James Edward Kelly v. Immigration and Naturalization Service

349 F.2d 473, 1965 U.S. App. LEXIS 5198

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 1965
• Docket: 19340_1
• Status: Published

Opinions

BARNES, Circuit Judge:

This is a petition to review an order of deportation affirmed by the Board of Immigration Appeals. We have jurisdiction pursuant to § 1105a 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 Safety Code (possession or sale of marihuana), when a so-called “expungement” of the conviction has taken place under § 1203.4 of the California Penal Code.²

We have withheld decision in this case pending the determination by another panel of this court of the appeal in Maria Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804, decided April 28, 1965. Decision therein was delayed pending the Supreme Court decision (as to jurisdiction) in Giova v. Rosenberg (decided October 26, 1964) 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed. 90. 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 California Health and Safety Code (the possession or sale of heroin).

For the reasons and the many cases cited in Garcia-Gonzales, supra, we hold that it was the intention of the Congress not to recognize state “expungements” of the conviction of aliens for narcotics violations, so as to permit such violators to escape 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 convicted’ in the normal sense in which the term is used in Federal law.” Matter of A-F-, 8 I. & N. Dec. 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 has been convicted” would “make the deportability of the 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 foregoing authority, the petition to review is denied.³

1 . Title 8 U.S.C. § 1251(a) (11) (Section 241(a) (11)) of the Immigration and Nationality Act reads in pertinent part: “(a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who— (11) is, or hereafter at any time * * * has been convicted of a violation of * * * any law or regulation relating to the illicit possession of or, traffic in narcotic drugs or marijuana, or who has been convicted of a violation of * * * any law or regulation governing or controlling the * * * sale, exchange, dispensing, giving away * * * 0f * * * marijuana H: H< ♦ w

2 . Section 1203.4 of the Penal Code of the State of California reads in pertinent part:

“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 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 convicted 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 defendant, 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.”

3 . Counsel for petitioner has “preserved” a second point, made for the record only, reliance upon which is precluded in this court by our previous rulings in Arrel-lano-Flores v. Rosenberg, 310 F.2d 118 (1962) and Gutierrez v. I. & N. Service, 323 F.2d 593 (1963).