From Casetext: Smarter Legal Research

Mestre Morera v. U.S. Immi. Nat. Serv

United States Court of Appeals, First Circuit
May 19, 1972
462 F.2d 1030 (1st Cir. 1972)

Summary

holding that set-aside conviction cannot be used to deport because "the clear purpose for the automatic setting aside of a youthful offender's conviction . . . is to relieve him not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction"

Summary of this case from Texas Dept. of Public Safety v. Loeb

Opinion

No. 72-1006.

Submitted May 15, 1972.

Decided May 19, 1972.

Wilfredo A. Geigel, Santurce, P. R., on brief for petitioner.

John L. Murphy, Chief, Administrative Regulations Section, Crim. Div., and Donald B. Nicholson, Atty., Dept. of Justice, on brief for respondent.

Petition for review from the Immigration and Naturalization Service.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.


Petitioner, Octavio Mestre Morera, is a native-born Cuban. In 1969, at the age of 19, he was sentenced to the custody of the Attorney General, pursuant to 18 U.S.C. § 5010(b), as a youth offender, having been convicted of conspiring to possess marihuana known to be unlawfully imported. 21 U.S.C. § 176a. The provision under which he was ordered deported is section 241(a) (11) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(a) (11). He opposed the INS order on the ground that the conviction was not final, it being possible that it would ultimately be expunged pursuant to 18 U.S.C. § 5021(a). In this he was unsuccessful, and he now seeks review.

§ 5021. Certificate setting aside conviction


Prior to the matter reaching this court, petitioner did in fact receive a certificate of expunction. Respondent is willing, indeed urges us, to consider the case in this light rather than to remand, since only a question of law is involved. We accede.

It is true that in Hernandez-Valensuela v. Rosenberg, 9 Cir., 1962, 304 F.2d 639, one of a series of cases in the Ninth Circuit, the court held an alien sentenced under the Youth Corrections Act deportable immediately even though there was a possibility of his ultimately receiving a section 5021(a) certificate. The court gave short shrift to the effect of such a certificate. We do not agree.

The clear purpose for the automatic setting aside of a youthful offender's conviction if he responds satisfactorily to treatment under the Youth Correction Act is to relieve him not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction. See U.S. Code Congressional Service, 81st Cong., 2d Sess., pp. 3391-3392 (1950). We cannot imagine a more complete deprivation of a second chance than deportation. We are unable to presume that Congress, without any reference to such an intent, meant in section 5021 to provide for setting aside a conviction for some purposes but not for others.

The Service itself recognized the cogency of this reasoning in Matter of Nagy, 1968, 12 I. N. Dec. 623, in which it held that an alien whose conviction for a "crime involving moral turpitude" had been expunged under section 5021 could not be deported under section 241(a)(4). The Service now seeks to distinguish the instant case on the theory that it involves a deportation under section 241(a) (11) for a narcotics conviction, arguing that, as evidenced by section 241(b), Congress has enunciated a strong national policy of deportation of aliens involved in the narcotics traffic which should not be required to defer to a technical erasure of a conviction. Regardless of how compelling this argument may be when the expunction is of a state conviction under an unusual state procedure, see Garcia-Gonzales v. INS, 9 Cir., 1965, 344 F.2d 804, cert. denied 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed. 2d 81; Matter of A---- F----, 1959, 8 I. N. Dec. 429, 441-46; but see Kelly v. INS, 9 Cir., 1965, 349 F.2d 473, 474-480 (Ely J., dissenting), cert. denied, 382 U.S. 932, 86 S.Ct. 326, 15 L.Ed.2d 344, we are unpersuaded when it is the Youth Correction Act that is involved. Section 5021 clearly contemplates more than a "technical erasure;" it expresses a Congressional concern, which we cannot say to be any less strong than its concern with narcotics, that juvenile offenders be afforded an opportunity to atone for their youthful indiscretions. That section 241(b) provides that neither an executive pardon nor a judicial recommendation of leniency can prevent deportation for a narcotics conviction does not evince a clear intention that a section 5021 certificate should also be ineffective as to such deportations. Pardon and leniency at most restore to an offender his civil rights; neither is as clearly directed as the Youth Correction Act toward giving him a second chance, free of all taint of a conviction. Tatum v. United States, 1962, 114 U.S.App.D.C. 49, 51, 310 F.2d 854, 856. See also Matter of Nagy, supra. Indeed, the presence of section 241(b) suggests to us that if Congress had intended a section 5021 certificate to be inoperative with respect to section 241(a) (11), it would expressly have said so.

Subsection (b) provides that a crime as to which there has been a full Presidential pardon, or as to which the sentencing judge shall recommend against deportation, shall have no operative effect. However, narcotic offenses are expressly excluded from this provision.

See also 26 U.S.C. § 7237(d), which provides, in effect, that certain provisions of the Youth Correction Act, not including sections 5010(b) or 5021, shall not be available to those convicted of narcotics violations.

The order is set aside.


Summaries of

Mestre Morera v. U.S. Immi. Nat. Serv

United States Court of Appeals, First Circuit
May 19, 1972
462 F.2d 1030 (1st Cir. 1972)

holding that set-aside conviction cannot be used to deport because "the clear purpose for the automatic setting aside of a youthful offender's conviction . . . is to relieve him not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction"

Summary of this case from Texas Dept. of Public Safety v. Loeb

In Mestre Morera, the First Circuit held that an offender whose conviction had been set aside pursuant to § 5021 of the Youth Corrections Act could not be deported on the basis of that conviction.

Summary of this case from U.S. v. Hovsepian

In Mestre Morera v. INS, 462 F.2d 1030 (1st Cir. 1972) we followed the rule of strict construction and held that if Congress had intended federal YCA expunction to be inoperative from barring deportation it would have expressly said so. I believe a similarly strict construction is mandated here.

Summary of this case from Kolios v. Immigration Naturalization Service

In Mestre Morera, supra, we held that the Congressional policy of deportation for narcotics offenders conflicted with another Congressional policy of rehabilitation for young offenders whose convictions were erased under the Federal Youth Corrections Act. Finding no express preclusion of such erasure as a defense to deportation, we held that Congress must have intended the FYCA expungement provisions to be fully effective even after the 1956 amendment of § 1251(b) which closed the doors of pardon and judicial recommendation against deportation to drug offenders.

Summary of this case from Kolios v. Immigration Naturalization Service

countervailing "second chance" policy of Youth Corrections Act controlling

Summary of this case from Giambanco v. Immigration Nat. Service

In Mestre Morera v. Immigration and Naturalization Service, 462 F.2d 1030 (1st Cir. 1972), such action was held to have removed the statutory mandate for deportation in 8 U.S.C. § 1251.

Summary of this case from Chlomos v. U.S. Dept. of Justice, I. N. S

adding that "[w]ithout expunction," the sentencing judge's decision to set aside the defendant's conviction, "would be rendered essentially meaningless."

Summary of this case from U.S. v. Doe

In Mestre Morera v. United States Immigration Naturalization Service (1st Cir. 1972), 462 F.2d 1030, the court held that an alien could not be deported on the basis of a narcotics conviction that had been set aside under section 5021.

Summary of this case from People v. Wunnenberg

In Mestre Morera v. United States Immigration Nat. Serv., (1st Cir. 1972) 462 F.2d 1030, it is stated that the purpose of that federal statute is to relieve the youthful offender not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction.

Summary of this case from Stephens v. Van Arsdale

In Mestre Morera v. United States Immigration Nat. Serv., (1st Cir. 1972) 462 F.2d 1030, it is stated that the purpose of that federal statute is to relieve the youthful offender not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction.

Summary of this case from State v. Miller
Case details for

Mestre Morera v. U.S. Immi. Nat. Serv

Case Details

Full title:OCTAVIO MESTRE MORERA, PETITIONER, v. UNITED STATES IMMIGRATION AND…

Court:United States Court of Appeals, First Circuit

Date published: May 19, 1972

Citations

462 F.2d 1030 (1st Cir. 1972)

Citing Cases

Kolios v. Immigration Naturalization Service

He questions why he should be deported when someone convicted of a crime of moral turpitude could avoid…

Giambanco v. Immigration Nat. Service

Further, under federal circuit review of this Service policy, the discretionary use exception has also failed…