# Petition for Writ of Certiorari — Garcia-Gonzales v. Immigration & Naturalization Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0778%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 382 U.S. 840 ## Text 4 An ESI ee ae . Office-Supreme Court, U.S. ] wink, FILED | *E COURT. 3M | WO 23 1s - SOHN F. DAMS, CLERK In the Supreme Court pees OF THE : United States — —_—_—— Be ’s i _ 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 ‘ bs ‘ + - * E a 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 ; ; -_ As — Spat "PETITION FOR A WRIT OF CERTIORARI | ‘to the United States Court of | eee © ncbigip Resejened for the Ninth Circuit’ BO _ 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. : 6 Ss \ : 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, . Be 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 - ad (R..- 48) . sustaining the order of, re is ret. ported at 344 Fad B04: . , 4 4. .§ See - : e ee i ° - © : - ‘ oO SYS hase _ STATUTES INVOLVED le Cy the 3 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 = \ 8 ) Making of applioatiog: ‘Pleading of conviction im - 4 ; £. 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; - - aa : -! 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 “ 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 2° ee gS! 80st Jo 3 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, Bb 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. 16 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 . 18 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 . 19 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. 20 ‘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.) 21 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 ay 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. e ‘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 4 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, e 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 SS 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 © Was a decision by thé Central oflee of the Service in 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 ay 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 — © a NE ee ye eer ene penny pee ad 30 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. — 31 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 34 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~~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- e 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 42 -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: © contentions are set forth fully in‘our order of June — - 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 _— %. rt f 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- > 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 ct E vietion of narcotic offense. ‘See Gotdon and Rosenfield, Imai ee ee ; . \' : ¥ SO ; ; ° . . ‘ ‘ * 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 '_ ° 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 Case, since in asserting that an alien is properly © ‘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- have to look to the law and procedure of the state to inter- Pret what happened in the state courts * © © @”: | “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 _ Jersey courts which pertained to a crime for which: the alien had © 2 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.” 58 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