Petition for Writ of Certiorari — Garcia-Gonzales v. Immigration & Naturalization Service

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An ESI ee ae . Office-Supreme Court, U.S. ]

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*E COURT. 3M

| WO 23 1s

- SOHN F. DAMS, CLERK

In the Supreme Court pees

OF THE :

United States —

—_—_—— Be ’s

_ Ocroser TERM, 1965

Marta Giarcta-GonzaLzs, zane * 7

ln en ee one - Petitioner,| = = x a

ie at | og .

IMMIGRATION AND NATURALIZATION SERVICE, | .

See an st q

PETITION FOR A WRIT OF CERTIORARI

ie to the United States Court of Appeals .

: _ for the Ninth Cree

. Journ Ss. Heke,

580 Washington Street,

‘San Francisco 11, California,

Attorney for Petitioner.

é é =

‘Subject Index

‘ C ‘ : Page

Opinions below ..... ehiseiwanae sas Soren hitatatia capes eae ee

Jurisdiction ...... enedeevendecccecpescctvesCossnciedqecee

Gemmiban pecaneted «ih 25Gs TA alse oie eedss 2

Statutes involved ses p geet eeseeeeeeteensenees Pee Schwa ef

Statement of the case .............. iiahbak Lap ewauwe’ gk

Reasons for granting the writ .............++ssseeeeeees es |

Conclusion ........:... ee eeeeeneeceneneeeeeseeions <tnaee 11

‘Table of Authorities Cited —

Barber v. Gonzales, 347 U.S. 637 CR «+728 His gokne PERE,

Fong Haw Tan v. Phelan, 333 US. 6.: sé akekees SERCO

Holzapfel v. Wyrsch; 259 F.2d 890 (1958)... hier hetcos ce 9,10

. Kelly v. Immigration and Naturalization Serviee,«.. F. 2d

= (9 Cir., decided June 29, 1965)...........00005.0.. ) Bee

Matter of A F__..... 8 I&N_Decision- 429... .6, 7,8

| —_—--Pino V: Landoa, 349 US. 901 i (1986)... eS Bs 6 ie Se |

Sawkow v. Immigration and Naturalization Service, 314 F.

me epee see be WHAM SEW CAM Eb bse oe nseans 9,10

Statutes es,

California Penal Code: a4 | : ia

Séction’ 1208.4 ..........ee.yee Oh PT

__-Immigration and-Nationality Act of Foal ee re

———. "tecten SE... fa EES A EE CELLED 2,3

Section 2414). (66 Stat. 204, 8 U.S.C. 1251(a) (4). 8

_ Section 241 (11) (66 Stat. 204, 8 U.S.C.A. 1251(a) (11)) or

Peo eS Se cceeidetiiuamioneice ceaciaein ts +8, 6,8,9

-Pitle 28, United States Vode: ee a

Section 1254(1) ........ SV etV Pelvic odes eccevesees 2

_— Section 1738 (Jie 25, 1948, . 646, 62 Stat, 947)... 5,41. 3

_ Public Law 87-310, effective Oct. 26, 1951, 75. acd wal, 8.

U.S.C. 1105(8) (8) podgeras codssuas be thcasi leew

an the Sunrens Court

OF THE —

| -Mnited States ©

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eyes

Speco tee puna, a

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hk) bY No.

et . ‘ eet

Maria Garcta-GONZALES, ° Sie

eS: i OSAOTE PE Bs onesie

Tuemigra‘rion AND. N ATURALIZATION SERVICE,

: yi 3 . « r zs sob eo ie

; ; -_

—

Spat "PETITION FOR A WRIT OF CERTIORARI

| ‘to the United States Court of | eee

_ The petitioner, Maria iain tome, prays ‘that | :.

i wih of certiorari. issue to review the judgment of the |

United States Court of Appeals for ¢he Ninth. Circuit

. _ enteréd 1 in the abov entitled case on ‘April 2 28, 1965. :

: OPINIONS BELOW |

The decision of the Board of Immigration Ace

— (R. hi ‘is. not reported but a copy thereof is appended _

” ny e- F 4

Of, .

MGIB OS Cans

Pa xs a Ss rs

ay ZS ¥

‘

7”

to this petition as eign A, pp. 13. The: opin-

ion of the Court of Appeals for the Ninth Circuit -

(R..- 48) . sustaining the order of, re is ret.

ported at 344 Fad B04:

. , 4

4. .§ See

<i ennai

The opinion and judgment. of, the Court . Appeals =

for the Ninth Circuit were made and éntered’on April

| - 28, 1965 (R. 48-58), and copies thereof” are appended

to this petition as Appendix B, pp. 414. The juris-

diction of -this Court is invoked under 28 vee. *

1254(1):

Questions PRESENTED

; Has there been a conviction within the ootytennpila

tion of Section 241 of the Tinmigration and National-.-

ity Act where a state criminal’ record lias been ex-

punged and the. criminal ee dismissed _—

State Statute? cas

~ Can an order of dbportation charging that ‘an alien :

has been convicted of a violation of'a state statute,

relating to possession of a narcotic drug, be sustained :

if no , present record of conviction existe?

omy os + mee 0 +e"

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SYS hase _ STATUTES INVOLVED le Cy the

Immtigration and Nationality Act of 52° Q

“Section 241. Deportabile aliens—General Classes.

- (a) Any elign in the United States (includizig an -

alien crewthan) shall, upon, the order of the At-—

2 torney General, be deported who a

ee * * a > * a ae x

| (11). ‘is, or hereafter at any time after entry has’.

been, ‘a narcotic drug addict, or ‘who-at any: time

_has been convicted of a violation. of, or a con- °

‘spiracy to violate, vany. law or regulation. relating

“to the illicit possession of or ‘traffic in nareotie

drugs or marihuana, ‘of who has been convicted -

law .or regulation erning or controlling the

_, taxing, manufacture, production, compounding,

trarisportation, sale, exchange, dispensing, giving * -

- away, importation, exportation, or the possession —

for the purpose of manufacture, production, com-:

| -pounding, transportation, sale, exchange, dispens-

ing, giving away, importation or exportation of

- . opium, ‘coca leaves, heroin, marihuana, any salt

derivative or preparation of opium or co¢a leaves

’ or isonipecaine or any, ae alae or ad-

diction-sustaining opia ,

(66 Stat. 204, 8 USCA 1251(a) (i1)).

The Penal Code ‘of California, Part: 2, Title 8,

Chapter 1..

“Sec. 1203.4 (Right of Discharged Probationer to

withdrawal of plea of guilty ‘or vacation .of ver-

dict of conviction: Release from disabilities:

e..

_ ;-of-a violation of, Hy” donee tc violate, any = \

) Making of applioatiog: ‘Pleading of conviction im -

; £. tie

prosecution for gubsequent offense: Effect of dis-

missal of accusation or information pursuant to

this Section.) —

Every defendant who din: fulfilled the conditions *

of his probation for the entire period thereof, or

who shall have been discharged fromm probation

- prior to the termination of the period. thereof,

~~ shall.at any time thereafter be permitted by the

court. to withdraw his plea of guilty and enter

mation against such defendant, who shall there-

- after be_released from all penalties and disabili-

a plea of not guilty; or if he has been convicted

after a plea of not guilty, the court shall set aside

the verdict of guilty ; and in either case the court

shall theretipon dismiss the accusations .or infor-

ties resulting from the offense or .crime of which

he has been convicted. The probationer shall be

informed of this right and privilege in his’ proba-

tion papers, The probationer may make such

application and change of plea in person or by

attorney, or. by the probation officer authorized in

writing; provided, that in any subsequent pros-

ecution of such defendant 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 accusation or information

dismissed.

7 “Distnissal of an accusation of information: pur- ra

suant to this section does not permit a person to

own, possess or have-in his custody or control any

firearm capable of being concealed upon the per- -

son or prevent his: conviction under Section 12021.

(Added by Stats. 1935, eh. 604, Sec. 5, p. 1709;

amended. Stats, 1941, ch. 1112, See, 1, p. 2815;

-! amended by Stats. 1951, ch. 188, Sec. 1, p. 434;

"amended Stats. 1961, ch. 1735, See. 1).” 3

Title 28, United States. Code b judiciary and J udicial

Procedure— me

“Section 1738. State “se Territorial statutes and

- judicial proceedings; full faith and credit

oe “<The Acts of the legislature of any State, Terri-

tory, or possession of the United “States, or copies .

_. thereof, shall be authenticated by affixing the seal

. of such State, Territory or Possession thereof.

“The records and judicial - proceedings ‘of any .

‘court of any such State, Territory or: Possession,

_ or. copies thereof, shall be proved or admitted in

othér ‘courts within the United. States and its

Territories and Possessions by the. attestation of

. the elerk and seal-of the court annexed, if a seal

_ exists, together with a certificate of a judge of the

court that the said attestation is in ‘proper. form. . |

- “Such Acts, records and judicial proceedings |

. or copies thereof, so authenticated, shall have the

same full faith and credit in every court within

the United States’ and its Territories and Pos-,

sessions as they have by law or usage.in the

courts of such State, Territory or Possession cuhgon

which they are taken.” |

_ (June 25, 1948, c. 646, 62 Stat. 947.) - }

STATEMENT OF THE CASE |

The facts dre not disputed. Petitioner i is a married

female alien, a native and citizen‘ of Mexico. She. was

awfully admitted to the United States for permanent

: residence on February 4, 1924, at which time she was

less than 10 years of age. Petitioner has resided -con- .

tinuously in the United States since that date, except

for brief temporary visits to — the last occur-

' ring in December, 1960.

-On_November- 14, 1961, petitioner cabal a_plea

-of guilty to two counts charging violation of Section

11500 of the Health and Safety Code of the State of

California. A copy of the Judgment of the Superior

Court (R. 36-37) is set forth fully in Appendix C,

' pp: 15-17. Or November 5, 1962, the same Superior

~”. Court (R. 9) entered an order permitting petitioner

_ to withdraw her plea of “guilty” and enter a plea of

‘‘not guilty” to the said charges. The Court then

further ordered that the action be dismissed and the

record of conviction base (Appendix D, pp.

18-19).

_ Respondent ordered petitioner deported as an alien.

who has been convicted of.a violation oflaw described

in Section 241(a) (11) of the Immi on and Nation-

ality Act of 1952 (66 Stat. 204, 8 USCA 1251 (a) (11)):

The Board of Immigration Appeals, in its decision

dated December 4, 1962 (Appendix A, pp. 1-3), held

that the action of the Superior Court of ‘the State of

California in and for the County of San Benito, per-

mitting petitioner to withdraw her plea of guilty,

-enter'a plea of not guilty, and ordering that the

action be distiiissed and the record of conviction ex-

punged, did not affect the order of déportation—citing

the decision of the Attorney General dated October

12, 1959 in the Matter of A. F <aeeey Lmnmi-

gration File A2904545. The décision of the Attakney

General in Matter Of Mi HF: is set -

forth fully in Appendix E, pp. 20-52.

Jurisdiction of the Court of Appeals to entertain

the. Petition for Review is conferred by. Public Law

87-310, effective October 26, 1961, 75° — 651, 8

USC aa, (3).

REASONS FOR GRANTING THE WRIT

| This writ of certiorari i Is sought because thie issues

presented. herein raise extremely important questions |

pertaining to the administration of the immigration

and ‘nationality laws of the United States. In addi-

tion, the decision below. is in conflict with decisions of -

this Court and eis to decisions of other Circuits.

oS Te SED :

_ The decision bélow is in conflict with the decision

of this Court in Pino v. Landon, 349 U.S. 901 (1955),

or, if it is not. so in conflict then: this issue of far- |

reaching importance compels a definition of thé term

“‘eonviction”,.which was not done by the ‘Court in its

per curiam opinion. In. either event, this Court |

. Should grant the writ.

This Court in Fong. Haw Tan v. ‘Phelan, 333 US.

6, at page 10, stated: a

‘‘We resolve the doubts in favor of that construe-

‘ tion because deportation is a drastic measure and .

at times the Peaons of banishment or exile,

8 :

. Delgadillo v. Carmichael, 332 U.S. 388. It is the

forfeiture for misconduct of a residence in this»

eountry.. Such a forfeiture is a penalty. To con- —

strue this statutory provision less generously to

_the alien might find support in logic. But since

the stakes are considerable for the individual,

- we will not assume that Congress meant to trench

on his freedom beyond that which is Tequired by —

the narrowest of several possible meanings of the

words used.’’ 7

Reiterating this penaple, niet. Justice. Warren has

writien ;

‘‘Although not penal ’.in ecu. deportation

. Statutes as a practical matter may inflict ‘the .

equivalent of. banishment. or exile,’ * * * and

should: be strictly construed. ” Barber v. Gonsales, |

347 U.S. 637, 642 (1954).

~ The decision of the Court below affirms the decision

of the Attorney General in the Matter of A a

Fr: .-y 8 I&N Decision 429 (Appendix E, pp. 20-52,

that an expungement of a record of conviction under

~ Section 1203.4 of:the Penal Code of California has no

effect in reference to aliens convicted of offenses men-

tioned in Section *241(a) (11). The decision of the

Attorney General in Matter of A FF ,

supra, gives cognizance to a record of conviction: so

expunged under Section 241(a)(4), (66. Stat. 204, 8 »

USC 1251(a) (4)), but refuses to recognize such judi-

cial proceedings under Section 241(a)(11). If there

is: no finality of conviction to support an order of

_ deportation under Section 241(a) (4), there likewise

ral ‘ . ,

__ ¢an be no finality. of conviction: to support an ae

under Section 241 (a) (11).

‘This inconsistent statutory. construction of the term

“conviction” as applied to subsections of the same ~

section of law is an issue which should be resolved by

this Court.

a | Aa

. The Court of Appeals for the Third Circuit, in the

ease of Sawkow v. Immigration and N aturalization

Service, 314 Fea 34, 37 (1963), when considering a

case where a judgment of conviction had been va-

cated, stated: |

an urges, however, that if a sibabipiett of convie-

tion is vacated for the purpose of avoiding

. deportation, a subsequent recommendation is in-

effectual. This argument misses the mark, for no

contention is made that the state court either-ex-—-—

ceeded -its jurisdiction or abused its discretion i in‘

_vacating the plea of non vult together with the

: judgment . of conviction, ‘and subsequently . dis-

missing the indictment. Thus, the action of the

state court is concededly valid. That being so, the

original judgment is as much a nullity as if the

grand jury had: never returned an indictment.

‘The same Court, in Holzapfel v. W orich, 259 Fed

890 (1958), at page. 891, stated : oo ae :

“In deportation ‘cases where a state crime is

involved we have to look to the law and ‘procedure

of the state to interpret -what peppenes in the

- state court. **# #9 |

The decision of the Board of Immigration inp

charges that petitioner is deportable from‘the United

States as an alien convicted of an offense in violation

of the laws of the State of California. The record

establishes that the judicial proceedings upon which

) the deportation grounds are predicated were subse-

quently dismissed and the record of. conviction ex- .

punged under Section. 1203.4 of the Penal Code of

- California. How can it now be contended that there

exists a record of conviction?

The Court below, contrary to the ‘Sciiicoe of the |

- Third Circuit in Sawkow v. Immigration and .Natu-

ralization Service, supra, and "Holzapfel v.-Wyrsch,

supra, refused to recognize the state proceedings be-

_” eause such a view would make the deportability of an. .

- alien rest ‘upon the vagaries and peculiarities of state —

law. As was stated by Judge Ely in his dissenting

opinion in Kelly v. Immigration and Naturalization

Service (an analogous case decided by-a different

panel of the Ninth Circuit) : |

“Now, our court ‘has said that while it will

respect California law, insofar as California law

provided for the crime and the ‘conviction’, it. ..

may not accord to California the same respect —

in the application of its statute or of its decisions

__ in the interpretation of the effect of a subsequent

procedure taken under a California statute ‘of the

same dignity as that which created the crime

een BP2d 9 Cir, decided June 29, a

1965, Appendix F, pp. 53-64, at p. 57.)

This conflict, regarding a question of such vital im-

portance in the interpretation of the immigration and

nationality laws of the.United States, is sufficient to,

justify intervention by this . ieee 7

’ The duestions presented by this case are of stent

: and recurring significance in the administration of |

our immigration and nationality laws. The decision ~

of the Court below holds, contrary to Section 1738, -

Title 28, United States Code, that the Immigration .

and Naturalization Service is not required to-give

full faith and credit to the judicial proceedings of a

state court. In . In essence, it permits the administrative

_agency to ignore, or give no credence to,.a valid, au-

thenticated judicial record. We assert that admin- .

istrative agencies are required to give the same comity

to the full faith and credit provisions as do State

and Federal Courts. Refusal of the court to recog-

nize this statutory principle leaves unsettled an. im-

portant question of federal law“ which should be

decided. by this Court. '

. é ?

CONCLUSION

For. the reasons set forth above, it is _reapectfally :

submitted that this petition — writ of certiorari *

should be granted. a ;

Dated, San. Francisco, California, —

J uly 20,1965.

| JosepxH S. Henroas,

Attorney for Petitioner.

" , (Appendices A through F Follow)

Appendix A -

a ee “

United States Department of ee

~Board of — Appeals

Dec: 4—1962

File: A-2589930—San Franeiséo ‘

In re: Maria Garcia-Gonzalez 3; | a ee

In Deportation ri ict ee eat Or

: ; Motion

On behalf of respondent: J oseph S.. aries, Eeauire

eee ran -580 Washington Street

a Francisco 11, Calif.

: Charges: --

- Order: See. 241(a) (11), I&N Act (8 USC 1251. .

aa (11) )—Narecotics possession,

conviction: Sectign 11500,

California Health and: Safety Code

| (heroin) , "

Lodged: None a eae af weath

Application: Termination or pene and reconsid-

eration _“¢

‘This casé comes forward: jini to respondent’s .

motion submitted through counsel ‘at the San Fran- .

cisco, California’ office of the Service pn. November .

18, 1962, requesting that the proceedings in. the in-

stant case be terminated or in the alternative ‘re- '

., opened for reconsideration’ of our décision of Febru-

ary_26, 1962. The respondent, a 48-year-old female, a

native and citizen of Mexico, has resided continu- *

ously in the United States since her admission thereto

for permanent residence on March 4, 1924. Shie was

last admitted to the. United States at El Paso, Texas:

in February 1960 after an absence of one and one-half

months in M®xico, D. F., Mexico. When this case was

last before us on February 26, 1962, we dismissed the

appeal from, an order entered by the special inquiry

officer on December 19, 1961, directing that the re-

spondent be deported from the United States pursu-

~ ant to law on the charge designated above.

The. respondent was convicted of violation of Sec-

. tion 11500 under the Health and Safety Code. of Cali-

fornia on November 14, 1961. Counsel asserted that

on November 5, 1962, the. respondent was permitted _.

to withdraw her plea of guilty and enter a plea of

3 not guilty to the charge for which she was conVicted

in°N ovember 1961. According to. counsel there no:

| longer ‘remains as an official record a conviction which

“would sustain the respondent’s deportation under. |

Section 241(a) (11) of the Immigration and Nation-

ality Act. There is no merit to counsel’s argument

- that the: respondent is no longer amenable to depor-

> f tation because she was permitted by the Superior

; Court: of . the State of California, in and for. the

County of San Benito on November 5, 1962, to with-

_draw.a prior plea of guilty and enter a plea of not

guilty to the charge of violating Section 11500 of the:

California Health and Safety Code. The Board'i in its

“decision .of February 26, 1962, referred to Matter of

A-F-, A-2904545, decided by the Attorney General

‘on October 12, 1959. In the Matter of A-F-, supra,

ee was held that ‘a finding of deportability under Sec- |

2°

ee gS! 80st Jo

tion 241(a)(11) of the Immigration and Nationality

Act based upon conviction of a 2% narcotics offense.

is not affected by a technica “expungement” or

erasure of conviction record, as authorized by some —

state statutes, upon fulfillment.of conditions of proba- .

tion, such as Section 1203.4 of the-California Penal -

' Code or Section 1772 of the Welfare and Institutions -

Code. Accordingly, the foregoing action of the Su-

perior Court of the State of California for the County

_ of San Benito, in permitting the respondent to with-

draw a plea of guilty and enter a plea of not guilty

under Section 1203.4 of the California Penal Code in

nowise affects the order of deportation. ee the .

following order will be entered. |

Order: It is ordered that the appeal be dismissed

and that the motion be denied. .

a Thos. S. Finucarie

ps s

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Maria Garcta-GOoNnsaLes, 7

Petitioner,

< No. 18,375

IMMIGRATION AND NATURALIZATION Servicr,

Brite, Respondent.

[ April 28, 1965 |

Petition to Review an Order of the

Immigration and Naturalization Service

Before: MADDEN, Judge, Court of Claims, and

JERTBERG and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

‘Petitioner was born in Mexico in 1914. When she was nt quite

-- ten years old, she entered the United States as an immigrant and

she has resided in this country ever since, her period of residence

now being over forty years. She has never been naturalized, and

remains a Mexican national. So far as appears, she has been

“+a self-respecting, self-supporting member of the communities in

which she has lived. However, in 1961 she pled guilty to two

counts of a six-count information that had been filed against her

in the Superior Court of the State of California, County of San

Benito, charging violations of ‘sections 11500 and 11501 of the

California Health and Safety Code. The two.counts to which

she: pled guilty charged her with the unlawful possession of

heroin. Her plea of guilty was accepted and she was given three .

years probation, two of the terms of which were that she was

to serve six months in the county jail and pay a fine of $1,000.

This judgment was entered against her on November 14, 1961..

2 , Maris Garcia-Gonzales vs,

Under ine of Desiabes 4, 1961. she was served with an order

to show, cause. and notice of hearing in deportation. proceedings.

This. notice alleged het conviction. and that by reason of. it

she was subject to deportation pursuant to section 241(a) (11)

of the Immigration and Nationality Act (the Act) (8 U.S.C.

§1251(a)(11)).1 A hearing was held on December. 19, 1961 at

which proof of the conviction was received iy evidence and she

admitted the conviction. On the same day the Special Inquiry

Officer decided that she was subject to deportation and ordered

that she be deported to Mexico. On February 9, 1962, she ap-

pealed to the Board of Immigration: Appeals, Her appeal was

dismissed on February 25, 1962. The Board found that the order

was fully supported by the evidence and that ——— was not

eligible for any form. of discretionary relief,

On, November 5, 1962 petitioner again ‘appeared before - the

Superior Court of California, San Benito County. Her. probation

was terminated und she withdrew her plea of guilty and pled not -

guilty to the charge. This was done pursuant to section 1203.4

of the California Penal Code.* The record does not affirmatively -

oo alien in the United States... shall . .-. be deported

who— . - (11) ... at any time has been convicted of a violation of

or who has been convicted of a violation of ... any law or regulation

governing or controlling the taxing, manufacture, produetion, eom-

pounding, transportation, sale, exchange, dispensing, giving away,

importation, exportation, or the possession for the purpose of. the

manufacture, production, compounding, transportation, “ed oe

dispensing, giving away, importation or exportation of .

2“Every defendant who has fulfilled the conditions of his probation

for the entire period thereof, or who shall have been discharged ‘from

probation prior -to the termination of the period thereof, shall

time thereafter be permitted by the court to withdraw his

guilty and enter a plea of not guilty; or if he has been convicted

a plea of not guilty, the court shall set aside the verdict of guilty;

and in either case the court shall thereupon dismiss the accusations or

information against such defendant, who shall thereafter be released

from all penalties and disabilitjes resulting from the offense or crime

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

of his right and privilege in his probation papers. The probationer

may make such application and change of plea in person or by attorney,

or by the probation officer authorized in writing; provided, “that in

Immnigation and Naturalieation Service 3.

how that upon withdrawal of the plea of guilty and substitution

of the plea of not: guilty the court netually dismissed the informa.

tion against her, However, the language of the atatute is manda-

tory and we presume therefore that the court did so, On Novem-

ber 8, 1962 petitioner moved to reopen or reconsider the doeporta-

tion order of December’ 19, 1961 and the docision of the Board of

Immigration Appeals of February 26, 1962 on the ground that

her conviction had been wiped out or expunged under the pro-

visions of the California Penal Code, On December 4; 1962 the

Board of Immigration Appeals denied the motion and dismissed

the appeal. This proceeding was filed on January 19, 1963.

At the time that the matter was argued before us, it appeared

that under our decisions an order refusing to reopen or reconsider |

a final order of deportation was not subject to review in a pro-

ceeding such as this, which was filed pursuant to section 106 of | |

‘the Act (8 U.S.C. §1105a, as amended in 1961), Our decisions

were based on the ground that this section authorized review by

us of final orders. of deportation only, and that a refusal. to

reopen or reconsider is not such an order, See Giova v. Rosenberg,

9 Cir, 1962, 308 F.td 347. The Supreme Court had granted

certiorari in the Giove case and we tlierefore.deferred submission

of this case pending its ‘decision. On October 26, 1964 the Court

and remanding the case to us with directions 40 entertain the

petition for review. ‘Under that decision we have jurisdiction

in the present case. We therefore. proceed to the merits.

The sole question presented is whether the setting aside of

the plea of guilty, entry of a plea of not guilty, and dismissal

of the information, pursuant to California law, has so far “wiped

out” or “expunged” the conviction upon whieh the deportation

amy subsequent prosecution of such defendant for any other offense, ~

conviction“inay be pleaded and proved and shall have the

as if probation had not been granted or the accusation or

- dismissed. n i .

- “Dismissal of an ‘accusation or information pursuant to this section

person to own, possess or have in his custody or

any firearm capable o being concealed upon the person or

. control of

4 | Maria Garcia-Goneales vs,

ordor rests that thei order must be reconsidered, We. answer this

question in the negative,

While the procine question. has not heretofore ‘heen decided by .

‘us, our. prior decisions point to, and indeed, require the result

_ that we now reach, In Arrellano-Flores v, Hoy, 9 Cir., 1958, 262

¥,2d 667 thie alien was convicted in a California court of untaw-

fully welling marihuana, The proceedings in the state court were.

suspended and probation was granted upon eondition that the

alien serve one ‘year in the county jail, We held that this was

nevertheless conviction within - the. meaning of section

241(n)(11). We there pointed out that Californa haw held that

such a disposition is a convietion. (In re Morehead, 107 Cal. App.

2d 346, 237 P.2d 335; People v. Christman, 41 Cal.App.2d 158,

106 P.2d 32,) We also indicated a belief that in enaeting the

statute, “Congress intended to do its own defining [of ‘eonviction’] _

rather than leave the matter to variable state statutes.”

In Adams v. United States, 9 Cir, 1962, 299 F.2d 327, a citizen

had been found guilty of unlawful possession of. marihuana and

committed to the California Youth Authority ‘for the term pre-

.” . wertbed by law. We held that this was a conviction, within the .

meaning of-a statute requiring a person convicted of.a violation

of any narcotic law to register before departing from or entering

into the United States, (18 U.S.C. §1407). In that case, citing

. Arrellano-Flores, supra, we said:“We do not think that 18 U.S.C.

§1407 incorporates all of the niceties and nuances of state laws

on the subject of conviction.”. We also held. that evidence offered

to show that the alien’s conviction had been “wiped out” pursuant

to the. provisions of section 1772 of the California Welfare and

Institutions Code was properly excluded. That section, which is

quoted in our opinion in Adams, is quite-similar to section 1203.4

‘of the California Penal Code. In so holding, we cited and quoted

from our decision in Wood v. Hoy, 9 Cir., 1959, 266 F.2d 825.

Wood v. Hoy was atiother ease in which there was a suspended |

“sentence. We held that the alien had nevi been convicted

within the meaning of section 241(a)(4) of the which deals

with convictions of offenses involving moral turpitude other than.

narcotic offenses. The alien there relied. upon section 1203.4. of

the California Penal nics and. ee ee ee

Immigration and Naturalisation Service - 5

eS,

retain some control over the final disposition of a ‘eeditasiate

criminal record, it does not follow that such control precludes a

’ finding that the probationer was ‘convicted’ by that” court.”~We-. ....

also pointed out that-under decisions of the California courts

relating to section 1203.4 of the California Penal Code, that sec- ©

tion does not in fact wipe out a conviction for all purposes.®

Respondent in its brief points ‘to the following particulars in which

the Conviction is not “wiped out”, in addition to those specified in the

section itself: “The California statute itself conditions the setting aside

at the the verdict and the release of disabilities upon the fact of conviction

—if he has been convicted,’ supra—and it also provides within its own

test that the later changing of the record shall be ineffective in a

subsequent prosecution for another offense. People v.. Hainline, 219

Serre Cee o Barwick, 7 Cal.2d 696, 699, 62 Pac.2d 590;

v. Christman, 41 Cal.App.2d 158, 160, 106 Pac.2d 32; People

v. p wh 115 Cal.App. 103, 107, 1 Pac.2d 43; People v. Majado, 22

ge 323, 326, 70 Pac.2d 1015;. People v. Leach, 22 Cal.App.2d

525, 528, 71 Pac.2d 594. Under the California Vehicle Code, Section

309, the chanzed record will not prevent revocation of a vehicle license

for two or :aore convictions. Ellis v. Department of Motor Vehicles,

pp.2d 753, 757-758, 125 Pac.2d 521; cf. [contra] Sherry v.

51 Cal.A

- Ingels, 34 Cal.App.2d 632, 634-636, 94 Pae.2d 77. The conviction also

remains effective, despite the so-called expunging: for impeachment of

the offender asa wituess, People v. O’Brand, 92 Cal.App.2d 752, 755-

756, 207 Pac.2d 1083; People v. James, 40 Cal.App.2a 740, 746, 747,

05 3 ef. [contra] People v. Mackey, 58 Cal. App. 123, 131,

208 Pac. 135; for disbarment as an attorney, Roth v. State Bar, 40

Cal.2d 307, 300, 312, 253 Pac.2d 969; In re Phillips, 17 Cal.2d 55, 57-61,

. 63-64, 109 Pac.2d 344, 132 A.LR. 644; cf. In re Hickman, 18 Cal.2d 71,

74, 113 Pae2d 1; for suspending a physician’s license, Meyer v. Board

of Medical Examiners, 34 Cal.2d 62, 65-67, 206 Pac.2d 1085; for proof

in an action on injuries arising out of the offense, Vaughn v. Jonas, 31

Cal.2d 587, 594-596, 191 Pac.2d 432; and for continuing ‘the duty of an -

ex-convict to register under local ordinances or under sex offenders’

registration, 28 Ops. Atty. Gen. Cal. 178; 184-185.” There are also

many statatory exceptions to to the stated effect of section 1203.4: Cal.

‘ Bus. and Prof. Code §§1679 (discipline of dentists); 2383, 2384 (dis-

cipline of physicians); 2963 (discipline of licensed . psychologists); —

6102 (discipline of attorneys); 10,177 (discipline of licensed real

estate dealers); 10,302 (discipline of licensed business opportunity

brokers); 10562 (discipline of mineral, oil and .gas licensees); Cal.

Vehicle Code §13555 (revocation of motor vehicle drivers’ licenses) ;

Cal. Education Code §§12910, 12911 (discipline of teachers).

ee «1.

ae Maria Garcia-Gonzgles vs.

In Hernandez-Valensuela v. Rosenberg, 9 Cir., 1962, 304 F.2d

639, it was claimed that a comparable provision of the Federal

Youth Correction Act (18 U.S.C. §5021(a)), under which the

conviction of a youth offender is automatically set aside upon his

unconditional discharge before the expiration of the maximum ;

sentence imposed, did not have the effect of rendering ‘his con-

viction not final. However, it did not appear that the alien

involved in that case had in fact been discharged. In discussing

the problem, we said: “It is true that the sentence imposed car-

' vies with it the possibility of congressional grace_upon the un-

conditional discharge, but such possibility of future grace in no .

respect affects the present fact of guilt” (p. 640). We also pointed

out that section 241(b) of the Immigration and Nationality Act

(8 U.S.C. §1251(b)) evidences a congressional intent that. such

a statutory provision for forgiveness is not to affect the offender’s

deportability. Sr

We made similar rulings in prin cases. ' Sebenasad v. Rosen-

berg, 9 Cir., 1962, 306 F.2d 861, like this case, involved subsection

(a), subdivision (14) of. section 241. The alien was a state offender

who had been committed to the California Youth Authority, and —

‘ we cited and followed Adams, supra. In Gutierrez v. I.N.S., 9

- Cir., 1963, 323 F.2d 593, the alien was convicted in a California

court of unlawful possession of marihuana. The proceeding was

then suspended and he was placed on probation. We held, citing

Arrellano-Flores, supra, that the defendant had been convicted

‘within the meaning of the statute. The opinion relies in part.

upon Adams, H ernandez-Valensuela and Zabanazad, supra.

We recognize that none’ of these cases decides the precise ques- _

tion here presented, because in none of them had the alien com-

pleted his probation and received thé benefit of the provisions of

~ section 1203.4 of the California Penal-Code or of a comparable

statute. Perhaps the Adams case is most closely in point. But we.

‘think that the principles that they apply require the conclusion ©

that the California statute does not “wipe out” the conviction or

“expunge” it for the purposes of section 241(a) (11) of the Im-

. migration and Nationality Act.

Militating against petitioner’s contentions are the following

considerations : ;

Immigration and Naturalieation Service 7.

4. Seetion 1208.4 rewards a convict who has fulfilled the terms

of his probation, first, by changing the record of his conviction to

show a plea of not guilty and a dismissal, and second, by releas-

ing him “from all penalties and diswbilities resulting from the

offense or crime of which he has been convicted.” We would. take

these to be penalties and disabilitios imposed by California law.

We doubt that the California legislature intended to, or could,

release petitioner from penaltics or disabilities imposed by federal _

law, although Congress could, if it chose, give California's: action

that effect. Moreover, by ite own terms, as well as by the torms of

other statutes, section 1208.4 does not, in fact, release - =

_alties and disabilities, (Footnote 3, supra).

2. It is sheer fiction to say that the conviction is “wiped out”

or “expunged.” What the statute does is reward the convict for

good behavior during probation by releasing certain penalties and

disabilities:

3. As we said of section 1772 of the California Wolfare and | -

Institutions Code and 18 U.S.C. §1407 in Adams v. United States,

‘supra, pp. 330-331; “We have already indicated that the appli-

eability of $1407 does’ not depend upon all of the peculiarities

of the laws of the various states. We think that this is particularly

true with reference to such a statute as California’s. We are told

that it is almost unique in this country. (Comment, 2 Stan. L.R.

221, 222. See, however, Nevada Rev. Stat. §176-340, and 18 U.S.C.

$5021). It would defeat the purposes of §1407, which we dis- -

' cussed at some length in Reyes v. United States, 9 Cir., 1958, 258

_ F.2d 774, if provisions of local law, dealing with rehabilitation of

convicted persons, could remove them from the’ ambit of section

‘07. Many of the states have such provisjons, but most of them

do not reward the convicted by a technical. ‘wiping out of the.

' gonviction. Thus, under appellant's theory, most persons who are

as fally rehabilitated as: he. would have to register, whereas he,

because of the peculiarity of California law, would not. We do

not think Congress intended suclr a result.” We think that the —

same reasoning is applicable to section 241(a)(11) of the Act and

' California Penal Code §1203.4. The Attorney General has taken —

the same position in his decision in a of A F

8 L &N. Dee. 429, 445-46:

~ Maria Garcla- Gonzales vs.

“The: history of §241 (a) (11) quince me that Comgrens

did not intend that aliens convicted of narcotic violations

- should escape deportation because, as in California, the State

affords a procedure authorizing a technical erasure of the

conviction; Traffic in nareoties has been a continuing and ©

serious Federal concern, Congress has progressively strength-

ened the deportation laws dealing with aliens involved in such

traffic, Thus, as indicated above, in 1940 the deportation

statute wis amended to eliminate the’ requirement that in

Mdition to a cqnviction there must be a sentence. At the same

_ time the statute was extended’ to convictions for violation of

State as well as Federal statutes, And, since the 1956 amend-

- ment an aljen may no longer escape deportability by’ proffer.

ing a\pardon,-In the face of this clear national policy, I do

not believe that the term ‘convicted’ may be regarded as |

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 thé conviction and its

validity have no place. I believe that Congress intended the

inquiry to stop at the point at which it is ascertained ‘that

there has been a conviction in the normal sense in whieh the ..

term is used in Federal law. See Berman v. United States,

302 U.S, 211. (A defendant is convicted even though the trial

court, after imposing sentence, has placed the defendant on

probation). Of course, if the conviction is still subject to

reversal by the usual processes of appellate scrutiny, the

statute is not satisfied. But béyond this I do not think the

inquiry can extend, consonant with the Congressional purpose

and policy. I, therefore, regard it as immaterial for the pur- .

‘poses of: §241(a)(11) that the record of conviction has been:

eancelled by a state pgocess such as is provided by §1203.4

of the California Penal Code and by §1772 of its Welfare.

and Institutions Code. . '

Moreover, to follow the Board’s view errs make the de

portability of the alien depend upon the vagaries of state

law. It has been said that only in California and a few other

States is. provision made for the cancellation of a record of

conviction or for the withdrawal of a plea of guilty, upan

the termination of probation. Probation and Related Measures’

Immigration and Naturalization Service 9

(U.N. Publication No. 1951, IV, 2) 106. And §1203.4 of the

California Penal Code (and presumably §1772 of the Cali-

fornia Welfare and Institutions Code) has been characterized

as ‘without parallel-in the legislation of any other state’ in

providing: for a release of the probationer from all penalties

and disabilities resulting from conviction. 2 Stan. Law Rev.

221, 222 (1949): It is hardly to be supposed that Congress ~

intended, in providing for the deportation of aliens convicted |

of narcotic violations, to extend preferential treatment to

those convicted in the few jurisdictions, which, like Cali- —

fornia, provide for the expungement of a record of —

upon the termination of probation. Paes 7

We applied similar reasoning to 18 US. C. §5021(a) in diieitiiy

Valensuela v. Rosenberg, supra.

We are aware that the Immigration and Naturalization Siinten

has long held that a convicted person who has actually received -

‘ the benefit pf the provisions of section 1203.4 of the California

_ Penal Code cannot be deported under section 241(a), subdivision

(4) of the Act. (Matter of F.. , BILLA. 1942,1 1 & N.,

Dec. 343; Matter of O T _., BLA. 1951, 41 &N.

- Dee. 265; Matter-of E: V y B.A, 1953; 5 I. & N.

Dec. 194; cf. Matter of H............ B.ILA. 1955, 6: I. & N. Dec.

619. The Board of Immigration Appeals and the Attorney Gen-

' eral have made similar rulings as to the effect of a somewhat

-eomparable Texas statute. (Matter of Gu... , BIA. 1941, -

11. &N. Dee. 96; Matter of L i , Attorney Gen-

eral 1957,.7 I. & N. Dee. 322). The Board made a similar ruling

in connection with a narcotics conviction in Matter of D.... i”

1958, 7 I.. & N.. Dee? 670. This, however, was overruled by the —

Attorney General in Matter of A F.. , supra. More-

over, being consistent with section 1203.4’s '$ own terms, the service

has held that a second conviction makes available for deportation

purposes a prior conviction that had been “expunged” under that

section. (Matter of S...... R , B.I.A. 1957, 7 I. & N.

Dee. 495). These decisions relating to subdivision (4) have re-

eently been reaffirmed. by the Attorney General in Matter of

6. 1961, ot & N. Dec. 165, in which he distinguishes

Matter of A F , supra.

10.- * Maria Garcia-Gonzales vs.

We are aware, too, that matters of doubt should be resolyed in

favor of the alien in deportation proceedings, because of the -

severity of the remedy invoked. (Fong Haw Tan v. Phelan, 1948,

333 U.S. 6). Our duty, taking into account applicable rules of

construction, is to ascertain the intention of Congress. We agree

with the Attorney General as to that intention, in reference to _

aliens convicted of offenses mentioned in subdivision ( 11). We

express no view as to subsection (4).

:- Affirmed.

on:

- Maria GaRelA-GONZALES,

14-

‘UNITED STATES COURT OF APPEALS

- FOR THE NINTH CIRCUIT

tt octecmmeniianemnmemmmmenennl

‘

; Petitioner,

reigns ; No. 18,375

' IMMIGRATION AND NATURALIZATION SERVICE, ;

Respondent. J

J UDGMENT

x ou

_ Upon Petition % Review an Order of the

- Immigration and Naturalization Service *

- This ‘jan came on to be heard on the. Transcript of, the }

- “Record from the Immigration and Naturalization Service and was

duly submitted. Bias 7-8

On Consideration Whereof, it i now here ordered and ad-

judged by this Court, that the order of the said Immigration and

Naturalization Service in-this ‘Dagee | be, and hereby is affirmed.

Filed and entered: April 28, 1965.* :

P ins

e tenes,

Hollister, California

| Nov. 14,1961 .

Penta November session of the Superior Court. .

Present: Hon. Edward L. Brady, Judge; Ralph G. |

Towle, Clerk; and J ohn A. Lucchetti, Sheriff, when

the proceedings were had, to wit: ;

People of the State of California | PS,

a VS. ve } | iy o. 1075.

Mary Gonzalez Garcia

_ Defendant, her attorney Raymond Shelloe, District

Attorney John H. O’Brien and Probation Officer

Richard Galli were present in open Court,

An Information having been previously filed herein

accusing Defendant of the crimes of felonies: to-wit:

violation of Section 11500 of the Health and Safety

Code of the State of California (possession of

heroin, two counts), and defendant having plead

‘‘Guilty” to these two counts in the-Information, and

it now being time for report of the Probation Officer

and pronouncement of sentence, the following pro-

ceedings: were had, to-wit:

The report of the Probation Officer’ had been read -

and considered by the Court, Defendant and her at-

Letters of recommendation were handed to the

court and -ordered filed.

Mr. Shelloe made a statement to the Court.

Mr. O’Brien stated that Defendant nae cooperated

with: his office in every way.

Upon being asked, Defendant stated that ie had

‘*no legal cause” to show why sentence should not now

be pronounced.

It appearing to the Court that Defendant is a fit

subject for probation, probation was ordered granted.

- It Was, Therefore, Ordered, -that Defendant be ~

‘admitted to probation for a period of three (3) years,

such period of time to be considered the term.of pro-

bation, subject to the following conditions: .

1. That she serve six (6) months of said term of

probation in the San Benito County J ail and that she

pay a fine of $1000 within 30 days.

2. That she abstain from the use of narcotics and ~

_ intoxicating liquors, and that she refrain from fre-

quenting places where liquor and narcotics is/are suld

or dispensed at all times during the period of pro-

bation, except such restaurants and duly licensed eat-

ing establishments where she may be required ‘to

resort to for meals. ss ;

3. That she obey all laws of the United States and

of the State of California, and all ordinances of any

city or county in which she may be or reside. ” |

4. That she report to the Probation Officer of San

- Benito County once each month, either personally or

' in writing, between the Ist and 10th days, setting

forth her then present address, the name and address

of her rr guring the preceding thirty (30)

17 He on fis cs Oo

days, ant any other information that may be required

of her.

‘5. . That she be entitled to all - provisions of Sections |

1208. 1 and 1203.4 of the California Penal Code. .

. 6, That she not, during the period of probation,

absent herself from the State of California, without

~ first having obtained permission of the Court to do so.

I hereby certify that the foregoing is a full, true

and correct copy of a minute order made and entered

on November 14, 1961.

“Witness my hand and the seal of the Superior Court

affixed this 22nd day of November, 1961.” |

Ralph G. Towle

County Clerk and Ex-Officio Clerk of the Superior’

- Court of the State of California, in and for the.

County of San Benito. »

By Vivian D. Hensen, Deputy Clerk .

Appendix D

Hollister, California

Nov. 5, 1962 .

Regular N sueialiog session of the Superior Court.

Present: Hon. Edward L. Brady, Judge; Ralph G.

- Towle, Clerk; and John A. Lucchetti, Sheriff, when

the proceedings were had, to wit:

People of the State of California '

va, - ‘ ~ $No. 1075 |

Mary Gonzalez Garcia

Defendant and her attorney Raymond Shellooe,

District Attornel John H. O’Brien, Deputy District

_ Attorney Frank Borelli and Probation Officer Curtis

_ R. Miller were present in court. Se

Mr. Shellooe addressed the court.

The above entitled matter comes on, at this time

for hearing termination of probation and to with-

draw her plea of ‘‘Guilty” to the charge in the

_ Information therein and enter a plea of: “Not Guilty”

thereto. 7

Discussion between Court and Counsel.

Deputy District Attorney Frank Borelli had noth- |

ing further to add.

Probation Officer Curtis R. Miller recommended

_ termination of probation and change of plea.

ee hee ee Ne ne ee .

It being reported to the Court that Defendant has

done an excellent job. during her probation, —

It is the order of the court that: Defendant’s pro-

bation be terminated at this time and she withdrew

her plea of ‘“‘Guilty’’ and entered a plea of “Not

Guilty’’ to the charge in the Information therein.

That the action be dismissed and the record of con- |

viction expunged.

I hereby ‘certify that the. foregoing is a » full, true

and correct copy of a minute order made and entered

on Witness my hand and the seal of the Superior »

Court affixed this 5th day of N ovember, 1962. ci

~ (Seal) - ‘Ralph'G. Towle

County Clerk and Ex-Officio Clerk of the :

Superior Court of the State of California,

in and for the County of San Benito.

By Marie Rezendes, Deputy Clerk.

‘Appendix

MATTER oF A I

In DEPORTATION Proceedings

: A-2904545 af,

Board Deoision of September 1, 1959

Decided by Attorney, General October 12, 1959

Deportability—Narcotics offenses, section 241(a)(11)

- of 1952 act—Finality of conviction—Effect of State

expungement law.

Q@) Judgment of State court, after finding of guilt,

that proceedings be suspended and probation

granted upon condition that defendant serve one

year in the county jail constitutes a “conviction”

within the saacaty of section 241(a) (11) of the

1952 act. -

(2) Finding of deportability under section Bes

(11) of the 1952 act based upon conviction of

State narcotics offense is not affected by a tech-

nical “‘expungement” or erasure of conviction

record, as authorized by some State statutes, upon

fulfillment of conditions of probation, such as

section 1203.4 of the California Penal Code or |

section 1772 of the Welfare and Insitutions Code.

(Overrules Matter of D——, 7 I.& N. Dec. 670.)

OHARGE:

Order: Act of 1952—Section 241(a) (11) [8 US. 0.

' 1251(a) (11) ]—Convieted of narcotic ‘violation.

_. BEFORE THE BOARD

(September 1, 1959) —

Discussion: On September 14, 1956, we ‘dismissed —

an appeal from a decision of a special: inquiry officer |

directing the respondent’s deportation. ‘Thereafter, a

suit was instituted for judicial review of the order of

_ deportation which resulted in decisions adverse to the

respondent in the United States District Court for the

Southern District of California (Central Division)

and in the United States Court of Appeals for the

Ninth Circuit (Arrellano-Flores v. Hoy, 262 F.2d 667 ©

(1958). Counsel then filed a petition for certiorari —

in the Supreme Court of the United States which is

now pending.” On May 6, 1959, he filed a motion ad-_

dressed to. this Board seeking reconsideration of our |

‘decision of September 14, 1956. In our order of June

24, 1959, we denied this motion and affirmed our pre-

vious order. On July 14, 1959, the Service requested

that the case be referred to the Attorney General for

review of the Board’s decision pursuant to 8 CFR -

8.1(h) (1) (iii). |

‘The respondent is a 55-year-old married pei satis

and citizen: of Mexico, who last entered the United —

States about June 13, 1954, as a returning resident.

He has resided in-the United. States since 1925 when -

_ he was admitted for permanent residence. On March

*Cert. den. 362 U.S. 921 (1960).

. 22

9, 1956, a judge of the Superior Court of California

. found the respondent guilty of a violation of section

11500 of the Health and Safety Code of that State in

' that he did ‘‘sell, furnish and give away flowering -

- tops and’ leaves of Indian Hemp” also known as

cannabis sativa or marihuana. On April 6, 1956, the. |

court directed that proceedings be suspended and that

probation be granted for five years, one of the con-

ditions of probation being that the respondent serve

one year in the county jail. It was on the basis of this

conviction that the special inquiry officer and this

Board held that the respondent was eee under

sUS .C. 1251(a) (11).

7 The respondent’s counsel. stated in his motion of

May 6, 1959, that it was predicated on Matter of -

D—,, 7 I.&N. Dee. 670, formerly Int. Dec.’ No. 916,

decided March 6, 1958. His position was, in effect,

that Matter of D—— required termination of this

deportation proceeding, and he also contended that

- there had been no final judgment of conviction in the

respondent’s case. In our decision of June a 1959, we _

explained why the facts in Matter of D——, supra, -

- were not analogous to those relating to the renpendanit

' and we affirmed our previous order in which we had

held this respondent deportable. The. sole contention

raised in the Service motion of July 14,.1959, is that -

_ there is a conflict between the decision in the respond-

ent’s case and the decision in Matter of D-—,, supra.

' While not specifically stated in the motion of July 14,

1959, it is apparent that the Service agrees with our

decision that this respondent is deportable and agrees

23.

with the statements which we made in our order’ of

‘June 24, 1959, that there was a final judgment of con-

viction in the respondent’s case. The motion contains

the statement that it is the view of the Service that,

Matter of D——., supra, erroneously states the law, -

and the Service obviously urges the overruling of that

decision.

Matter of D. ——, supra, involved an alien who was

approximately 17 years old at the time of his convic-

_ tion, and he was treated as a youthful offender. About

one year after the conviction, and pursuant to section

1772 of the Welfare and Institutions Code of Califor-

nia, the court entered an order setting aside the alien’ Ss

plea of guilty and dismissing the information. We did

not, as asserted by the Service in its motion, state in

our previous order that the conviction was expunged

under section 1203.4 of the California Penal Code. We

did state that, although the present. resporident was 51

years old when the narcotic violation was committed,

we did not regard this factor as distinguishing the _—

case from Matter of D—— because of the possibility

that this respondent might at some future date have

his conviction set aside under section 1203.4 of the

California Penal Code. Section 1772 of the Welfare -

and Institutions Code and section 1203.4 of the Cali-.

fornia’ Penal. Code were quoted in’ footnotes 1 and 2

of the decision in Matter of D——. They are sub-

stantially similar in their provisions that, under speci-

fied. conditions, the court may set aside the verdict of

guilty and dismiss the accusation or information. See-

tion 1772 is limited to youthful offenders, Since only.

Wer

section 1203.4 would have any relevance in this

respondent’s case, we will discuss the question under

that statutory provision although our statements

aes would be equally applicable to section 1772.

Section 1203.4°of the California Penal Code pro- .

vides, i in part, as follows: f

Every defendant who has fulfilled the condi-

tions of his probation for the entire period

thereof, or who shall have been discharged from

. probation prior to the termination of the period

thereof, shall at any time thereafter be permitted

‘by the court to withdraw. his plea of guilty and

enter a plea of not guilty; or if he has-been con-

victed after a plea of not guilty, the court shall .

set aside the verdict of guilty; and in either case

the court shall thereupon dismiss the accusations

-or information against such Meter who shall

thereafter be released from\ all penalties and

disabilities resulting from the offense or crime of

which he has been convicted. * * * provided, that

in any subsequent prosecution of such defendant

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 ~

accusation or information dismissed.

The proposition urged by the’ Service in its motion

of July 14, 1959, is that an alien convicted of a crime

which rendered him deportable continues to be deport-

able on the basis of that conviction even after the -

court has set aside the conviction under section. 1203.4

of the California Penal Code. While the motion dis-

cusses only this statutory provision of California,

acceptance of the proposition advanced by the Service.

‘oiaa logically require - a icisaieihan that the setting

aside of a conviction, in aécordance with similar stat-

utory. provisions of other States, likewise would be in--

effective to prevent deportation.

- Matter of P-——,5 1. &N. Dee. 392 (1953), involved _

- the question of whether there had been a conviction _

for immigration purposes under the following cireum-

stances. The alien, in a Massachusetts criminhl pro-

ceeding, had been sentenced to imprisonment for one ;

year and the sentence“was suspended. ‘After: the ex-

piration of one year the sentence was revoked and the

case was placed on “‘file’’. We held that there was a

conviction rendering him deportable. The lewer courts

agreed that this alien was deportable but the Supreme

_ Court reversed, stating that it was unable to say the

conviction had attained such finality as to support an

order of - deportation (Pino v. Landon, 349 U.S. 901

(1955)). Thereafter, we held in another Massachu-

setts case that the conviction was. insufficient for

deportation purposes where, after completion of pro-

bation, the sentence was revoked and the. complaint ‘

was dismissed | (Matter of i—, 7 I. & N. Dee. 171 |

(1956) ).

In a case where the ccsivietion is expunged under

" section 1203.4 t of the’ California Penal Code, the plea

of guilty. i is ‘withdrawn or the- verdict of guilty is set

‘asides and thereupon. the accusation .or information

against the defendant is dismissed. If the Supreme

Court. was unable to find finality of conviction in Pino

u. Landon, supra, where only the sentence was re-.

voked, we do not .understand- how the Service can

shiaintatti that iii in finality of edgetion ii nN CANO

under section 1203.4 where the verdict of wuilty 4 is wot

aside and the actuasation is dismissed. In such'a case,

: hot dtily is there no finality of sonviction, but there is’

in contemplation of law no conv ietion whatever,

Tn ve Ringnalda, 48 KF, Supp. 975-8.D, Cal, 1943),

~-velated to the question of whether an alien was quali-

fed for naturalization, and the particular point dis-

—gusved was the effect of the expungenient of a convie-

tion under section 12054 of the California Penal Code,

It was stated (/p. 976): that, through these proceedings,

the defendant: stands cleared of guilt, and the court,

Cited with approval a California. decision which had *

held-that the intention fi the legislature was to wipe

out absolutely the entire proceedings and to place the - :

-. defendant in the position which he would have occu-

pied if-no accusation or information haa ever been

_ presented. against: him. : :

It might be asstimed from the motion of the Service

. that Matter of D——, supra,. formulated some new |

policy of terminating deportation proceedings where

the record of conviction had been expunged. Actually,

that is not the case.. On the contrary, it has been the

established and ‘accepted ‘view of the Service and of

this Board for many years that in cases where a court

has. expunged the record of an alien’s conviction, the

_ conviction cannot thereafter serve as the basis for de-

porting the alien or excluding him. In its request of

July 14, 1959, the Service urges only that Matter of.

D—, supra, be overruled. . However, in reality, it is —

seeking to overthrow the long-standing practice we

PLT

Mittens teak

-F

have mentioned without even commenting on its exist- :

ence. The cases ‘next cited confirm the existence of

this rile, :

In Matter of es 11. & N, Dee, 06, a decision

approved hy the Attorney General on January 14,

1942, there was involved article 780 of the Texas Code

of Criminal Procedure which permits certain defend-

ants to move fort a new trial and dismissal of the CASE.

after the expiration of time assessed as punishment by

the jury. There, following the conclusion of the de-

- portation hearing and: pursuant to this statutory pro-

vision, the Court entered an order granting a new

trial to the alien and dismissing. the cause, We said

(at p. 97) that deportation could not be ordered on

the ‘basis of the conviction of crime because “today

_ there is not outstanding a conviction of the respondent

. for this ciime.” Since there was in that case no fur-

ther discussion of this matter, it-seems obvious that

the proposition that the expungement of a conviction

- rendered the conviction ineffective to support an order

“of deportation was believed no longer open to ques

. tion at the ‘time Of our decision in that case in- 1941. -

‘The only question which it. was considered necessary

to discuss there was whether the alien’s original plea

of guilty to the offense constituted an admission of

' the crime for immigration. purposes..

Article 780 of the Texas Code of Criminal a

cedureé- was also pertinent to the decision in Matter of

L——_R——,, 7 I. & N. Dec. 318: In that case; sentence

was suspended on recommendation ‘of the jury. On

February 18,.1957, the Attorney General ordered ter-

Wination of the deportation proceeding and held that:

the wonviotion lacked Mnality, ‘Phere, the period af

PET ONE dred had Hot expired and the eonvle

Lion Tad net been expunged when the ene war eon

widow ly dhe Attorney General, but the deelaion

tamed on the apecitle lange of Article 774 of the

‘Von law, colatiigg fo pended aentenees, whieh be

to the effoot (hat neither a ventiet of conviction nor

the judgment entered thereon beeonien tial inte

thor haa boon a fil eonvietion for anather felony

trig: the period of cuxpetdon of the sentence, Nin

Vln langage ie not contained’ tn the California statute

writer discussion, However, 1F the convietion leked

finality wider the civoutatanees proment in datler of

Ry ape, the Serview ean hardly be correct

iv its view that there was a flat couvietion in Maller

af Dy sap, sinoe in that ease the eonvietion had

alway boon expunged at the time the eae war-cot:

it agi |

ln Matter of O--—T—— , 4-1. &N, Doo, 265, whieh

ISM, it was stated at page 260, The Service and tho

BoanLoaf Launigration Appeals have held in numerous

cases that the proceedings under Section 1208.4 [of

‘the California Penal Code] expunge the record of

| eeviction and that facreafter it may not serve as the

basis for an ornder.of deportation’ (emphasis. sup-

pik). The cases cited in that decision show that this

had been the rule concerning Section 1203.4 since ‘at

‘feast IMS. and the matter was so well settled that the

en ee he Se ae tate

ve ee

mmc pi lonis fo Mee rile, Da nition te Malley of O

Ty amp; Dive erm boston cof thier vaitee ie Minehentend

ly Muller of Woo V AD MN, Deas, 1A CNY 5

Matter uf We AON, Dew, OY (NSH) 5 sal

Matter of MWe TALON, Dee, Ab (IVT), in

woof whieh seetion ty0H4 of thee Cali tinnin Veril

Gale wis invelyedl, i

In Matter of Dy aapra, whieh the Mevvies ssys

A in eontliet with tee decision in the vespwnbent's

CHa Chee special Inquiry officer, in Merininnting te de

portation proemaling, widen vefeer ved tay Whee well et tfod |

tile mentioned whove nnd stated that setion IBA

of (he Onlifornin Vernal Cade til “uniformly beverni

hell ta expe sand verve: thee conviction sa 9 Nexen

for deportation” Un our decision of March 6, 196m,

bn Chiat, ene, wee stated Cp GTA, thet the anion taker

hy the California Court vemuved the alien's umvicien

nw i bnsin. for deportation, and we afirmed the apecial

inquiry officer's order terminating the proceeding, If

thin Board erroncoundy stated the law in Matter of

Do, supra, ws contended in the present tiwhion, we

do not understand why the Service did nt even file —

no motion for reconsideration of that. decision at the

time it was rendered, |

When the Service » SUITE,

that the special inquiry. officer had erred im terisi-

nating the deportation proceeding, this was hesend ons

the fact that the alien was charged with being depart

able under 8 U.S.C. 1251(a)(11) and that * CSL.

1251(b), as amended July 18, 1956 (1958. ed). pe

vided, in effect, that a pardon would wA relieve —

deportation an alien deportable under 8 U.S.C. 1251

(a)(11). It was contended by the Service that an

expungement of the record of conviction in California

was the equivalent of a pardon and that, therefore, ex-

pungement of the conviction did not relieve the. alien |

from liability to deportation. That was the sole argu-

ment advanced by the Service in that case. The

_ Service made. no attempt there to contradict the

special inquiry officer’s statement that the expunge-—

‘ment of a conviction in California had uniformly been

held to remove the conviction as a basis for deporta-

tion, nor did it request repudiation of the rule. On

the contrary, Matter of D—— , supra, would seem to

indicate acquiescence of the Navi in the rule as to

deportation under 8 U.S.C. 1251(a) (4) for convictions a

involving moral turpitude with a request for an ex-'

ception to the rule in the cases of deportations under

8 U.S.C. 1251 (a) (11) relating to narcotic convictions.

On page 2 of its motion, the Serviée quoted a state- .

ihent from Arrellano-Flores v. Hoy, supra, at page

668, which is to ‘the effect that the Court could not —

ignore what transpired in the criminal proceedings

but that possibly Congress intended to do its own

_ defining (of ‘‘convicted’’) rather than leaving the

matter of what constituted a conviction ‘for deter-

mination under the statuté of the particulat state. .

Actually, the word ‘“‘convicted’’ is not one of the

terms which was defined in 8 U.S.C. 1101, but the ~

decision in Pino v. Landon, supra, must be considered,

of course, -an interpretation of ‘‘convicted”’ limiting

it to convictions which have sufficient finality.

—

The opinion of the Court of Appeals in this re- _

spondent’s fase shows that the ‘statement quoted by

the Servied related to a contention of the respondent

based on a decision of the Seventh Circuit that one:

Freislinger had not been convicted under Illinois law

because a final judgment of conviction had not been

entered. In holding that this respondent had been

“convicted,” the Court of Appeals did not base its ©

decision upon the proposition that the provisions of .

the California statute or what trarispired in the crim-

inal proceedings should be disregarded. On the con- |

trary, in the next paragraph followirig the one quoted

by the. Service, the Court of Appeals stated ‘that Cali-

. fornia would consider that on this record there was a

conviction. Parenthetically, we observe that the Court

“had also stated at page 667 of the opinion that under

California law such a sentence as was prescribed with

respect to this respondent does not constitute a final

judgment from which an appeal may be taken, citing

In re Marquez, 45 P. 2d 342. That case was decided in

1935. However, section 1237 of the California Penal

Code,°as amended in 1951, relating to cases in which

the ——? may a ppeal, contains the specific state-

ment, ‘‘an order granting ‘probation [which is what

occurred in the respondent’s case] shall be deemed to

be a final judgment — the ees of this sec-_

tion:’’ nee

With reference to the above-mentioned ‘asic

by the Service from the opinion of the Court of Ap-

peals, it is‘followed by this statement in the motion

of July 14, 1959: ‘It is.the Service view that this

statement correctly reflects the Congressional intent,

and that a conviction. has occurred within the meaning

of the immigration laws, notwithstanding subsequent

legal process under the California statutes whereby

. this record of conviction ceases to exist for some pur- |

poses.” On page 3 of the motion it is stated that, ‘‘in

asserting that an alien is properly held not deportable —

where the conviction has been expunged, the Board

has asserted a legal principle contrary to that set” -

forth in the Ninth Circuit in. the instant case.’’ We

' - consider it appropriate té6 comment on two matters

raised by these statements of the Service.

In the first place, we understand from the two

statements mentioned above that it is the view of the.

Service that Arrellano-Flores v.-Hoy, supra, holds

that this respondent will continue to remain deport-

able even if his conviction should. hereafter be ex-

punged under section 1203.4 of the California Penal

Code. However, the decision of the Court of Appeals

- shows that it did not even consider the effect. of a

possible expungement of the record of conviction.

The Court of Appeals stated in its opinion (p. 667)

that the principal issue was whether the alien had been _

‘““convicted”’; that the judgment of the State. Court

was that the proceedings be suspended and that pro-

bation be granted upon the condition that the alien

serve one year in the county jail; and that, because of

this ‘rubbery end’’ to the trial, the alien says he has

not been “‘eonvicted’’ but just found guilty. In_other

words, the respondent’s contention before the Court

of Appeals had nothing to do with section 1203.4 but

only with his claim that he had .not been convicted

because, although he was required to serve one year’s

| imprisonment, the State Court had actually suspended

_ the imposition of sentence. (We-had previously held.

in Matter of O—, 7 I. & N. Dee. 539 (1957), that

| there was finality of conviction where imposition of -

sentence was suspended.) -Sirice counsel, before the

Court of Appeals, didnot. even raisé his contention

that the respondent should not be deported because

of the possibility that he might be able to have the

record of conviction expunged at some future date .

. and inasnitich as that question was not considered by

the Court of Appeals, we believe it is clear that the

decision in. Arrellano-Flores v. Hoy, supra, cannot |

be considered as offering any support for the conten-

tion of -the Service that an alien remains deportable

after his conviction has been expunged.

Our second comment concerning the two statements

of the Service mentioned above is with respect to that

part-which is to the effect that, when a conviction has

been expunged under section 1203.4 of the California

Penal Code, it ‘‘ceases to exist for some purposes.”’

Section 1203.4 specifically provides that upon: the

- Court’s dismissal of the accusations or information ©

_ against the defendant, he “‘shall thereafter be released

from all penalties and disabilities resulting from the

offense or crime of which he has been convicted.” The

comprehensive language which was:used does not indi-

cate that the conviction ceases to exist only for some

- purposes. The one statutory. exception is contained i in

the proviso’ quoted above, which is part of section

1203.4, to: the effect that in any subsequent prosecution

_ the prior conviction may be pleaded and proved and — |

shall have the same effect as if the information had

not been dismissed. — . ;

‘The Service also stated that this Board has recog- -

‘nized that the expunging of the record of conviction

in California does not completly obliterate the fact

that the unlawful acts occurred, citing Matter of

H—, 6 I. & N. Dec. 619; Matter of S——R——, 7

I. & N. Dec. 495; and In re Paolt, 49 F. Supp. 128 |

(N.D. Cal., 1943). The statement itself is correct and

we agree that we have said this.

The statement mentioned in the preceding para-

graph appears to have been first discussed in Matter

. of O——T——, 4 I. & N. Dec. 265 (1951). There an.

‘alien was cats of petty theft in 1940 and ih 1949

deportation proceedings were instituted on the basis

_ of this conviction. Thereafter, the conviction was ex-

punged under section 1203.4 of the California Penal

Code. After commenting upon the fact that it had been

held in numerous cases that following such expunge- .

ment the record of conviction could not serve as the. -

basis for deportation, it was stated that reconsidera-

~~”. tion of the question had been requested. by a reviewing

officer. beeatise of the decision of the Supreme Court

of California in Meyer v. Board of Medical Exam-

iners, 206 P. 2d 1085 (1949): The Meyer case involved

- suspension of a physician’s license:and the Court had

said that the expungement of a conviction does not

obliterate ‘the fact that there has been a final adjudi- |

‘eation of guilt of the crime. , .

NAAR

= ata tt

. 85

supra, was a decision of the Central Office of the ;

Service and, after reviewing a number of California.

' cases, the final conclusion was that no change was

warranted in the view that the deportation charge is

not sustained where the record of conviction has been

expunged. Since the Service itself considered the issue

raised, by the Meyer case when it decided in 1951 to |

adhere to the previous practice, there is an incon-

gruity connected with the Service now bringing up

the same’ factor in urging reversal of the well-settled —

rule that an alien is not deportable~< on the basis of a

conviction which has been expunged.

Although we said in Matter of H——, supra, and

Matter of S——R,——supra, that the snnendidis of

the record of conviction does not completely obliterate

the fact thatthe unlawful acts occurred, it is, signifi-.

cant that each case clearly shows that no ¢hange was

being made in the rule. which had been in effect since | |

at least 1943 -that a deportation charge is not sup-

ported by a record of conviction which has been ex-

punged. Matter of H—, supra, even went a ste

_ beyond this. There the alien had been convicted of two

offenses involving moral turpitude during the pre- ;

ceding five years and the records of conviction had

been expunged under section) 1203.4 of the California -

Penal Code. In that case there was no attempt to

aia a deportation charge on the expunged con- .

ictions, and the question involved was whether, under

section 101(f) (3) of the Immigration and Nationality

Act [8 U.S.C..1101(f) (3)], the alien was precluded

from establishing good moral character because of the —

_ two offenses wihiok he had committed ti the five-.

year period. We held that ‘the expungement of the

. convictions removed the statutory bar to proving good.

moral character and we found the alien eligible for

voluntary departure. Our decision was approved by.

the Attorney General on October 18, 1 p95.

We do not Ruisider that In re Paoli, supra, is of

any value. in supporting the present position of the

Service. That case involved an applicant for natural-

ization. The Court held that an expunged conviction

could ‘be considered on’ the question of whether the

applicant had established good moral character but a

principal reason for the conclusion was that the Court,

in naturalization cases, could find lack of good moral |

character merely on the basis of unlawful acts com-

mitted by the applicant repardless. of whether the =

plicant had ever been prosecuted therefor. 3 en

_ ‘On pages 2 and 3 of its motion; the Service mio

to the fact that an offense which has been expunged ~_

may be pleaded and proved during the prosecution of

a second offense and, as wé have indicated above, this —

‘is a specific provision of section 1203.4 of the Cali-.

fornia Penal Code. The Service then says: “If so

pleaded and proved, it would, in the Board view, have

_ the incidental effect of resurrecting deportability.

There is also a reference to the “vacillating rule’’ of

the Board. We believe the Service is well aware that

we have not held, nor have we said, that.an alien who

_ was not deportable on the basis of an expunged con-

viction, becomes deportable on the same conviction if |

vieted of a violation of * * * any law * * *

the. first conviction. ‘was . pleaded and provad. in a

second prosecution. Actually, in Matter of S——

, it was the Service whieh”.

argued that, in Ceiruiaiads with the proviso of section

- 1203.4, a subsequent prosecution automatically revived

an expunged conviction. We declined there to follow

that view. Under the circumstances, these remarks of

the Service are unwarranted. .

‘The Service also referred - our interpretation of

a Federal statute “in which the Congress saw fit to

"state that an alien who had committed the particular ~

crime or crimes, and as to’ whom the judicial process

~ has acted with sufficient finality to adjudicate the i issue.

- that he was in fact guilty of that crime, was not a

proper person to continue to reside in this country.” -

‘The-statutory provision on which this deportation is

predicated is section 241(a)(11) of the Immigration

and Nationality Act [8°U.S.C. 1251(a)(11)}' and the

part which is pertinent to this case is that requiring ©

the deportation of an alien. “* # * who’ a con-

the * **- sale * *-*, of * * * marihuana * * *.”” The

Congress | did not define “‘convicted’’ nor does the -

statute contain any of the language which the Service

seeks ta ascribe to the Congress. The q stion under -

8 U.S.C. 1251(a)(11) is simply whether/an alien has.

‘been ‘‘convicted’’ of any of the narcotic @ffenses men-

tioned therein and whether there is finality of: convic-

tion in accordance with Pino ‘v. Landon, supra. We

have held that this respondent was convicted and that

he is deportable. Wheré.the record of conviction has

ntrolling

is 3

-been expunged, as in Matter of Draceiss! supra, it is our

: ">~eonsidered opinion that the expunged conviction can-

not support, an order of’ pee. We hold, there-

. fore, that Matter. toa D—, supra, was correctly de-

cided and»,.that no change, is warranted in that

decision. ©°

We turn now to the contention of the Service that _

there is a conflict between our decision conceming this

respondent and the decision in Matter of D—~, supra.

Our position is @ that. an alien may, be deported

even though there is a possibility. that, at some future

date he might be able to secure the expungement of -

his conviction under the law of the state where the

conviction occurred, and (2) that an alien is not de-

portable on the basis of a conviction which has been

expunged. This is the distinction between the two

eases. In the‘respondent’s case, the conviction has not _

been expunged, and there is no assurance that it ever

will be expunged. Accordingly, we hold that: he is de-.

portable. In Matter of D—-, ‘supra, the conviction

had beeri expunged and we held, therefore, that he was

not deportable. The Service understands that we had °

made this distinction in our previous order. Howéver,

its motion of July 14, 1959, seems to indiéate that the —

. Service believes there is something anomalous about ©

the fact that an alien can be deported before his con--

~ vietion is expunged but the same alien for the ‘same.

erime cannot be deported after the conviction has been

expunged. Apparently this is advanced as an’argu-

ment why there is a conflict between the two decisions.

However, in view of the distinction between the two

ia : . 39° . Sy °

“eases which we have pointed ike we do not consider

that there is a conflict nor that. the Neng a

* valid one. »

A situation ania to the toregiing is aiaiale in.

every deportation: ‘under 8 U.S.C. 1251(a) (4) predi-

cated on conviction for a crime involving moral tur-

pitude. There, deportation is lawful if the alien is_

, deported before he can secure a pardon for the crime,

but, if a deportation proceeding i is instituted and the

alien then obtains a pardon during the pendency of

the proceeding; he. cannot ‘thereafter be deported on .

the basis of the pardoned crime. As we stated in our

previous order, there have been many cases in which .

aliens have been found deportable under 8 U.S.C. 1251.

. (a): (4) and subsequently obtained pardons after which

- the deportation proceedings were terminated. In Hou- "

' yardas v. Wixon, 169 F.2d 980 (C.A. 9, 1949), cert.

“den. 336 U.S. 913, it was held.that the alien was de. >

portable. although he was eligible for a pardon and .

the Court apparently believed that the delay in secur-

ing a pardon was not the fault of the alien. In Matter

of R——R—., 7 I. & N. Dee. 478 (1957), we held;

with respect to a Texas statutory provision similar to

section 1203.4 of the California Penal Code, that the ©

fact that the conviction may be expunged upon satis-

. ‘factory fulfillment of the conditions of probation does

not affect the finality of the conviction during the. .

period of probation.. Hence, these cases. illustrate the

_ invalidity of the Service view that there is something

repugnant about the fact that an alien can be deported

sey to the expungement of the cunvicdon and cannot

a et gt soe senidus _— .

£@

“ | be deported if the conviction has been expunged be- ie

fore deportation takes place.

‘As we have indicated above, our positipr:’ that an

- alien cannot ¥6é deported after the conviction has been

‘expunged i is not something | which originated in Matter

of D——, supra, but was acknowledged by the Service —

as being well-settled when it decided in 1951 in Matter

ea of 0—-T—, supra, that no change was warranted _

in that rule. On the other, hand, the fact. that there is.

a possibility that an alien’s conviction may be ex- |. |

punged at some future date has not heretofore de-

terred the Service from instituting deportation pro- —

ceedings. For example, ‘that is the situation in this -

" respondent’s case; in Matter of O —_T—.,, supra,

the decision shows that, after the deportation proceed-

ing had been instituted, the record of conviction was —

expunged and the proceeding was then terminated;

—.. and that was true, ‘also with respect. to Matter of

D——, supra, in. whish _the record of conviction was

expunged da August: 31, 1957, and the special inquiry

‘- officer’s decision’ in that case ‘shows that the ordér to __

_ show canse instituting the proceeding was served prior

_ + thereto—on March 12, 1957.

In disagreeing with the proposition that an alien’s

deportability may depend upon whether he succeeds _.

in having his conviction expunged before deportation

takes place, the Service speaks. of the “procedural |

requirements” of the: California statute coming into

play as though every defendant who has completed

his probation is entitled to have the conviction ex-

‘punged. oe is — from section, 1203.4 of the Califor-

a rece

o Ps im”) oye

nia Penal Code that sites is ion the case because it is

specifically limited to a:defendant ‘who has fulfilled

_ the conditions'of his probation for the entire period

thereof, or who shall have been discharged ‘from pro-

bation prior to the termination ‘of the: period thereof.”

Henee, if a defendant. is ‘not within either of these

categories, he is not entitled to have - conviction

ido i

* The present pebaidelt was on. Apri 6, 1956; placed

on probation for five years. We do not know whether ©’.

he has thus far fulfilled the conditions of his pro-

te bation or whether he will continue to do SO until the

| : Tequested.

expiration of five years on April 6, 1961. For that

reason, we said ‘in our order of June 24, 1959, that

section’ 1203:4 of the California Penal Code does not .

assure the respondent that. his conviction will be’ set _

aside, and the mere fact that such a possibility sexists.

does hot seem to us a proper basis.for- ‘terminating this *

deportation proceeding as counael for the. respondent 7

For the reasons er above, ¥ we e hold that there. is

no conflict between the rule which has been in effect

since 1943 concerning section 1203. 4 of the California

- Penal Code (or Matter of Deen , supra) and the de-

- eision which ‘was rendered in jie respondent’s ‘ease.

We adhere to the 1943 rule that a conviction which

~ has been expunged will not support an order of de-

portation. While counsel for the respondent had also

claimed that there was a conflict between the decision

in the ‘Tespondent’s ease and the decision in Matter

of D—— » Supra, his — was the opposite of that

-urged by the Service, that is, counsel contended that

Matter of D-—, supra, had been correctly decided —

and that it required termination of the proceedings 7

| against this respondent. Our reasons ‘for rejeeting his:

- 24, 1959, and need not be further discussed. The Serv-

“jee has not expressed disagreement with any. of the

statements which we made in our previous ‘order. in

connection with our rejection of counsel’s contentions ~,

‘except regarding the question /of whether there was |

a conflict between Matter of: D——, supra, and the

- decision in the respondefit’s case. That point was dis-

cussed in the decision of June 24, 1959, as well as in ~

_ the present order. As requested by the Service, this

case will be certified to the Attorney General.

ORDER « It is ordered that: our orders of Septem-

_ ber 14, 1956, and June 24, 1959, be affirmed. ;

It is further ordered that ‘this case be: referred to

the Attorney General for review under 8 CFR 3.1 (h)

3 BEFORE THE ATTORNEY GENERAL

é (October 12, 1959) | )

The Board of Immigration Appeals, at the request —

‘of the Commissioner of Immigration. and N aturaliza-

tion, has referred to me for review, as as provided by 8— es

CFR 3.1-(h) its order of September 1: 14, 1956, dis- .

missing the respondent’s appeal from the order of a

special inquiry officer directing his deportation and __

its order of June 24, 1959, denying respondent's mo- -

tion for reconsideration.

» Q) (iii) in accordance with the request of the Service. = oe

_—

iv] °

; 43

| ° ‘ =

The special inquiry officer directed the respondent’s..

deportation on the ground that he was an alien who —

had been convicted of a narcotic offense. Section 241°

— (a) (11) of the Immigration and N ationality Act, 66

Stat. 204, as amended, 8 U.S.C.'1251(a) (11), provides .

in pertinent part for the deportation of ‘any alien: :

* * * who at any time has. been convicted of a a - |

violation ‘of, or a conspiracy. to violate, any ae

a regulation relating to the illicit possession of

. or'traffic in narcotic drugs, or who- has-been con-—

- vieted of a violation of, or a conspiracy to violate,

- any law or regulation governing or controlling. , ,

_ the taxing, manufacture, production, compound- — .

ing, transportation, sale, exchange, dispensing,

giving away, importation; exportation, or’the pos- <e,

session for the purpose of the manufacture, pro- =. «

duction, compounding, transportation, sale, ex- .

. change, dispensing;.giving- away, importation, or = Bi

, Saree of Sac narcotic the ra 8 sides OP ean toe

—~On N oesthber 14, 1955, an sicceiiasidl was filed

against respondent in a Superior Court of the State ss

of California charging him with having ‘unlawfully -. een ae

sold, furnished, and given away, flowering téps:and = 3 §

leaves of Indian hemp (cannabis sativa) (marihuana)

in violation of section 11500 .of the Valifornia Health.

_ and Safety-Code. After trial respondent was found

- guilty of the offense, and on April 6, 1956, the Ceart

entered the following order: |

Proceedings suspended, Probation erantek nn

five years, condition, one year County Jail; resi-

dence and employment to be approved by. Proba- |

tion Officer; no nner stay away from pee

. . “* , .

eetasiaimeaen tieciadaminemeomees noaetaaan ete nde ss nrenetennts

: a

fons and places where riaibotlen 0 are itised ; obey. all |

laws and rules of Probation ‘Department.

ieaces “he respondent has sanveh one year in the coninty

+ Sail; his term of probation will not expire until April |

(6 1961 'The Board of Immigration Appeals dismissed .

"_respondent’s’ appeal from - the oa. of =

“without opinion, —

Respondent: thereupoti instituted an. action in ke

= - United! ‘States District Court for the Southern District

“of Galifornia challenging the validity.of the deporta-—

| "tion order, - ‘The district court upheld the order. The .

~ judgment of the district” court was affirmed by the .

Qourt-of Appeals forthe Ninth Circuit (Arrellano-.

—~" Flores v. Hoy, 262 F.2d 667 (1958)). The Court of

ae _ Appeals stated that the respondent's principal con-

tention was that he had not been “‘convicted”’ within

eS meaning of section 241(a) (11) ‘of the Tmmigra-

tion. \and- Nationality Act, since “‘(t)hé judgment of |

the state court, after the finding of guilt, was that, the

proceedings ‘be suspended and that probation™ be. - nem

the condition that appellant: serve one : L

year in the county jail.” The Court rejected this con- et

tention, holding that whatever: might, be the state law

as to whether there had been a conviction Congress

> > <<

intended. the question to be lphtinainet by reference ee

to federal law. The Court. stated (p. 668) :° oF ei

Whilé ‘one cannot close one’s eyes to the itate’s-

statutes. and what transpired in the state’s pro- -

ceedings, we are inclined/to the belief that per-

haps here Congress. intended to do its. own. defin-

',. ing rather that-leave the matter to the variable

_state—statutes, Credence for this. view. can be

-—~found in the fact the present statute réads#*con

victed”’ while its predecessor, 46 Stat. 1171 (Chap.

924), read: ‘convicted and sentenced,’” It would

_ appear that federal courts have generally taken

' the view that a plea of guilty or a finding of .

_ guilty, which is in repose. and remains undis-

turbed, amounts to a conviction. See Kercheval

wv. United. States, 274 U.S, 220. ig denn

But if our question i is whether California would

consider on this record there was a, conviction

ae it is clear that California has answered in

affirmative. In re Morehead, 107 Cal. App. 2d

2 Tue. shales weil suhseclnie ieatene ti-eb-che hee ot Webs” EKO St

‘. yuary 18, 1931,. 46 Stat. 1171. The words “and sentenced” were - . we 5

eliminated in 1940, 54 Stat. 673. That act also extended deporta-

‘bility ‘to aliens convieted of a violation of state as well as federal

narcotic laws. These changes were carried forward into the 1952

act. The legislative history of the 1940 amendments does not dis

close any specific discussion as to the change from

sentenced” to “convicted.” See Hearings before a Subeommittee

. §138,; 76th Cong., H.R, Rept. Nos. 994, 2683, S. Rept. No. 1796,

86. Cong. Ree. 8340-49, 9029-36.

A further amendment was made by the Nareotie Control Act of

vietion of narcotic offense. ‘See Gotdon and Rosenfield, Imai

ee ee ; . \' :

; ;

° . .

‘ ‘

* 46 } ae

° . _- - e aime S

’ a Se? °

+ $s P g .

gab, 287 P, 2a 335; Peagle} lv. Ghrisiman, 1 Cal:

“App. 2d 158, 106 P. 2d 32,*

The respondent theresa’ filed - a petition’ i in the

Supreme Court for a.writ of certiorari. That petition

is now pending. * In May 1959, the Solicitor eR ;

~ the Court ‘that after the petition had been filed, ‘‘i

was discovered that the Board of Immigration is:

peals had Yendered a decision. (Matter of D—,7 I.

ON. ‘Dec, 670 (March 6, 1958)), subséqtient to the:

“decision i in this cake, which may be inconsistent there-

with since it’ expressed the view that & person who is .

‘released from all penalties and disabilities pursuant

— to section 1203.4 of the California Penal Code, after a

period : of probation," is not a person ‘convicted’ for’

the purposes of deportation. ”” It was further stated.

-_ that on the basis of the latter decision the petitioner oe

(the respondent herein) -had moved the Board wal

" - ¥Phe Court of Appeals stated-.(p. \667), citing In re ‘Mareen '

_ 3 Cal. 2d 625, 45 P. 2d 342 (1935), that under California’ law

“such a sentence as was prescribed here does not constitute a final

judgment from which an appeal may be taken.” The court appar- |

ently overlooked the 1951 amendment’ of § 1237 of the California

ar rg Pat wg tl mimes at on et Eaniing

(asa). ak

” ®Cert. den. 362 US. 921 (1960). -

‘Section 1203.4 provides that a defendant who ess fulfilled the -

_ eonditions*of his probation may be permitted by the court .“to

withdraw

his plea of guilty and enter a plea of not guilty; or if

- he has been convicted after a plea of not guilty the court shall

set

aside the verdict of guilty; and in either case the court shall

_ reconsideration; and in view of -the ‘fact that -“‘the

administrative, position as to the effect’ of a’ Chlifornia-

judgment of probation is thus. preseptty< under re-

. examination,” the, Court was-requested. to defer action.

_ on the. petition ,until after the ultimate determination

of petitioner’s motion for reconsideration.

On June 24, 1959, the Board denied respondent’s - .

, motion for reconsideration. The Board held. that its ¥

- ~ decision in -Matter of D-—, supra, did not réquire a

different determination in respondent's case, stating ,

that while the cases were similar in both, involved like -

‘statutes, namely § 1772 of the California Welfare and

Institutions Code and § 1203.4 ‘of the Penal Code,°—

-* * * we are convinced that. there is no statutory:

authorization’ for ying with. counsel’s ‘re? —

quest that the deportation proceeding be termi-

‘In Matter of D—, 7 I. & N. Dee. 670, the respondent, as in

_this ‘case, was charged with being deportable pursuant to ‘§.241

(a)(11) of the Immigration and Nationality Act. in that he had

been convicted in California for unlawfully selling marihuana.

: ‘By order dated June 20, 1956, the court committed the respondent...

to the Youth Authority of California for the term preseribed by bs.

law..Section 1772.of. the Welfare and Institutions Code provides.

that in the case of a person honorably discharged from coptrol by

the Youth Authority, the court which.committed him may. set

aside the verdict of guilty and dismiss the accusation or informa-

tion and he “shall- thereafter be released from. all penalties and

_ disabilities resulting from the offense or crime for which he was

committed.” During the. pendency, of the deportation proceeding

‘the court entered an ordér pursuant to § 1772, setting aside’ the .

respondent’s plea of‘ guilty and dismissing the information. The

special inquiry: officer. terminated the deportation proceeding on

the ground that as a consequence of the proceedings under’§ 1772

. the respondent no longer stood convicted of the crime upon which .

the deportation proceeding was based. The Immigration and

Naturalization Service contended : before thé Board of. Immigra-

tion Appeals that a § 1772 “expurigenient of the conviction”. is

- equivalent to a pardon and, accordingly, that the: respondent re-.

oy el

nated in the respondent’s casé on the basis of the

possibility that at some future date he might have

his narcotic conviction set aside. The situation _

is. different when a record of conviction has al-

ready been expunged in California because, in:

such a case, there is no conviction whatever to

support an order of deportation. wecuacae by

- the. Board.)

| Referring to Kae eek eiitioition that the state —

- Court conviction lacked finality because the ‘imposi-

_tion of-sentence had been suspended, the Board said:

. * * “The opinion of the Cotrt of Appeals for.

the Ninth Circuit shows that'it was fully aware

of the. judgment of the state Court’ inasmuch. as

there’is a recital of the fact that the state Court

had ordered that the proceedings be suspended

and that probation be granted upon the condition |

that the respondent serve one year. .It was this

exact question’ which was considered by the

United States Court of Appeals and it concluded

» the meaning of 8 U.S.C. 1251(a)(11). * * *

| On July 14, 1959, the Commissioner of Immigration

port Naturalization requested the Board to refer the

_ Case to the Attorney General for review. The Com-

" missioner, stating that “administrative renconsidera- |

a 7 Supcatable since ‘the 1956 amendment to - § 241 (a) (11)

(see Footnote 2, supra) removed a pardon as the basis for relief

from deportation thereunder. The Board rejected this contention, *

stating, that the question, was not: one of a pardon but rather of

conviction and that the respondent had’ not been convicted within

the meaning of_§ 241(a) (11).

_* Matter of D-—, supra, was not referred té the Attorney Gen-

: eral for review of the: er s decisiony ‘

ra"

49°

| ion” had been sought so that the Board might have

“fan opportunity to consider an apparent conflict in °

its decisions, arid to clarify the Attorney General’s

position with respect to: the issue involved,” asserted

that the factual distinction relied upon by the Board

to support is holding in Matter of D—, supra, had

no legal significance. The Commissioner argued that

" '& eofrect interpretation of § 241 (a) (11), reflected: in

the opinion of the Court of Appeals, was that “a con- -

viction has occurred within the meaning of the immi-

gration laws, notwithstanding subsequent legal process |

_ under the California Statutes whereby this record of

_ Conviction ceasés to exist for some purposes.”’ And he

continyied: — 7 . >

'_ ° It is, therefore, the Service view that ‘Matter

» of D—— erroneously states the law. It. is further |

the Service view that the order entered by the

: Board on Jtine 24, 1959, in no way resolves a con-

flict of law between that case and the instant

‘held not deportable where the conviction has been

expunged, the Board has ‘asserted a legal prin-

ciple contrary to that set forth in the N inth Cir- <

_ cuit in the instant -case. Accordingly, since the.

issue is one which must be resolved in order that

appropriate action may be. taken in connection

with the petition for certiorari to the Supreme

Court (sic), it is requested that the case be cer: .

c tified to the Attorney General. a:

In referring the case to me for review, tle Board

- has adhered to its view that the distinction between

aa :

a = ‘

and is consistent with the opinion of the Court of Ap- -

-peala, The Board also states that acceptance of the

Commissioner's view “would logically require a‘con- |

clusion that the setting aside of a conviction, in ac-

cordance with similar statutory provisions of other

‘States, likewise would ‘be ineffective to prevent depor-

tation,” thus overturning a — adminiv-

- trative practice, ,

The apevial inquiry officer, the Commissioner of Im-

migration and Naturalisation, the Board of Tmmigra-

tion Appeals, the District Court, and the Court of

. .. Appeals are ili agreement that the respondeiit was con-

vieted of a narcotic violation within the meaning of

$241 (a)CAL) of the Immigration and Nationality

Act. I am in accord. I, therefore, affirm the ordor of

the Board dismissing the respondent’s appeal and de-

nying his petition for reconsideration. However, it is

_ my view that for the purpose of § 241 (a)(11) it is

immaterial that pursuant to a state statute like

§ 1203.4 of the California Penal Code or § 1772 of the

Welfate and Institutions Code the vérdict of guilty

~ has been set aside. and the criminal charge dismissed:

I, therefore, disagree: with the Board that in such

cases “‘there is no conviction whatever to support an

order of deportation.” I limit my disagreement to the

precise issue presented—namely, a deportation pro-

ceeding brought under §241 (a)(11), as it may be

- . affected by state laws of the nature of the California

' ; t id j } ° . |

The history of § 241(a) (11) convinces me that Con-

gress did not intend that aliens convicted of narcotic

violations should escape deportation because, as in

_ California, the State affords a procedure. authorizing

8 technical erasure of\the conviction. ‘Traffic in nar.

cotics has been a continuing and serious Federal con-

cern. Congress has progressively strengthened the de-

- portation laws dealing with aliens involved in such

traffic."Thus, as indicated above (footnote 2), in 1940

the deportation statute was amended to eliminate the _

requirement that in addition to a conviction. there

must be a sentence. At the same time the statute was

éxtended to convictions for violation’ of State as well

as Federal statutes. And, since the 1956 amendment

an alien may no longer escape deportability by prof-

fering a pardon. In the face of this clear national pol--

icy, I do not believe that the term “convicted” may

be regarded as flexible enough to permit an alien'to’ _

take advantage of a technical “expungent” which is -

the product of a state procedure wherein the merits

of the conviction and its validity have no place.) I be-

lieve that Congress intended the inquiry to stop at

_ the point at whichi it is ascertained that there has been —

a conviction in the normal sense in which the term is

used in Federal law. See Berman v. United States,

302 US. 211 (A defendant is convicted even though

_ the trial court, after imposing sentence; has placed

the deferidant on probation). Of course, if the eon-

-Viction is still subject to reversal by the usual proe-

esses of appellate scrutiny, the statute is not satisfied.

But beyond this I do not think the inquiry ean extend,

consonant with the Congressional, purpose and policy.

I, therefore, regard it as immaterial for the purposes °.

: ia

of §241 (a)(11) that the record of conviction has

been cancelled by a state process such as is provided

by. §.12038.4 of the California Penal Code. and -by |

§ 1772 of ite Welfare. and Institutions Code.

- Moreover, to: follow the Board’s view would make

‘the deportability of the alien depend upon the vagaries

of state law. It has been said that only in California

and a few other States is provision made-for the can-—

cellation ofa record of conviction or for the with-

drawal of a plea of guilty, upon.the termination of

probation. Probation and Related Measures (U.N. °

Publication No, 1951, IV, 2) 106. And § 1203.4 of the

Califérnia Penal Code (and presumably § 1772 of the

California Welfare and Institutions Code) has been —

| characterized: as: “without parallel in the legislation

of any other state” in providing for a release of the

probationer from all penalties and disabilities result-

ing from conviction. 2 Stan. Law Rev. 221, 222 (1949).

It is hardly to be supposed that Congress intended, in

providing for the deportation of aliens convicted of —

narcotic violations, to extend preferential treatment

to those convicted in the few. jurisdictions, which, like

California; provide for, the expungement of a record

of conviction upon the termination of probation.

ted

FOR THE NINTH CIRCUIT

o <7

’

IMMIGRATION AND NATURALIZATION SERvicr, :

7 Respondent. J

[June 29, 1965]

James Eowarp Ku.wy, Cae

Petitioner,

™ " bNo. 19,340

7 Petition to Review an Order of Deportation of the

i Immigration and Naturalization Service

Before: BARNES atid ELY, Circuit Judges; and PENCE, = =

BARNES, Circuit Judge: 1 cena ae

This is a petition to review an order of deportation affirmed

by the Board of Immigration Appeals. _We have jurisdiction

pursuant to § 1105(a) of Title 8, United States Code.

. The sole issue here involved is whether petitioner’ has “at any

time . . . been convicted” within the contemplation of 8 U.S.C.

§ 1251 (a) (11);1 after conviction and sentence by the courts of

the State of California for violating § 11531 of the Health and

4" ‘Title 8 U.S.C. §1251(a) (11) (Section 241(A)(11)) of the Immigta-”

Bae tion and Nationality Act reads in pertinent part:

“y

2 James Rdward K

Safety Code (possession or sale of marihuana), when a so-called

CenpehGAaee”, ofA conviction an takes, place vinider-} 19004

of the Califgrnia .Penal..Code.? .

Wik: Seed SDDAE dacalen, be, Uhis: cnn, pensiing: the determine

tion by another panel of this court of the appeal in Maria Garcia- -

Gonzales v. Immigration and Naturalization Service, No. 18375,

_ decided April 28, 1965. Decision therein was delayed pending the

Supreme Court decision. (as to jurisdiction) in Giove v. Rosenberg

(decided Qctober 26, 1964), 379 U.S. 18. The Garcia-Gonzales

case is*substantially similar .to this case on its facts, except that -

. it involved a conviction under §§ 11500 and 11501 of the Cali-

fornia Health and Safety Code (the possession or sale of heroin).

For the reasons and the many cases cited. in Garcia-Goneales,

supra, we hold that it was the intention of the Congress not to

recognize state “expungements” of thé) conviction of aliens for

comers ie ge ad cal aa eae theme

deportation.

It is the opinion of the Attorney General of the United States

that the intention of Congress was to use the words “ ‘has been

convictéed’in the normal sense in which the term is used in

Federal law.” Matter of A— F——_—_., 8 I. & N. Dee.

429, 445-446. To permit each state to make its own definition of

what. the Congress intended to mean by the language “at any

: time thas been convicted” would “make the deportability of the

gilt al aera: af wk gil; ori

*. after « plea of not guilty, the court

--hhave'the "same effect as if probation had not been granted or the

ti ‘or inf. ti di nist a.” . : °

-—

Immigration and Naturalization Service 8 §

alien depend on the vagaries of state law.” (Idem.) The panel of

this court sitting in Garcia-Gonzales,' supra, agreed with the

Attorney General, as.do we, .

On the basis of the fore

is.denied® —~

“*

ELY, Circuit Judge, dissenting: iss ell

wt Es 2 + See . :

In reaching its harsh conclusion, the majority relies upon .

Maria Garcia-Gonzales v..Immigration and Naturalization Service,

———- F.2d... (9th Cir, 1965), recently heard and decided by

“another panel of our court. That panel’s decision rests primarily

upon an opinion of the Attorney General, Matter of A-——

F——_—.,, 8 I. & N. Dee. 429, I do not agree with that opinion;

Gonzales and in the case at bar.

consequently, I disagree with our court’s Aecisions in Garcia

These are cases involving a problem of first impression, and the

results work cruel consequences, not only to the two aliens di-

rectly concerned, but also to others who“may become involved .

in @ single violation of the law and be deprived of further

incentive and opportunity to struggle for self-improvement, re-

-habilitation, and worthily contributive citizenship.

Many decisions are cited by our court in Garcia-Gonzales; how-

ever, as @it court recognized, “None of these cases decides the

precise question here presented.” It was said that, the “principles”

of some of the cited cases required the ultimate conclusion. I do

not believe that these so-called “principles” are sufficiently per- -

suasive to override an established principle of the Supreme Court

of the United States which is opposed and which we are obliged

Mr. Justice Douglas, speaking for all of his Brothers as our

court was reversed.in another deportation case, said: _

“We resolve the doubts in favor of that construction because -

deportation is a drastic measure and at times the equivalent

SCounsel. for petitioner has “p ”’a second point, made for the

‘record only, reliance upon which is precluded in this court by our pre-

vious rulings in» Arrellano-Flores v. Rosenberg, 310 F.2d 118 (1962) and

Gutierrez v. I. & N. Service, 323 F.2a 593 (1963), . ro

going authority, the petition to review

os,

ty .

@-.

ee Fomor Mdword Kelly,

‘+ of banishment or extle; Delgadillo ¥. Carmichael, 889 U8.

388, It isthe forfeiture for misconduct of a residence in this -

country, Such a forfeltute is a penalty. To construe this —.

' . ptatutory provision less generously to-the allen might. find

support: in logic, But sines the stakes are considerable. for

the {ndividual, we will not assume that Congress meant to

-tretich on his frvedom beyond that which is required by the

narrowest of several: possible ineanings of the words used,”

Fong Hew Ton v. Phelan, 333 U.S. 6, at 10, 68 5.Ct. 974,

BE LARd, 483 (1048).! pani

- Relterating ‘thie principle, Chief Justice Warren. has written,

“Although not penal in character, deportation statutes as a

: matter may inflict ‘the equivalent ‘of banishment oF

Goneeles, MT U.S. 687, 642, 74 S.Ct. 829, 98 L.Nd, 1009

(1954), Mg | cap Eile

; I es

While our: court expressed. ‘awareness of this principle in

Gareie-Goneeles, saying: “We are aware, too, that matters of

doubt should be resolved in favor of the alien in deportation pro-

ceedings, because of the severity of the remedy invoked.”, I sin- ,.

corely believe that we gave no more than lip service to the

_, doctrine, As emphasized, no-decision bound ‘us to the result which

Un Fong Hew Yen, the court was concerned with the interpretation of -

Seetion 19(a) of the Immigration Act of 1017, as amended, which pro-

vided, in sobstance, thaf an alien “sentenced more than once” to im-

prisomment for a term of one year or more because of conviction in this

comntry of a crime involving moral tarpitude committed after his entry

Should, sabject to certain exceptions,-be deported. The Supreme Court

2 the

held that an alien convicted of the murder of two victims under two —

| dmigration and Naturalisatlon Sorviee 5

was reached there and heré, In Garcla-Gonsales, the alien lady,

who, aecording to the opinion, “has been « self-respecting, self.

‘supporting member of the communities in which she has lived.” .

has, resided in our country for over forty yoats, In 61, she

pleaded guilty. to a, California charge of unlawfully possessing

nareotios, The Californin court granted probation upon eortain

conditions, and following’ ‘the’ expitation of her probationar

period, she appeared before the California court and wae granted .

““expungement” under the provisions of Section 12084, California

Penal Code. Now; our sourt has said that while it. will respect

California law, insofar as Oslitornia law provided for the crime

and the “conviction”, it may not accord to Lalifornia the same -

- respect in the application of its statute or of ite decisions in the

interpretation of the effect of a subsequent. procedure taken under

a California statute of the same dignity as that which created

the crime. Not only does the logic of this approach escape me,

but it is alng true, 1 believe, that such 4 pronouncement is ;

“to a principle which was hitherto thought to have been quite

woll established; In Holzapfel v; Wyrsch, 259-¥ 2d (3rd Cir.

1958), the court said, at page 891: :

“In deportation cases. where a state crime i involved, We ..

_ > have to look to the law and procedure of the state to inter-

“In Sawkow. v. Immigration ond Naturalieation Service; 314 ¥ 24

34, 37 (8rd Cir: 1963), the court extended total respect to post

conviction procedures and determinations applied by the New

been convicted in a New Jersey court. In diseussing a contentién

of the Immigration. and Naturalization Service, the court said,

“It urges, however, that if a judgment of conviction is .

vacated for the purpose of avoiding deportation, a subsequent

recommendation is ineffectual. This argument misses the —

mark, for no contention is made that the state court either

exceeded its jurisdiction or abused its diseretion in vaeating

7 the plea of non vult together with the judgment of convie.

| ‘tion, and subsequently dismissing the indictment. Thus, the

action of the state court is concededly valid. That being so,

the original judgment is'as much a nullity as if the grand |

jury had never returned an indictment.”

e@: °° 8 | Jamas Rab Kelly :

As we have seen, Mrs, Garcia-Gonsales, now at middle. age,

is to be deported and estranged from an environment in which she

has lived and worked and been “a self-respecting, ee

member” for over forty years,

Here, however, we are immediately concerned with James Ed-

ward Kelly, now twenty-eight years of age. Twelve .years ago,

when he was only sixteen, he was, with hif@widowed mother,

—admitted-to-our_country_for_permanent-residence._Hq_has ‘served

in the armed forces of the United States. Oh M 2, 1963,

he pleaded guilty in a California court to a Califoria charge

pertaining to marihuang. The California court suspended the —

proceedings without entry of judgment and, presumably, upon

the basis of ‘Kelly's history and promise, granted probation for

a period of three. years upon condition that Kelly be. confined

in a county jail for six months less the goon in which he had

to set aside the age of Guilty, to enter a plea of Not Guilty,

| and to dismiss the complaint herein, having come on regu- .

larly before this Court on October 8, 1963, in Department

12 thereof, Honorable Judge Harry Neubarth presiding, and

the Court, having heard and considered the evidence.

TT IS HEREBY ORDERED that the séntence of probation.

of defendant be, and the same is hereby, terminated, that the —

plea of Guilty heretofore entered by defendant to the charge

of violation of Section 11531 of the Health and Safety Code

ef California is set aside and & plea of Not Guilty thereto

-is entered and the complaint dismissed, pursuant to Sections

1208.3 and 1208.4 of the Penal Code of California.”

‘Kelly wes charged in 0 California court by California authorities

with having violated a California law. The same California court _

' ‘which, in the beginning, accepted a plea of Guilty subsequently

entered an order making it unmistakably clear that the previous |

plea of Guilty was “set aside and a plea of Not Guilty * * *

entered and the complaint dismissed, *.* * *”. If we are to

resolve “matters of doubt * * * in favor of the alien” as we

said that we should do in Garcia-Gonzales, then I would hold, in

Se s

—

: Immigration and Naturalisation Bervice ke 4

effect, as did. the Cireuit’ in Sawkow,,that “the original

+ Judgment is as much a nullity as if ‘the grand jury had never

returned an indictment.” But “no” said our court in Garcia- .

Gonsales and- ‘say the majority here, there are “principles” of

California law which are oppositely. guiding. Let us-examine some

. Of these “principles”, for California authorities tell us that we

have misunderstood or misapplied: them. In the first place, it is

doubtful, although our court has repeatedly held-to the contrary, —

that a defendant who has pleaded Guilty in a California court

which*has granted him probation and suspended the proceedings -

~ without <entry. of judgment, such es.did Kelly in the instant

case, has even been “convicted.” In People v. Banks, 1969, 53

C.2d 870, 348 P.2d 102, the Supreme. Court. of California wrote,

at page 386, - seat, Peay ae

“By contrast, the defendant whose guilt has been established

_ probation has been granted and the ‘proceedings have been

‘ suspended without entry of judgment, is subject to no dis

abilities whatsoever except those specifically declared by some

other provision of law or ‘affirmatively. prescribed by the

court as terms or ‘conditions of -probation. The proba-

tioner in the latter case still retains hig ordinary civil

“More recently, the California Supreme Court said;

- sentence the probationer retains his ordinary civil rights.”

In re Trummer (1964), 60 C.2d. 658, 388 P.2d 177.”

Criticizing eur*court for its refusal to respect Californis’s -

so-called “dual definition of conviction”, a California jurist has

“In sustaining the deportation order, the Ninth Cireuit Court

relies principally upon Banks (supra, 53 Cal.2d 370), for

the proposition that a.plea, finding or verdict of guilty with-.

out judgment is a ‘conviction’ under California law. The

court fails to recognize, however, that Banks holds that this

“type of conviction has no, effect on civil rights and privileges.

clearly a civil right, == * viele ik tas

‘

}

‘|

60.

0 re

8... Same$ Edward Kellys. =.

| 2

+» See In re Ringnalda (1943) 48 Fed. Supp. 975, where Judge.

bohemian reached the opposite conclusion.” Holland, “Con-

-vietion” Dgfined, 40, Journal of the State Bar of —

36, at 47. ;

‘I reluctantly recognize the binding force of the critized prece-

dents of our court and thus have this day concurred in our

opinion in Gonzalo Ramirez-Villa v. Immigration. and Naturaliza-

tion’ Service, ......F.2d....:.. (9th Cir. 1965). Here, however, we

not only have a case wherein proceedings were suspended and

_no-entry of judgment was made, we have a, case in which the

California court, under the authority of California statutes, - has,

by formal order, set aside a plea of Guilty, accepted a plea “of

Not Guilty, and dismissed the complaint. “

In passing, I point out that when our court, in Gorcia-Gioneeles,

expressed “doubt that the California legislature * * * could, re-.,

‘lease petitioner from penalties or disabilities imposed by federal

law,” is ignored the fact that California was not enforced,by the

Federal Government to enact legislation creating a specific crime.

Moreover, it apparently overlooked certain language of our owri

court in 'Hernandez-Valénsuela v. Rosenberg, 304 F.2d 639, 640

(9th Cir. 1962), wherein Judge Merrill wrote “* * * there was

‘no adjudieation, which would be- recognized as final in Massa- |

chusetts, that pene had’ committed any crime.” (Emphasis

added.)

‘te I am correct in my view that since the petitioner was

® charged with a California crime and since the proceedings- in

- eonnection with the charge were had in a California court, we

should look to the California law to ascertain the effect of the

subsequent dismissal of the charge by the California court,, then

.certain: California cases are of particular significance. One of

these is Truchon’v. Toomey, 116 Cal.App.2d 736, 254 P.2d 638,

36 A.L.R. 2d 1230. There, the accused. was charged ‘with a felony

i and, was placed on probation with no judgment of conviction

having been entered, the same procedure which was applied with

reference to the petitioner here. The “conviction” was expunged,

_ as here, and the question was whether. or not there had been a

‘loss of voting eligibility under the California , Constitution which

provides that “* * * no person convicted of any infamous crime

. a ae er

" Immigration and. Naturolication Service “39

State * * * *”. The court held that release under the expunge-

ment statute effected restoration of.the right to vote, ‘and this

decision of the intermediate California appellate court was

expressly approved by the Supreme Court of California in

Stephens v. Toomey, 51 C.2d 864, 338 P.2d 182.

In Kelly v. Municipal’ Court, 160 Cal.App'2d 38, 324 P.2d 990,

there was. an alleged violation of Section 288(a), California Pénal

Code, which defined a morals offense. Under Section 290,. Cali-

fornia: Penal Code, conviction under the’ particular charge re-

quired registration and reregistration as a morals offender. The

defendant was sentenced to the county jail but execution of the

sentence was suspended and probation granted. Upon fulfillment

.’ Of the period of probation, the, verdict was set- aside, and pur-

, Suant to the expungement statute, the defendant was granted

release from all penalties and disabilities. The court upheld the

former deferiilant’s contention that’ since his so-called conviction —

had been expunged, he was not required to comply. with the

registration requirements.

In People v. Taylor, 178 Cal.App.2d 472, 3 Cal.Rptr. 186

(1960), the defendant was found to have possession of a pistol

and was charged with violating Section 12021 of California’s

Penal Code which prohibits possession of concealed firearms’ by

one “who has been convicted of a felony under the laws of the

"State of California * * * *”. Theretofore, defendant, following

a charge of attempted robbery, had been granted probation with

the proceedings suspended and no sentence imposed. Following

the expiration of the probationary period, the defendant had

applied for, and obtained, relief ‘under the expungement statute.

The court held that the defendant was not subject to the second L

charge, the record of the prior violation having been “wiped —

clean” by ‘the obtaining of the dismissal under the expungement .

statute and the consequent release from all “pénalties and disa- -

bilities.” The court said, - aE ay oe

“The clear intent of the probation sections of the Penal

Code and especially of section 1203.4 is to effect the com-

., Plete rehabilitation of those convicted of crime. The record’

‘’ of one released under. this section is wiped clean, subject

‘only to reinstatement when, and only when, the person

62 |

ae. James Edward Kelly vs.

commits another and subsequent crime, or for purposes of

those exceptional situations discussed supra.”

P t és . ‘

By the statute’s express terms, its benefits are denied to one

_ “who commits another and subsequent crime”, and the “excep-

tional situétions” mentioned -by the court are seen in most of

the cases cited by our court in Garcia-Gonzales, especially in its-

footnote “3”. Except for those situations involving a second

offense, covered by the express terms of the _statute,the—cases

involve sanctions imposed by professional licensing statutes under

which regulating authorities have traditionally been accorded

broad discretion in granting or withholding privileges to engage

in pursuits believed to demand special qualifications and in the

discipline of those who have been so engaged. In its footnote “2”,?

the court, in People v. Taylor, supra, pointed to these exceptional ~

exceptions to the application of the expungement statute and its

benefits.* '

his conviction under Section 12021.” a aap 3S,

8In 1961, following the decision in People v. Taylor, supra, the ex-

pungement statute was amended so as to expressly provide that dismissal

of an accusation or information under its terms should not be deemed to

permit the ownership or possession of a firearm or to prevent cénviction’

under Section 12021, California Penal Code. :

—~

ate

(- {

~~ = : =

Immigration and Naturalization Service . ee

' Following the foregoing authorities, I would hold that if those:

who obtain the benefits of the expungement statute are thereby

released from the disabilities of ineligibility to vote, the carrying

of concealed firearms, and registration as one “convicted” of a

morals offense, then one whose record of “conviction” is “wiped

clean” should be released from the far more drastic disability of

being subject to deportation -and “banishment and —_ staaey

his family and the land in which he lives. : :

I am of the conviction that, at the very least, the California

statute, with its interpretation by ‘the California courts, estab-

lishes a “doubt” which, said our court in Garcia-Gonzales, in its

metition. of the direction of Fong Haw Tén, “should: be resolved

in favor of, the alien in deportation — because of the

severity of the remedy invoked.”

Finally, we look at the opinion bf the Phish General upon

which our court, in Garcia-Gonzales, and the majority. here have

so greatly relied, Matter of A F , supra. .The

_ Attorney General. has upheld the determination of the Immi- -

gration and Naturalization Service that: expungement, under

California law, of a. record of any crime except one pertaining

to narcotics saves the alien from deportation. The Attorney

General, however, in disagreeing with the Board of Immigration

Appeals, reasoned that narcotics offenders should be treated

differently. Attempting to support this proposition, it “was

_ pointed out that in 1956, Congress amended Section 1251, Title

8, U.S.C., so as to provide that a narcotics offender should not

be saved. from deportation, as had formerly been the case, by”

the fact that he had been granted a pardon or by the. fact that _

at the ‘time of lis conviction or within thirty days. thereafter,

' the convicting court had recommended that he not be deported.

' I cannot agree with this particular reasoning of the Attorney -

General, and, significantly, it was. not adopted in the majority

opinion here or in the opinion in .Garcia-Gonzales.. It. appears

that the Congress intended that an alien should not benefit from

- a character of executive or judicial forgiveness which might be,

and possibly had been, granted hastily and improvidently. The

amendments, construed reasonably in favor of the alien, do not

reach so far as to prohibit sutcessful -recourse to a state pro-

cedure dependent upon the successful meeting of .probationary

requirements with resulting clear evidence of rehabilitation and.

12 is James Edward Kelly vs.

court review, not only of ie history: which was thought. to '

justify probation in the beginning, but also of. the .subsequent

conduct upon which would rest the order dismissing the original

charge and releasing the alien from disabilities. The Attorney

General says, ‘“Moreover,.to follow the Board’s 's views would make

the deportability of the alien depend upon the vagaries of state

. law.” The majority gives controlling weight to this consideration,

and in Garcia-Gonzales, our court somewhat deprecatingly re-

ferred to “all of the niceties and nuances of state laws.” In-

herent in our system are “vagaries” and “niceties and nuances”

of state laws. One might find himself running afoul of the

anti-gambling laws of many states and yet, for the same act,

to have committed no crime in the state of Nevada. When the

Attorney General writes that “only in California and a few

other states is provision made * * * for the withdrawal of a plea.

of Guilty, upon the termination of probation.”, it cannot follow

_ that this Pioneering of California and “a few other states” in

the penal field ‘is necessarily evil. Had the expungement statute,

since its enactment nearly twenty-four years ago, not: have proved

to be an effective deterrent to recidivism, it is reasonable to

-assume that California would have repealed .it. I cannot see

that respecting the “vagary” of the California .expungement

statute as interpreted by the California courts is more grevious

than the recognition of the “vagaries” and the “niceties and

nuances” of different applications of the same law with respect

to different. crimes and according to different“ opinions of the

Board of Immigration Appeals and the Attorney General of the

United States. If the Board and the Attorney General are to

say, as they.do, that an alien may be convicted in California

of the most heinous crime and yet escape deportation by ex- . .

pungement of the record of that crime under the California.

law, then one who has been charged with possessing a marihuana

cigarette should be spared from exile by consistent application .

‘of the same benevolent statute. Differing interpretations and

applications of the California statute constitute, in'sum, a trap.

for those unlearned in the “niceties and nuances” of the law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.