Wilson v. I.N.S.

• Decision Date: 01 February 1995
• Docket Number: No. 94-40492,94-40492
• Citation: 43 F.3d 211
• Parties: Morris Winston WILSON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 211

43 F.3d 211

Morris Winston WILSON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-40492

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 1, 1995.

Ollie Jefferson Ansley, Ft. Worth, TX, for appellant.

Janet Reno, Atty. Gen., U.S. Dept. of Justice, Ellen Sue Shapiro, Philemina Jones, Stewart Deutsch, Richard M. Evans, Attys., Robert L. Bombough, Director, I.N.S., Washington, DC, for appellee.

John B.Z. Caplinger, Joseph A. Aguilar, I.N.S. Deputy Directors, New Orleans, LA, Ronald Chandler, Deputy Director, I.N.S., Dallas, TX, for other interested parties.

Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:

Petitioner Morris Winston Wilson seeks review of an order of deportation issued by the Immigration Judge and affirmed by the Board of Immigration Appeals. The deportation order was issued because of Wilson's conviction for possession of marijuana in Dallas County, Texas. Wilson challenges the order, contending that the Board's standard for conviction is contrary to congressional intent and to Supreme Court precedent, and alternatively arguing that his conviction was not final for purposes of deportation. Finding no merit in his contentions, we affirm the decision of the Board.

I. FACTUAL AND PROCEDURAL BACKGROUND

Wilson is a thirty-seven year old native and citizen of Saint Christopher who was admitted into the United States as a nonimmigrant visitor on or about March 3, 1985. On May 19, 1988, his status was adjusted to lawful permanent resident based on his marriage to a United States citizen.

On July 15, 1988, Wilson pleaded guilty to and was convicted of possession of marijuana in a Texas state court in Dallas County. The self-titled "Judgment" stated that "[i]t is therefore found and adjudged by the court, that the said Defendant is guilty of the felony offense" of marijuana possession. Wilson received a sentence of four years confinement and a $500 fine, but the sentence was suspended and Wilson was placed on probation for a period of four years. On July 17, 1992, after Wilson had satisfactorily fulfilled his conditions of probation, the court entered an order setting aside the judgment of conviction, dismissing the indictment, discharging Wilson from probation, and releasing him from all penalties and disabilities resulting from the judgment of conviction.

The Immigration and Naturalization Service ("INS") issued an Order to Show Cause on May 31, 1992, charging Wilson with deportability under section 241(a)(2)(B)(i) ¹ of the Immigration and Nationality Act ("INA"). At his hearing, Wilson admitted the allegations against him but denied deportability, arguing that his conviction did not qualify as a conviction for immigration purposes. The Immigration Judge followed the Board of Immigration Appeals' ("BIA") decision in Matter of Ozkok, A-12150228, 1988 WL 235459 (BIA 1988), and concluded that Wilson's conviction was sufficient for immigration and deportability purposes. On appeal to the BIA, Wilson argued that the Ozkok conviction test was invalid, and alternatively, Wilson alleged that his probationary sentence did not meet the Ozkok conviction test. He also challenged the finality of his conviction for immigration purposes. The BIA reaffirmed the Ozkok test and rejected Wilson's other arguments. Wilson appeals from the BIA's decision, asserting essentially the same arguments presented to the BIA.

II. STANDARD OF REVIEW

In reviewing challenges to the BIA's interpretation of a statutory term, we apply a two-pronged standard of review. First, we consider "the legal standard under which the INS should make the particular deportability decision." Animashaun v. INS, 990 F.2d 234, 237 (5th Cir.1993). If the governing statute does not clearly speak to the question before the court, we have "upheld agency interpretations of ambiguous law when that interpretation is reasonable." Id. (citing Chevron, U.S.A., Inc. v. National Resources Defense Counsel, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). As the Supreme Court has noted, "[w]e have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer...." Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.

After determining the controlling legal standard, "we will next examine the Board's findings under the substantial evidence test to determine whether the legal standard has been satisfied." Animashaun, 990 F.2d at 237. The substantial evidence standard "requires only that the Board's conclusion be based upon the evidence presented and that it be substantially reasonable." Id.

III. ANALYSIS AND DISCUSSION

A. The Validity of the Ozkok Conviction Standard

Wilson contends that the conviction test announced in the BIA's Ozkok decision is inapplicable because it is inconsistent with congressional intent and with the Supreme Court's decision in Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955). We disagree with both of these contentions, but we begin by examining the background and the history of the Ozkok decision.

1. The foundations of Ozkok

In Matter of Ozkok, after "an extensive review of the relevant case law, legislative history, and INS precedent, the BIA deviated abruptly from long-standing INS and BIA precedent." Martinez-Montoya v. INS, 904 F.2d 1018, 1021 (5th Cir.1990). Under the narcotics violation provision of the INA, the BIA adopted a uniform federal standard for defining "conviction," rather than retaining a state-by-state standard. Specifically, the BIA stated that "we shall consider a person convicted if the court has adjudicated him guilty or has entered a formal judgment of guilt." Ozkok, 1988 WL 235459, at * 4. "Where adjudication of guilt has been withheld," however, the Board in Ozkok stated that a conviction will be found for immigration purposes when the following elements are present:

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;

(2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions ...); and

(3) a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding the person's guilt or innocence of the original charge.

Id.

Wilson correctly points out that the Ozkok standard represents a departure from the BIA's previous position, which required "the action of the court [to be] considered a conviction by the state for at least some purpose." Id. at * 6-7 n. 4; Martinez-Montoya, 904 F.2d at 1021. In articulating this new standard, the BIA noted that the previous analytical framework was "too narrow and undesirably subject to the vagaries of state law." Martinez-Montoya, 904 F.2d at 1021; Ozkok, 1988 WL 235459, at * 3. According to the BIA, "Congress did not intend for a narcotics violator to escape deportation as a result of a technical erasure of his conviction by a state." Ozkok, 1988 WL 235459, at * 3 (citing Matter of A--F--, 8 I & N Dec. 429, 445-46 (BIA 1959)). The Attorney General noted "the federal policy to treat narcotics offenses seriously," and the Attorney General determined that "it would be inappropriate for an alien's deportability for criminal activity to be dependent upon 'the vagaries of state law.' " Ozkok, 1988 WL 235459, at * 3 (quoting Matter of A--F--, 8 I & N Dec. 429, 445-46 (BIA 1959)); see also Yanez-Popp v. INS, 998 F.2d 231, 235 (4th Cir.1993) ("In Ozkok, the Board considered Supreme Court and federal precedent in concluding that Congress intended federal immigration laws to be uniform and that previous interpretations of state 'convictions' under varying state laws for immigration purposes produced 'anomalous and unfair results.' ") (quoting Ozkok, 1988 WL 235459, at * 3). Thus, in light of the congressional resolve to combat our nation's drug problem and to unify the conviction standard, the BIA in Ozkok adopted a federal definition of "conviction."

2. Consistency with Congressional Intent

Wilson contends that the Firearms Owners' Protection Act ²--an amendment to a federal firearms statute--indicates that the federal conviction standard in Ozkok is inconsistent with congressional intent. Wilson apparently believes that the enactment of this amendment indicates that Congress intended for the term "conviction" to hinge on whether the state considers the person convicted for some purpose. In other words, according to Wilson, the Amendment reveals that Congress intended for the pre-Ozkok conviction standard to govern immigration law because that standard required the action of the court to be considered a conviction by the state for at least some purpose.

We believe that Wilson's interpretation of the firearms amendment is much too broad. On this point, we wholly agree with the Fourth Circuit's analysis and discussion:

In Dickerson [v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845], [ (1983) ] the Supreme Court held that for purposes of federal gun control laws, the definition of "conviction" was a question of federal law since there was an absence of Congress' intent to the contrary. Congress subsequently overruled Dickerson [in 18 U.S.C. Sec. 921] by requiring that a conviction be defined in accordance with the laws in which the criminal proceedings are held. However, the case still stands for the general proposition that federal law governs the application of Congressional statutes in the absence of a plain language to the contrary. By overruling the holding in Dickerson, Congress merely...