-F-,

supra.

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