SIRHAN

13 I. & N. Dec. 592

• Court: Board of Immigration Appeals
• Decided: July 1, 1970
• Docket: 2052
• Status: Published

Opinion

Interim Decision X2052

MATTER OF SIRHAN, ET AL.

In Deportation Proceedings

A-10711879 A-13598200 A-13578469

Decided by Board June 19, 1970

(1) In deportation proceedings a collateral attack may be made on a crimi- nal court judgment on the question of jurisdiction. (2) Where an alien was charged with deportability under section 241(a) (4) of the Immigration and Nationality Act on the basis of a criminal convic- tion in California in 1966 for which he was sentenced for one year, with sentence suspended; thereafter the court by order modified the sentence to less than a year; and subsequently the conviction was expunged in 1969, the deportation proceedings are terminated on the basis of the expunge- ment (which eliminates the conviction as a deportation ground) rather than as improvidently begun, since to a prospective employer or other per- son the latter may lend itself to the erroneous inference that proceedings were terminated as a matter of administrative discretion, rather than be- cause the alien is not deportable. (3) Since authority lies with the superior court of California, through the writ of coram nobis, to enter an order vacating an alien's prior conviction in that court of violation of California marijuana laws and certifying the case to the juvenile court, which accepted the alien as a ward, deportation proceedings against the alien under section 241 (a) (11) of the Act are ter- minated since the conviction which formed the basis of deportability no longer exists, having been vacated. 17H ARGES Order: Act of 1952—Se'ction 241(a) (11) [8 U.S.C. 1251(a) (11) ]—Con- victed of violation of marijuana law. [SIRHAN, RODRIGUEZ-RODRIGUEZ] Order:Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Convicted of crime committed within five years after entry and sentenced to a year or more. [TALAVERA-ARREDONDO]

Af42 Interim Decision #2052

ON BEHALF OF RESPONDENTS:' ON BEHALF OF SERVICE: SIRHAN: R. A. Vielhaber David C. Marcus, Esquire Appellate Trial Attorney 215 West Fifth Street (Filed brief in each case Los Angeles, California 90013 and was heard in oral argu- (Brief filed in lieu of ao- ment in SIRHAN) pearance at oral argument) Also, in SIRHAN, and RODRIGUEZ-RODRIGUEZ : RODRIGUEZ-RODRIGUEZ : Luis H. Garcia, Esquire William S. Howell 304 S. Broadway, Rm. 217 Trial Attorney Los Angeles, California 90013 (Filed brief in each case) TALAVERA-ARREDONDO: Also, in TALAVERA-ARREDONDO: Agnes P. Matica, Representative Sam I. Feldman International Institute of Trial Attorney Los Angeles (Filed brief) 435 S. Boyle Avenue Los Angeles, California 90033

These cases were tried separately before different special in- quiry officers. Because the same issue is raised in each, we shall consider them jointly. We shall approve the special inquiry officer's termination of proceedings in each case. These deportation cases are based on convictions which were subsequently changed or vacated by the courts in which the con- victions occurred. The Service contends that the courts had no ju- risdiction to enter the subsequent orders. If the subsequent orders are void, the original convictions can serve as the basis for deportation orders except in Talavera's case where the conviction has been expunged. If the subsequent orders of the courts are to be given effect, the original convictions can- not serve as the basis for the deportation of Sirhan and Rodri- guez. In Sirhan and Rodriguez, we consider these questions : May we determine whether the courts had jurisdiction to enter the subse- quent orders? If so, did the courts have the jurisdiction to enter them? If they had jurisdiction, are the aliens, nevertheless, de- portable on the basis of the original convictions? In Talavera, we consider these questions: Should the case be terminated, as requested by the District Director, on the ground that he improvidently started the case; or, as found by the special inquiry officer and is asked by counsel, on the ground that the subsequent order of the court eliminated the original order for deportation purposes? Should we terminate on the ground that the expungement eliminated the conviction for deportation pur- poses?

593 Interim Decision #2052

The individual cases will be briefly set forth. The special in- quiry officer's orders state the facts fully. Sirhan and Rodriguez were each separately convicted for viola- tion of marijuana laws in a California superior court. Each was charged in deportation proceedings with being deportable by rea- son of his conviction. In each case, the court then vacated the conviction and certified the case to the juvenile court which ac- cepted the alien as a ward. A person treated as a juvenile is not considered a person convicted of crime. The special inquiry officers held that the convictions on which the orders to show cause were issued no longer existed. They therefore terminated proceedings. Talavera was convicted in a California superior court in April 1966 for issuing a check without sufficient funds. In May, he was sentenced to imprisonment for one year. The sentence was sus- pended. Deportation proceedings were instituted. In October, the court modified the sentence to make the term of imprisonment less than a year. The conviction was expunged in May 1969. The special inquiry officer terminated proceedings on the ground that the modified order removed respondent from the class of deporta- ble aliens since he was no longer an alien sentenced to a year or more. The Service believes that the effect of the modified order is a moot question because the expungement has removed the con- viction as the basis for deportation; but it asks that the deporta- tion proceedings be terminated on the ground that they were im- providently begun. The State of California was represented at the sessions of court when the changes in 'the court orders were made. The change in Sirhan was made by a judge other than the one who entered the original order. The changes in the other cases were made by the same judges who entered the original orders. In Sir- han, a motion to vacate was made by counsel. In Rodriguez, the court vacated the conviction on its own motion. In Talavera, the modification was apparently made as a result of a motion or rec- ommendation by Talavera's probation officer or the oral motion of counsel. HAS THE BOARD THE POWER TO ENTERTAIN A COLLATERAL ATTACK ON THE JUDGEMENT OF A CRIMINAL COURT?

In determining whether an alien is deportable, the immigration authorities cannot go behind a judicial record to determine the guilt or innocence of the alien, U.S. ex rel. Mylius v. Uhl, 210 F. 860 (2 Cir., 1914). However, guilt or innocence is not involved

594 Interim Decision *2052

here. The question is the jurisdiction of the courts to change their orders. This is a proper and necessary issue for consideration in these proceedings, U.S. ex rel. Freislinger v. Smith, 41 F.2d 707 (7 Cir., 1930); Joseph v. Esperdy, 267 F. Supp. 492 (S.D.N.Y., 1966) ; Doss v. State of North Carolina., 252 F. Supp. 298 (M.D., 1966); Vasquez v. Vasquez, 240 P.2d 319 (Ct. App. Cal., 1952); Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA, 1963) ; Matter of H-9 I. & N. Dec. 460 (BIA, 1961); Matter of C—, 6 I. & N. Dec. 366 (BIA, 1954). See !RMatter of J—, 6 I. & N. Dec. 562 (AG, 1956). But see Taran v. United States, 266 F.2d 561 (8 Cir., 1959). The party attacking the judgment must establish the lack of jurisdiction by convincing evidence, Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871 (6 Cir., 1943), cert. de- Died 320 U.S. 800; Choctaw & Chickasaw Nations v. City of Atoka, Okl., 207 F.2d 763 (10 Cir., 1953) ; Delanoy v. Delenoy, 13 P.2d 719 (Cal., 1932). In Sirhan and Rodriguez, we shall consider the issue raised by the Service concerning the courts' power to change their orders. We shall not make the inquiry in Talavera because the expunge- ment there moots the issue as to the validity of the court's modifi- cation. It is settled law that expungement of a non-drug convic- tion eliminates it as a ground for deportation. Use of the expungement is preferable to terminating the case as improvi- dently begun—an action, which, to a prospective employer or other person, may imply that deportation proceedings were termi- nated because the District Director exercised a discretionary power rather than because Talavera is not deportable. Since no hardship to Talavera is shown because we rely on the expunge- ment rather than on the modified order, we see no need to explore the ramifications of the court's action in his case. See Matter of Vizcarra-Delgadillo, Interim Decision No. 1917 (BIA, 1968).

POWER OF THE COURT IN CALIFORNIA TO MODIFY A CRIMINAL JUDGMENT

California criminal courts have statutory and inherent powers to modify orders. We will first consider the statutory power. Sec- tion 1203.3 of the Penal Code is cited by the special inquiry officers as authority for the courts' modifications. The provisions of this section follow: §1203.3. [Revocation, modification or termination of probation by court: Notice to probation officer: Discharge of defendant.] The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. It may at any time when the ends of justice will be subserved thereby, and when

595 Interim Decision #2052

the good conduct and reform of the person so held on probation shall war- rant it, terminate the period of probation and discharge the person so held, but no such order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order, and in all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any ex- tension thereof, be by the court discharged subject to the provisions of these sections. We find that section 1203.3 continues the jurisdiction of the court over the convicted person only so far as conditions of pro- bation and matter relating to probation are concerned. The sec- tion does not authorize vacating a conviction. These are our rea- sons: The section is found among provisions relating to probation. The heading of the section relates to changes of proba- tion. All cases cited on the section concern judgments which in- volve matters relating to probation. The case of In re Scarbor- )ugh, 173 P.2d 825 (Ct. App. Cal., 1946), held that under section [203.3, a valid condition of probation must be present to justify a :hange of judgment. It would seem, therefore, that when proba- ionary matters are not present, the section cannot be relied upon s authority for the change of a judgment. Finally, the changes f judgment expressly authorized by the section—changes involv- ng imposition of execution of sentence—would hardly authorize acating a conviction. Since section 1203.3 relates to changes involving matters of robation, we must determine whether the change in Sirhan or 'odriguez involved a matter of probation. In both cases there - ere conditions of probation relating to service of time and obe- ence to the law. In addition, in Sirhan there were conditions [ncerning use of narcotics, associations, employment and resi- glee. It is clear that in neither case did the court order vacating e conviction relate to a matter of probation. We conclude that e court could not have found authority for its action in section :03.3. We now consider the court's inherent powers to modify an der. There are two kinds, one short-lived, the other continuing. le short-lived one expires when the original order is entered in e minutes or when legal restraint has. been imposed upon the fendant, People v. Thomas, 342 P.2d 889, 893 (Cal., 1959). Sir- n was convicted in October 1966 and sentenced in December 66. The court orders were entered in the minutes in the same [nths they were issued. The court vacated the conviction and •ified the case to the juvenile court in May 1967. Rodriguez

596 Interim Decision #2052 was convicted and sentenced on June 22, 1967. The order was en- tered in the minutes in the same month. The court vacated the conviction and certified the case to the juvenile court in February 1968. Since the modifying orders in both cases came after the original judgments were entered in the minutes, it would follow that the courts could not look to the short-lived power as authority for the modifications. 1 The continuing inherent power to modify an order is exercised through the writ of coram nobis. The writ lies to vacate or cor- rect a judgment where no other remedy exists. It is granted when a petitioner shows that, through no fault of his, a fact was not presented at the trial, that presentation of the fact would have prevented the rendition of the judgment, that the fact does not go to the merits of the issues tried, and that he could not, in the ex- ercise of due diligence, have discovered the fact at any time sub- stantially earlier than the time of his motion for the writ, People v. Shipman, 397 P.2d 933, 42 Cal. Rptr. 1 (1965). The petition for the writ need not take any particular form. See People v. Hamlin, 152 Cal. App. 2d 112, 312 P.2d 306 (Ct. App. 1957). It may be made orally, People v. Curtis, 104 Cal. App. 2d 219, 230, P. 2d 877 (1951); People v. Sandoval, 254 P. 893 (Cal., 1927). Contra, In Re Dyer, 85 Cal. App. 2d 394, 402, 193 P. 2d 69, 74 (1948). We believe that it will be more fruitful to discuss the issues in terms of a specific court case rather than in terms of general rules. One Armendariz was convicted in May 1964 for a narcotic violation. The trial judge wanted to commit him to a rehabilita- tion program, but erroneously concluded that he could not ask the district attorney to declare the case an unusual one—a declara- tion which might have made Armendariz eligible for rehabilita- tion. The court sentenced Armendariz to imprisonment. He was apparently committed. In March 1966, he filed a petition for a writ of coram nobis in the trial court. The court denied the writ, apparently in part, because it was mistaken on the same legal point. On appeal, the trial court was reversed and given another In several unreported decisions, we had raised a question as to whether the limitation on modifications under the short-lived power might apply only to modifications that increased punishment. We now conclude that the limita- tion applies even if the modification decreases punishment. Thus, where after the entry of an order in the minutes, a court issued a corrected judg- ment beneficial to defendant in that it changed a term of imprisonment from a consecutive to a concurrent one, the corrected judgment was set aside be- cause the issuance after the entry of the original sentence in the minutes was without authority, In re Wimbs, 921 P.2d 70, 55 Cal. Rptr. 222 (1966).

597 Interim Decision #2052 opportunity to consider the advisability of starting a proceeding to commit Armendariz to the rehabilitation program, People v. Armendariz, 60 Cal. Rptr. 796 (Ct. App., 1967). See also In re Rascon, 413 P.2d 678, 50 Cal. Rptr. 790 (1966). While Armendariz is not on all fours with the cases before us, we see certain similarities. In Armendariz, the court acted with- out knowledge that it could have entered an order which would have saved Armendariz from imprisonment—a punishment the court did not want to inflict. The appellate court held that the trial court had the power to correct this omission. In the instant cases, the courses acted without knowledge that they could have entered an order which would have saved the respondents from deportation—a disability stemming from the punishment inflicted and not intended by the courts. It appears to us that the power to correct this omission existed. See Joseph v. Esperdy, supra. The existence of a case such as Armendariz and the Service failure to present precedents which affirmatively establish that the courts here were without authority require us to conclude that the Serv- ice failed to carry its burden in the collateral attack on the modi- fying orders in Sirhan and Rodriguez. One further comment is required before we leave this subject. In Talavera, the Service presented a letter dated December 2, 1966 from the judge who modified his original order. He stated that he would not have imposed the original sentence had he known it might have resulted in an order of deportation, that -flaking respondent subject to deportation was a penalty greater ;Ilan was intended, that the modification was an attempt to alle- viate the conditions of the original sentence, and that he now be- ieves that he had no authority to enter the modification. The ;ervice relies upon this letter as support for its position in the hree cases before us. The letter is entitled to respectful consider- ,tion, but we do not regard it as substantial evidence that the su- ,erior courts in Sirhan and Rodriguez lacked jurisdiction to va- ate their orders. Letters to similar effect were not presented in hese cases which are under the administrative jurisdiction of the ame District Director whosubmitted the letter in Talavera. The otter cites no authority. The court has not vacated the order in uestion. Because our concern is with the convictions which were the asis for the issuance of the orders to show cause, we need not iscuss statutory provisions relating to acquisition of jurisdiction y the juvenile court.

598 Interim Decision #2052 EFFECT OF THE ORIGINAL CONVICTIONS UNDER THE IMMIGRATION LAWS

We come now to the third question in Sirhan and Rodriguez. Did the subsequent orders of the courts remove the aliens' liabil- ity to deportation? The Service contends that because the orders were allegedly made for this very purpose, to give them such an interpretation would circumvent federal laws controlling the de- portation of aliens. A similar contention was vigorously advanced by the Service in Matter of O'Sullivan, supra. It was rejected by the Board. We find no need to add to the discussion there. See Jo- seph v. Esperdy, supra. We do point out that while the inference can be drawn that the courts here were motivated by a desire to remove the aliens from liability to deportation, it is possible that other considerations entered into their deliberations. Pointing to the fact that a conviction (the finding of guilt) ex- ists independently of a sentence (the imposition of punishment), the Service representative contends that the vacating of a sen- tence has no effect on the existence of the conviction and permits the conviction, where it is for a narcotic offense, to support an order of deportation under section 241(a) (11) of the Act. It is sufficient answer to say that' in Sirhan and Rodriguez, where narcotic violations occurred, the courts vacated the convictions; no convictions exist. The appellate trial attorney contends that the courts' actions in vacating the convictions in Sirhan and Rodriguez are unconstitu- tional because the actions subject the aliens to double jeopardy. The contention must be dismissed. An accused in a criminal case who is instrumental in having a conviction vacated may be tried again on the same, or another indictment, for the very offense of which he was convicted without violaing the provision against double jeopardy, People v. Stratton, 28 P.2d 695 (Ct. App., Cal., 1934). This is so even if the accused has served time under his sentence, U.S. ex rel. Jones v. Nash, 264 F.2d 610 (8 Cir., 1959), cert. denied 360 U.S. 936. Moreover, since the proceedings were remanded to the juvenile courts, which are not criminal courts, the doctrine of double jeopardy does not apply, People v. Silver- stein, 262 P.2d 656 (Cal., 1953). Cases dealing with expungements cited by the Service in Sir- han and Rodriguez; e.g., Garcia-Gonzales v. INS, 344 F.2d 804 (9 Cir., 1965), cert. denied 382 U.S. 840, are inapposite. Expunge- ment is a State rehabilitation process which removes most of the disabilities imposed by the State on a convicted person. In Sirhan and Rodriguez, no convictions exist.

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Since neither a pardon nor recommendations against deporta- tion are involved in the instant cases, we shall not discuss the cases concerning these matters which are cited by the Service. Other cases cited by the Service; e.g., Guiterrez v. INS, 323 F.2d 593 (9 Cir., 1963), cert. denied 377 U.S. 910 (dictum) con- tain statements that a federal standard exists as to what consti- tutes a conviction. We agree with this. We have attempted to de- fine such a standard, Matter of 0—, 7 I. & N. Dec. 539 (BIA, 1957). There is, however, no authority holding that a conviction exists where there is no finding by a criminal court that a person is guilty of a crime. On the contrary, when a court acts within its jurisdiction and vacates an original judgment of conviction, its action must be respected, Sakow v. INS, 314 F.2d 34 (3 Cir., 1963) ; United States v. Shapiro, 222 F.2d 836 (7 Cir., 1955), in- terpreted in Matter of S—, 9 I. & N. Dec. 678 (BIA, 1962). See Pino v. Landon, 349 U.S. 901 (1955). ORDERS: (1) No change is made in the special inquiry officers' orders in Sirhan and Rodriguez; (2) No change is made in the special inquiry officer's order in Talavera. The basis for termination of deportation proceedings is the fact that the con- viction on which proceedings were instituted was expunged.