Opposition — Campos v. Immigration & Naturalization Service

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| SANTOS Campos Campos, PETITIONER

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_ IMMIGRATION AND ATERALIZATION SERVICE

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_ ON PETITION FOR-A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

|. FOR THE NINTH CIRCUIT .

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

‘Ropert H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-164

SANTOS CAMPOS CAMPOS, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Petitioner attacks an order of deportation on the grounds

that (1) the underlying criminal conviction, upon which

the order was based, was defective; (2) the conviction

is not final because of the possibility of his petitioning for

a writ of error corum nobis; and (3) the order of deporta-

tion constitutes cruel and unusual punishment.

On July 28, 1972, petitioner, a citizen of Mexico,

pleaded guilty in California state court to a charge of

possessing heroin for sale, in violation of Section 11500.5

of the Health and Safety Code of California.' The Immigra-

tion and Naturalization Service thereafter instituted de-

portation proceedings against petitioner. At a hearing

'We are lodging with the Clerk of this Court copies of official docu-

ments introduced at petitioner's deportation hearing, the transcript

of that hearing, and the decisions of the immigration judge and the

Board of Immigration Appeals.

(1)

2

before an immigration judge on June 16, 1975, petitioner,

represented by counsel, acknowledged that he had entered

the United States as an immigrant in August 1958 and

that he had been convicted in state court of possessing

heroin for sale. When petitioner’s counsel attempted to

discuss the underlying conviction, the immigration judge

stated that he did not have the authority to consider chal-

lenges to petitioner’s conviction in the context of a de-

portation proceeding but that petitioner could seek relief

from the conviction in state court. The judge thereafter

ruled that petitioner was deportable under Section 241(a)

(11) of the Immigration and Nationality Act, 66 Stat.

206, as amended, 8 U.S.C. 1251(a)(11). The Board of Im-

migration Appeals dismissed petitioner’s appeal from

the deportation order. The court of appeals affirmed (Pet.

App. A), and denied a petition for rehearing with a sug-

gestion for rehearing en banc (Pet. App. B).

None of the contentions made by petitioner in this

Court entitles him to relief from the deportation order.

Petitioner evidently claims that when he pleaded

guilty in state court to having possessed heroin for sale he

was not made aware of the possibility of his consequent

deportation. It is settled, however, that a person entering

a guilty plea cannot challenge the validity of that plea in

the context of a deportation proceeding. E.g., Rassano v.

Immigration and Naturalization Service, 377 F. 2d 971,

974 (C.A. 7); Giammario v. Hurney, 311 F. 2d 285, 287

(C.A. 3). The fact that petitioner may yet be able collat-

erally to challenge his guilty plea on a writ of error corum

nobis—which provides relief “of the same general character

as [relief] under 28 U.S.C. §2255” ( United States v. Morgan,

346 U.S. 502, 505-506 n. 4)—does not affect the finality of

his state conviction for deportation purposes. See Oliver

v. Immigration and Naturalization Service, 517 F. 2d 426,

428 (C.A. 2), certiorari denied, 423 U.S. 1056; Aguilera-

“_} ==?

—

3

Enriquez v. Immigration and Naturalization Service, 516

F. 2d 565, 570-571 (C.A. 6), certiorari denied, 423 U.S.

1050.

Finally, an order of deportation is civil, rather than penal,

in nature; thus, petitioner cannot avail himself of the

Eighth Amendment’s prohibition against cruel and

unusual punishment. As Mr. Justice Holmes stated in

Bugajewitz v. Adams, 228 U.S. 585, 591, in which this

Court held that the constitutional prohibition against ex

post facto laws does not apply to deportation proceedings:

It is thoroughly established that Congress has power

to order the deportation of aliens whose presence in

the country it deems hurtful. The determination

by facts that might constitute a crime under local law

is not a conviction of crime, nor is the deportation a

punishment; it is simply a refusal by the Government

to harbor persons whom it does not want.

See also Woodby v. Immigration and Naturalization

Service, 385 U.S. 276, 285; Harisiades v. Shaughnessy, 342

U.S. 580, 594.2

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RosBerT H. Bork,

Solicitor General.

NOVEMBER 1976.

Petitioner also “asks this Court to consider * * * for the future”

(Pet. 7) a relaxation of admission requirements to permit any attorney

to practice before the Court who has been admitted to practice before

any state or federal court. To the extent that petitioner is advancing

this suggestion as a basis for relief here, it must be rejected. Petitioner

has not shown that this Court's present admission requirements are

unreasonable or that such requirements (which include means for

obtaining permission to represent a client pro hac vice) have forced

him to proceed in this Court pro se.

DOJ- 1976-11