Interim Decision X2052

Interim Decision X2052

MATTER OF SIRHAN, ET AL.

In Deportation Proceedings

A-10711879

A-13598200

A-13578469

Decided by Board June 19, 1970

(1) In deportation proceedings a collateral attack may be made on a criminal court judgment on the question of jurisdiction.

(2) Where an alien was charged with deportability under section 241(a) (4)

of the Immigration and Nationality Act on the basis of a criminal conviction in California in 1966 for which he was sentenced for one year, with

sentence suspended; thereafter the court by order modified the sentence to

less than a year; and subsequently the conviction was expunged in 1969,

the deportation proceedings are terminated on the basis of the expungement (which eliminates the conviction as a deportation ground) rather

than as improvidently begun, since to a prospective employer or other person the latter may lend itself to the erroneous inference that proceedings

were terminated as a matter of administrative discretion, rather than because the alien is not deportable.

(3) Since authority lies with the superior court of California, through the

writ of coram nobis, to enter an order vacating an alien's prior conviction

in that court of violation of California marijuana laws and certifying the

case to the juvenile court, which accepted the alien as a ward, deportation

proceedings against the alien under section 241 (a) (11) of the Act are terminated since the conviction which formed the basis of deportability no

longer exists, having been vacated.

17H ARGES

Order: Act of 1952—Se'ction 241(a) (11) [8 U.S.C. 1251(a) (11) ]—Convicted of violation of marijuana law.

[SIRHAN, RODRIGUEZ-RODRIGUEZ]

Order:Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Convicted

of crime committed within five years after entry

and sentenced to a year or more.

[TALAVERA-ARREDONDO]

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Interim Decision #2052

ON BEHALF OF RESPONDENTS:'

SIRHAN:

David C. Marcus, Esquire

215 West Fifth Street

Los Angeles, California 90013

(Brief filed in lieu of aopearance at oral argument)

ON BEHALF OF SERVICE:

R. A. Vielhaber

Appellate Trial Attorney

(Filed brief in each case

and was heard in oral argument in SIRHAN)

Also, in SIRHAN, and

RODRIGUEZ-RODRIGUEZ :

RODRIGUEZ-RODRIGUEZ :

Luis H. Garcia, Esquire

304 S. Broadway, Rm. 217

Los Angeles, California 90013

William S. Howell

Trial Attorney

(Filed brief in each case)

Also, in TALAVERA-ARREDONDO:

Sam I. Feldman

Trial Attorney

(Filed brief)

TALAVERA-ARREDONDO:

Agnes P. Matica, Representative

International Institute of

Los Angeles

435 S. Boyle Avenue

Los Angeles, California 90033

These cases were tried separately before different special inquiry officers. Because the same issue is raised in each, we shall

consider them jointly. We shall approve the special inquiry

officer's termination of proceedings in each case.

These deportation cases are based on convictions which were

subsequently changed or vacated by the courts in which the convictions occurred. The Service contends that the courts had no jurisdiction to enter the subsequent orders.

If the subsequent orders are void, the original convictions can

serve as the basis for deportation orders except in Talavera's case

where the conviction has been expunged. If the subsequent orders

of the courts are to be given effect, the original convictions cannot serve as the basis for the deportation of Sirhan and Rodriguez.

In Sirhan and Rodriguez, we consider these questions : May we

determine whether the courts had jurisdiction to enter the subsequent orders? If so, did the courts have the jurisdiction to enter

them? If they had jurisdiction, are the aliens, nevertheless, deportable on the basis of the original convictions?

In Talavera, we consider these questions: Should the case be

terminated, as requested by the District Director, on the ground

that he improvidently started the case; or, as found by the special

inquiry officer and is asked by counsel, on the ground that the

subsequent order of the court eliminated the original order for

deportation purposes? Should we terminate on the ground that

the expungement eliminated the conviction for deportation purposes?

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Interim Decision #2052

The individual cases will be briefly set forth. The special inquiry officer's orders state the facts fully.

Sirhan and Rodriguez were each separately convicted for violation of marijuana laws in a California superior court. Each was

charged in deportation proceedings with being deportable by reason of his conviction. In each case, the court then vacated the

conviction and certified the case to the juvenile court which accepted the alien as a ward. A person treated as a juvenile is not

considered a person convicted of crime. The special inquiry

officers held that the convictions on which the orders to show

cause were issued no longer existed. They therefore terminated

proceedings.

Talavera was convicted in a California superior court in April

1966 for issuing a check without sufficient funds. In May, he was

sentenced to imprisonment for one year. The sentence was suspended. Deportation proceedings were instituted. In October, the

court modified the sentence to make the term of imprisonment

less than a year. The conviction was expunged in May 1969. The

special inquiry officer terminated proceedings on the ground that

the modified order removed respondent from the class of deportable aliens since he was no longer an alien sentenced to a year or

more. The Service believes that the effect of the modified order is

a moot question because the expungement has removed the conviction as the basis for deportation; but it asks that the deportation proceedings be terminated on the ground that they were improvidently begun.

The State of California was represented at the sessions of

court when the changes in 'the court orders were made. The

change in Sirhan was made by a judge other than the one who

entered the original order. The changes in the other cases were

made by the same judges who entered the original orders. In Sirhan, a motion to vacate was made by counsel. In Rodriguez, the

court vacated the conviction on its own motion. In Talavera, the

modification was apparently made as a result of a motion or recommendation by Talavera's probation officer or the oral motion of

counsel.

HAS THE BOARD THE POWER TO ENTERTAIN A COLLATERAL

ATTACK ON THE JUDGEMENT OF A CRIMINAL COURT?

In determining whether an alien is deportable, the immigration

authorities cannot go behind a judicial record to determine the

guilt or innocence of the alien, U.S. ex rel. Mylius v. Uhl, 210 F.

860 (2 Cir., 1914). However, guilt or innocence is not involved

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Interim Decision *2052

here. The question is the jurisdiction of the courts to change their

orders. This is a proper and necessary issue for consideration in

these proceedings, U.S. ex rel. Freislinger v. Smith, 41 F.2d 707

(7 Cir., 1930); Joseph v. Esperdy, 267 F. Supp. 492 (S.D.N.Y.,

1966) ; Doss v. State of North Carolina., 252 F. Supp. 298 (M.D.,

1966); Vasquez v. Vasquez, 240 P.2d 319 (Ct. App. Cal., 1952);

Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA, 1963) ; Matter of

H-9 I. & N. Dec. 460 (BIA, 1961); Matter of C—, 6 I. & N. Dec.

366 (BIA, 1954). See !RMatter of J—, 6 I. & N. Dec. 562 (AG,

1956). But see Taran v. United States, 266 F.2d 561 (8 Cir.,

1959). The party attacking the judgment must establish the lack

of jurisdiction by convincing evidence, Pen-Ken Gas & Oil Corp.

v. Warfield Natural Gas Co., 137 F.2d 871 (6 Cir., 1943), cert. deDied 320 U.S. 800; Choctaw & Chickasaw Nations v. City of

Atoka, Okl., 207 F.2d 763 (10 Cir., 1953) ; Delanoy v. Delenoy, 13

P.2d 719 (Cal., 1932).

In Sirhan and Rodriguez, we shall consider the issue raised by

the Service concerning the courts' power to change their orders.

We shall not make the inquiry in Talavera because the expungement there moots the issue as to the validity of the court's modification. It is settled law that expungement of a non-drug conviction eliminates it as a ground for deportation. Use of the

expungement is preferable to terminating the case as improvidently begun—an action, which, to a prospective employer or

other person, may imply that deportation proceedings were terminated because the District Director exercised a discretionary

power rather than because Talavera is not deportable. Since no

hardship to Talavera is shown because we rely on the expungement rather than on the modified order, we see no need to explore

the ramifications of the court's action in his case. See Matter of

Vizcarra-Delgadillo, Interim Decision No. 1917 (BIA, 1968).

POWER OF THE COURT IN CALIFORNIA TO MODIFY A

CRIMINAL JUDGMENT

California criminal courts have statutory and inherent powers

to modify orders. We will first consider the statutory power. Section 1203.3 of the Penal Code is cited by the special inquiry

officers as authority for the courts' modifications. The provisions

of this section follow:

§1203.3. [Revocation, modification or termination of probation by court:

Notice to probation officer: Discharge of defendant.] The court shall have

authority at any time during the term of probation to revoke, modify, or

change its order of suspension of imposition or execution of sentence. It may

at any time when the ends of justice will be subserved thereby, and when

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Interim Decision #2052

the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation and discharge the person so held,

but no such order shall be made without written notice first given by the

court or the clerk thereof to the proper probation officer of the intention to

revoke, modify, or change its order, and in all cases, if the court has not

seen fit to revoke the order of probation and impose sentence or pronounce

judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these

sections.

We find that section 1203.3 continues the jurisdiction of the

court over the convicted person only so far as conditions of probation and matter relating to probation are concerned. The section does not authorize vacating a conviction. These are our reasons: The section is found among provisions relating to

probation. The heading of the section relates to changes of probation. All cases cited on the section concern judgments which involve matters relating to probation. The case of In re Scarbor)ugh, 173 P.2d 825 (Ct. App. Cal., 1946), held that under section

[203.3, a valid condition of probation must be present to justify a

:hange of judgment. It would seem, therefore, that when probaionary matters are not present, the section cannot be relied upon

s authority for the change of a judgment. Finally, the changes

f judgment expressly authorized by the section—changes involvng imposition of execution of sentence—would hardly authorize

acating a conviction.

Since section 1203.3 relates to changes involving matters of

robation, we must determine whether the change in Sirhan or

'odriguez involved a matter of probation. In both cases there

ere conditions of probation relating to service of time and obeence to the law. In addition, in Sirhan there were conditions

[ncerning use of narcotics, associations, employment and resiglee. It is clear that in neither case did the court order vacating

e conviction relate to a matter of probation. We conclude that

e court could not have found authority for its action in section

:03.3.

We now consider the court's inherent powers to modify an

der. There are two kinds, one short-lived, the other continuing.

le short-lived one expires when the original order is entered in

e minutes or when legal restraint has. been imposed upon the

fendant, People v. Thomas, 342 P.2d 889, 893 (Cal., 1959). Sirn was convicted in October 1966 and sentenced in December

66. The court orders were entered in the minutes in the same

[nths they were issued. The court vacated the conviction and

•ified the case to the juvenile court in May 1967. Rodriguez

-

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Interim Decision #2052

was convicted and sentenced on June 22, 1967. The order was entered in the minutes in the same month. The court vacated the

conviction and certified the case to the juvenile court in February

1968. Since the modifying orders in both cases came after the

original judgments were entered in the minutes, it would follow

that the courts could not look to the short-lived power as authority

for the modifications. 1

The continuing inherent power to modify an order is exercised

through the writ of coram nobis. The writ lies to vacate or correct a judgment where no other remedy exists. It is granted when

a petitioner shows that, through no fault of his, a fact was not

presented at the trial, that presentation of the fact would have

prevented the rendition of the judgment, that the fact does not go

to the merits of the issues tried, and that he could not, in the exercise of due diligence, have discovered the fact at any time substantially earlier than the time of his motion for the writ, People

v. Shipman, 397 P.2d 933, 42 Cal. Rptr. 1 (1965). The petition

for the writ need not take any particular form. See People v.

Hamlin, 152 Cal. App. 2d 112, 312 P.2d 306 (Ct. App. 1957). It

may be made orally, People v. Curtis, 104 Cal. App. 2d 219,

230, P. 2d 877 (1951); People v. Sandoval, 254 P. 893 (Cal.,

1927). Contra, In Re Dyer, 85 Cal. App. 2d 394, 402, 193 P. 2d

69, 74 (1948).

We believe that it will be more fruitful to discuss the issues in

terms of a specific court case rather than in terms of general

rules. One Armendariz was convicted in May 1964 for a narcotic

violation. The trial judge wanted to commit him to a rehabilitation program, but erroneously concluded that he could not ask the

district attorney to declare the case an unusual one—a declaration which might have made Armendariz eligible for rehabilitation. The court sentenced Armendariz to imprisonment. He was

apparently committed. In March 1966, he filed a petition for a

writ of coram nobis in the trial court. The court denied the writ,

apparently in part, because it was mistaken on the same legal

point. On appeal, the trial court was reversed and given another

In several unreported decisions, we had raised a question as to whether

the limitation on modifications under the short-lived power might apply only

to modifications that increased punishment. We now conclude that the limitation applies even if the modification decreases punishment. Thus, where

after the entry of an order in the minutes, a court issued a corrected judgment beneficial to defendant in that it changed a term of imprisonment from

a consecutive to a concurrent one, the corrected judgment was set aside because the issuance after the entry of the original sentence in the minutes

was without authority, In re Wimbs, 921 P.2d 70, 55 Cal. Rptr. 222 (1966).

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opportunity to consider the advisability of starting a proceeding

to commit Armendariz to the rehabilitation program, People v.

Armendariz, 60 Cal. Rptr. 796 (Ct. App., 1967). See also In re

Rascon, 413 P.2d 678, 50 Cal. Rptr. 790 (1966).

While Armendariz is not on all fours with the cases before us,

we see certain similarities. In Armendariz, the court acted without knowledge that it could have entered an order which would

have saved Armendariz from imprisonment—a punishment the

court did not want to inflict. The appellate court held that the

trial court had the power to correct this omission. In the instant

cases, the courses acted without knowledge that they could have

entered an order which would have saved the respondents from

deportation—a disability stemming from the punishment inflicted

and not intended by the courts. It appears to us that the power to

correct this omission existed. See Joseph v. Esperdy, supra. The

existence of a case such as Armendariz and the Service failure to

present precedents which affirmatively establish that the courts

here were without authority require us to conclude that the Service failed to carry its burden in the collateral attack on the modifying orders in Sirhan and Rodriguez.

One further comment is required before we leave this subject.

In Talavera, the Service presented a letter dated December 2,

1966 from the judge who modified his original order. He stated

that he would not have imposed the original sentence had he

known it might have resulted in an order of deportation, that

-flaking respondent subject to deportation was a penalty greater

;Ilan was intended, that the modification was an attempt to alleviate the conditions of the original sentence, and that he now beieves that he had no authority to enter the modification. The

;ervice relies upon this letter as support for its position in the

hree cases before us. The letter is entitled to respectful consider,tion, but we do not regard it as substantial evidence that the suerior courts in Sirhan and Rodriguez lacked jurisdiction to vaate their orders. Letters to similar effect were not presented in

hese cases which are under the administrative jurisdiction of the

ame District Director whosubmitted the letter in Talavera. The

otter cites no authority. The court has not vacated the order in

uestion.

Because our concern is with the convictions which were the

asis for the issuance of the orders to show cause, we need not

iscuss statutory provisions relating to acquisition of jurisdiction

y the juvenile court.

,

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Interim Decision #2052

EFFECT OF THE ORIGINAL CONVICTIONS UNDER THE

IMMIGRATION LAWS

We come now to the third question in Sirhan and Rodriguez.

Did the subsequent orders of the courts remove the aliens' liability to deportation? The Service contends that because the orders

were allegedly made for this very purpose, to give them such an

interpretation would circumvent federal laws controlling the deportation of aliens. A similar contention was vigorously advanced

by the Service in Matter of O'Sullivan, supra. It was rejected by

the Board. We find no need to add to the discussion there. See Joseph v. Esperdy, supra. We do point out that while the inference

can be drawn that the courts here were motivated by a desire to

remove the aliens from liability to deportation, it is possible that

other considerations entered into their deliberations.

Pointing to the fact that a conviction (the finding of guilt) exists independently of a sentence (the imposition of punishment),

the Service representative contends that the vacating of a sentence has no effect on the existence of the conviction and permits

the conviction, where it is for a narcotic offense, to support an

order of deportation under section 241(a) (11) of the Act. It is

sufficient answer to say that' in Sirhan and Rodriguez, where

narcotic violations occurred, the courts vacated the convictions;

no convictions exist.

The appellate trial attorney contends that the courts' actions in

vacating the convictions in Sirhan and Rodriguez are unconstitutional because the actions subject the aliens to double jeopardy.

The contention must be dismissed. An accused in a criminal case

who is instrumental in having a conviction vacated may be tried

again on the same, or another indictment, for the very offense of

which he was convicted without violaing the provision against

double jeopardy, People v. Stratton, 28 P.2d 695 (Ct. App., Cal.,

1934). This is so even if the accused has served time under his

sentence, U.S. ex rel. Jones v. Nash, 264 F.2d 610 (8 Cir., 1959),

cert. denied 360 U.S. 936. Moreover, since the proceedings were

remanded to the juvenile courts, which are not criminal courts,

the doctrine of double jeopardy does not apply, People v. Silverstein, 262 P.2d 656 (Cal., 1953).

Cases dealing with expungements cited by the Service in Sirhan and Rodriguez; e.g., Garcia-Gonzales v. INS, 344 F.2d 804 (9

Cir., 1965), cert. denied 382 U.S. 840, are inapposite. Expungement is a State rehabilitation process which removes most of the

disabilities imposed by the State on a convicted person. In Sirhan

and Rodriguez, no convictions exist.

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Interim Decision #2052

Since neither a pardon nor recommendations against deportation are involved in the instant cases, we shall not discuss the

cases concerning these matters which are cited by the Service.

Other cases cited by the Service; e.g., Guiterrez v. INS, 323

F.2d 593 (9 Cir., 1963), cert. denied 377 U.S. 910 (dictum) contain statements that a federal standard exists as to what constitutes a conviction. We agree with this. We have attempted to define such a standard, Matter of 0—, 7 I. & N. Dec. 539 (BIA,

1957). There is, however, no authority holding that a conviction

exists where there is no finding by a criminal court that a person

is guilty of a crime. On the contrary, when a court acts within its

jurisdiction and vacates an original judgment of conviction, its

action must be respected, Sakow v. INS, 314 F.2d 34 (3 Cir.,

1963) ; United States v. Shapiro, 222 F.2d 836 (7 Cir., 1955), interpreted in Matter of S—, 9 I. & N. Dec. 678 (BIA, 1962). See

Pino v. Landon, 349 U.S. 901 (1955).

ORDERS: (1) No change is made in the special inquiry

officers' orders in Sirhan and Rodriguez; (2) No change is made

in the special inquiry officer's order in Talavera. The basis for

termination of deportation proceedings is the fact that the conviction on which proceedings were instituted was expunged.

600