A-8094244
Decided by Board March 6, 1958
Deportable charges — Section 241 (a) (11), 1952 act — Finality of conviction — Conviction not final when guilty plea set aside and information dismissed under section 1772, California Welfare and Institutions Code.
Conviction does not obtain "finality" essential to support order of deportation under section 241 (a) (11) of the Immigration and Nationality Act where after having imposed sentence on a narcotics charge under section 11500 of the Health and Safety Code of California the court pursuant to section 1772 of the Welfare and Institutions Code enters an order setting aside the respondent's plea of guilty and dismissing the information.
CHARGE:
Order: Act of 1952 — Section 241 (a) (11) [ 8 U.S.C. 1251 (a) (11)] — Convicted of violating law relating to illicit traffic in narcotics.
BEFORE THE BOARD
Discussion: An order entered by the special inquiry officer on October 23, 1957, terminated the above-captioned proceeding. The examining officer appeals on the ground that the evidence of record fully supports the deportation charge. A memorandum in support of the special inquiry officer's order has been submitted by counsel.
The record relates to a native of Scotland, a national of Great Britain, age 19, unmarried, who last entered the United States through the port of New York on September 21, 1951. He was convicted in the County of Los Angeles, California, for unlawfully selling, furnishing and giving away flowering tops and leaves of Indian hemp ( cannabis sativa) in violation of section 11500, Health and Safety Code, State of California. An order on June 20, 1956, by the Superior Court for the County of Los Angeles, California, committed the respondent to the Youth Authority of California for the term prescribed by law. The same court on August 21, 1957, pursuant to section 1772 of the Welfare Institutions Code entered an order setting aside the respondent's plea of guilty and dismissed the information. The court further ordered that the respondent "be released from all penalties and disabilities resulting from the offense of which he was committed."
Section 1772 of the Welfare and Institutions Code, State of California, provides as follows:
"§ 1772. Release from penalties and disabilities resulting from offense: Dismissal of prosecution: Information as to privilege: `Honorably discharged' defined. Every person honorably discharged from control by the authority who has not, during the period of control by the authority, been placed by the authority in a state prison shall thereafter be released from all penalties and disabilities
"`Honorably discharged' as used in this section means and includes every person discharged may petition the court which committed him, and the court may upon such petition set aside the verdict of guilty and dismiss the accusation or information against the petitioner who shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he was committed.
"Every person discharged from control by the authority shall be informed of this privilege in writing at the time of discharge.
"`Honorably discharged' as used in this section means and includes every person whose discharge is based upon a good record on parole."
The special inquiry officer concurs with the respondent's counsel that "In language and legal effect * * * such dismissal (under section 1772, supra) is identical with a dismissal under section 1203.4 of the Penal Code of the State of California" which "* * * has uniformly been held to expunge and remove the conviction as a basis for deportation. Matter of E---- V----, 5 IN Dec. 194. Matter of O---- T----, 4 IN Dec. 265." The special inquiry officer concludes as a matter of law on the basis of the authority aforecited that "the respondent no longer stands as one convicted of the crime upon which the proceedings are predicated, and consequently is not subject to deportation."
Section 1203.4 of the California Penal Code provides as follows:
"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. The probationer shall be informed of this 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 any subesquent 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 Service representative argues that an expungement of the record pursuant to section 1772 of the Welfare and Institutions Code of California ( supra, footnote 1) is the equivalent of a pardon. He maintains that the amendment of section 241 (b) of the Immigration and Nationality Act ( 8 U.S.C. 1251 (b)) by the Act of July 18, 1956 ( 70 Stat. 575) expressly denies relief from deportation by a pardon "in the case of any alien who is charged with being deportable from the United States under subsection (a) (11) of this section" namely, section 241 of the act. A fortiori, he reasons that the expungement under the state law of California is of no avail to the respondent because under a California Supreme Court decision ( infra) the record of conviction remains and only the penalties and disabilities resulting from the offense are removed by the provisions of section 1772 of the Welfare Code ( supra, footnote 1). The Service representative cites in support of his position the case of Meyer v. Board of Medical Examiners, 206 P. (2d) 1085, and certain cases decided by this Board in which we have referred to the function of section 1203.4 of the California Penal Code (supra, footnote 2) as in the nature of a pardon for purposes which are not germane to the issue before us.
Matter of E---- V----, 1610-9315, 5 IN Dec. 194; Matter of H----, T-1496858, 6 IN Dec. 619, Atty. Gen., October 18, 1955.
We held in Matter of E---- V----, supra, that an expungement under section 1203.4 of the California Penal Code would not support an admission of acts which constitute the essential elements of a crime involving moral turpitude because of the administrative view that a pardon forecloses basing a charge upon a subsequent admission of the same offense which constituted the basis for the conviction. In other words, we interpreted an expungement under section 1203.4 of the California Penal Code as the equivalent of a pardon. We held in Matter of H---- ( supra, footnote 3), that the expungement of a conviction record in California does not fully erase a finding of guilt for the particular crime, however, the offense may not then serve as a bar to the establishment of good moral character.
We do not subscribe to the position taken by the Service representative. We are here considering a substantive provision of the 1952 act which requires a narcotic conviction to establish deportability. The Service in Matter of O---- T----, supra, had before it a similar provision of the 1917 act, namely, a conviction of a crime involving moral turpitude. The Service in its opinion of February 13, 1951, fully considered the import of the California Supreme Court's decision in the case of Meyer v. Board of Medical Examiners, supra, insofar as it affected immigration proceedings when there had been an expungement of a conviction under section 1203.4 of the California Penal Code.
The Service in its decision referred to the fact that there is a conflict between Federal cases and those of the California State Courts. It was stated "The effects of the holdings in the Federal cases is that the acts of the persons involved may be considered in connection with the determination of whether good moral character has been established but that the record of conviction may not be relied upon as establishing commission of the acts" (emphasis supplied). The Service held that for immigration purposes the decisions of the Federal Courts should prevail and, accordingly, a conviction which had been expunged under section 1203.4 of the California Penal Code would not support an order of deportation.
In re Ringnalda, 48 F. Supp. 975 (S.D. Cal., 1943); In re Paoli, 49 F. Supp. 128 (N.D. Cal., 1943).
This Board has, as the Service representative argues, inferred that an expungement of a conviction under California law is equivalent to a pardon. However, we find no instance in which we have said that an expungement amounts to the grant of a full and unconditional pardon by the executive authority of the State of California and, therefore, relieves an alien from deportation under the strict terms of section 241 (b) by reason of an executive pardon. The conviction in this instance was expunged by the sentencing court and not by executive authority.
We recognized in Matter of S---- R----, A-4056115, Int. Dec. No. 878, B.I.A., June 20, 1957, that an expungement of a record under the California Code has limited scope. We held that the relief afforded by section 4 of the Act of September 3, 1954 (Public Law 770-83d Congress) which applies to aliens who have committed a single petty offense, is not available in the case of an alien whose conviction of another offense was set aside under section 1203.4 of the California Penal Code. We said that the test in applying the petty offense statute is not whether the alien has been convicted of more than one offense but whether he has in fact committed more than one offense involving moral turpitude. Here there is no question but that the respondent committed a violation of a law regulating traffic in narcotic drugs but the test under section 241 (a) (11), supra, is whether he has been convicted of such a violation. The pardoning provision of section 241 (b) of the 1952 act is not concerned with the legal technicalities of what amounts to a conviction.
We are of the opinion that the Supreme Court's decision in the case of Pino v. Landon, 349 U.S. 901, and the Attorney General's interpretation of that decision require a similar interpretation with respect to section 1772 of the California Welfare and Institutions Code because in the language of the Supreme Court it cannot be said "that (respondent's) conviction has attained such finality as to support an order of deportation within the contemplation of section 241 of the Immigration and Nationality Act." The conviction by the terms of the order entered by the Superior Court on August 21, 1957, has been "set aside" and the information against the respondent "dismissed." We are mindful of the fact that an expungement of the record in California does not completely obliterate the fact that the unlawful acts occurred. The test under section 241, as we have said, is not whether a narcotic violation occurred but rather it is whether there has been a conviction of a narcotic violation. There has, as a matter of law, been no conviction for immigration purposes in the instant case.
Matter of L---- R----, A-8769665, Int. Dec. No. 846, Atty. Gen., February 18, 1957.
Matter of H----, T-1496858, 6 IN Dec. 619, Atty. Gen., October 18, 1955.
Apart from the legal conclusion we have reached with respect to an expungement of the record under section 1772 of the California Welfare and Institutions Code, we note that our interpretation of this section conforms to the purpose of the Youth Authority Act as stated in its preamble. Section 1700 of the Welfare and Institutions Code reads:
§ 1700. Purpose of statute: Construction. The purpose of this chapter is to protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses. To this end it is the intent of the Legislature that the chapter be liberally interpreted in conformity with its declared purpose.
Under the terms of the act after January 1, 1954, a youth in respondent's position, namely, under the age of 21 years at the time of apprehension and who has not been granted probation or sentenced for a serious offense, the California court must commit the youth to the Youth Authority (section 1732, California Welfare and Institutions Code). The Youth Authority is empowered with broad discretionary powers with respect to confinement and the Authority may "permit (an offender) his liberty under supervision and upon such conditions as it believes conducive to law-abiding conduct" (section 1766, California Welfare and Institutions Code). It is extremely doubtful that a commitment under such circumstances amounts to such finality of conviction within the meaning of the immigration laws. However, we do not have to decide this issue since we have concluded that the action taken by the California court pursuant to section 1772 of the Welfare and Institutions Code of California removes the respondent's conviction as a basis for deportation under section 241 (a) (11) of the Immigration and Nationality Act ( 8 U.S.C. 1251 (a) (11)). The order terminating the proceedings will be affirmed.
Order: It is directed that the order entered by the special inquiry officer on October 23, 1957, terminating proceedings under the order to show cause be and the same is hereby affirmed.