Arrellano-Flores v. Hoy
| Decision Date | 29 December 1958 |
| Docket Number | No. 15747.,15747. |
| Citation | 262 F.2d 667 |
| Parties | Jesus ARRELLANO-FLORES, Appellant, v. Richard C. HOY, as District Director for the Los Angeles District, Immigration and Naturalization Service, United States Department of Justice, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David C. Marcus, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Bruce A. Bevan, Jr., Los Angeles, Cal., for appellee.
Before POPE, CHAMBERS and HAMLEY, Circuit Judges.
Arrellano-Flores is a citizen and national of the Republic of Mexico who was lawfully admitted to the United States in 1925. After administrative proceedings the district director of Immigration and Naturalization is about to deport him under 8 U.S.C.A. § 1251(a) (11) because he has been found guilty after a California trial on a criminal charge that he unlawfully sold marihuana, a substance classified as a narcotic.
On review, the district court upheld the director. The principal issue is: Has the alien been "convicted?" This is an ingredient of the aforementioned Section 1251(a) (11). The judgment of the state court, after the finding of guilt, was that the proceedings be suspended and that probation be granted upon the condition that appellant serve one year in the county jail. Because of this rubbery end (which has the sanction of California state law and the policy of which is not our concern) to the trial, the alien says he has not been "convicted," just found guilty. Under California law such a sentence as was prescribed here does not constitute a final judgment from which an appeal may be taken. In re Marquez, 3 Cal.2d 625, 45 P.2d 342.
Appellant relies heavily on United States ex rel. Freislinger, on Behalf of Kappel v. Smith, 7 Cir., 41 F.2d 707. The Seventh Circuit held that whether a man had been "convicted" in state court was to be determined by the law of the state where the offense was committed and proceedings had. It was of the opinion that under Illinois law Freislinger had not been convicted because a final judgment of conviction had not been entered.
While one cannot close one's eyes to the state's statutes and what transpired in the state's proceedings, we are inclined to the belief that perhaps here Congress intended to do its own defining rather than leave the matter to the variable state statutes. Credence for this view can be found in the fact the present statute reads "convicted" while its predecessor, 46 Stat. 1171 (Chap. 224), read "convicted and sentenced." It would appear that federal courts have generally taken the view that a plea of guilty or a finding of guilty, which is in repose and...
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United States v. Bonanno
...irrelevant. Garcia-Gonzales, supra, 344 F.2d at 807, quoting Adams v. United States, 299 F.2d 327 (9th Cir. 1962); Arrellano-Flores v. Hoy, 262 F.2d 667 (9th Cir. 1958). See also United States v. Potts, 558 F.2d 883, 887 (9th Cir. 1975) (Sneed, J. concurring).10 In light of the above decisi......
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Wilson v. Blabon
...84 L.Ed. 744 (1940); cf.: Gutierrez v. Immigration and Naturalization Service, 323 F.2d 593, 596 (9th Cir. 1963); Arrellano-Flores v. Hoy, 262 F.2d 667, 668 (9th Cir. 1958). And the State statute plainly requires that, regardless of the type of criminal offense of which the person stands co......
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United States v. Castellana
...is an area in which Congress intended to do its own defining rather than leave the matter to variable state law. Arrellano-Flores v. Hoy, 262 F.2d 667, 668 (9th Cir. 1958). Finally, defendant's equitable-exemption argument is ill-founded for still another reason. He asserts, in effect, that......
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U.S. v. Potts
...on 18 U.S.C.App. §§ 1201--3. Nothing in our previous decisions is contrary to this conclusion. For example, in Arellano-Flores v. Hoy, 262 F.2d 667 (9th Cir. 1958) in construing the term 'convicted' in 8 U.S.C. § 1251(a)(11) as applied to a California suspended sentence, we said: . . . we a......