Forstner v. Immigration and Naturalization Service
| Decision Date | 07 July 1978 |
| Docket Number | No. 77-3026,77-3026 |
| Citation | 579 F.2d 506 |
| Parties | Gerhard FORSTNER, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gerald H. Robinson, Portland, Or., for petitioner.
Jean Gentry Lujan, Atty., Dept. of Justice, Washington, D. C., for respondent.
On Petition to Review a Decision of the U. S. Immigration and Naturalization Service.
Before BROWNING and ANDERSON, Circuit Judges, and WATERS *, District Judge.
Petitioner was found deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11), requiring deportation of any alien convicted of drug-related offenses described in the statute.
Petitioner contends that the record made by the government in the deportation proceeding does not establish that the offense of which he was convicted fell within the scope of section 1251(a)(11). The record shows that petitioner pleaded guilty to violating Oregon Revised Statute § 167.207 which makes it unlawful to "furnish" a narcotic or dangerous drug. " 'Furnishes' means to sell, barter, exchange, give or dispose to another, or to offer or agree to do the same . . . ." O.R.S. § 167.202(3). Petitioner contends that because the Oregon statute makes it unlawful to "offer" or "agree" to "barter" drugs, whereas section 1251(a)(11) of the Act applies to "conspiracies" and does not mention bartering, a conviction under the Oregon statute may have been for conduct not within section 1251(a)(11).
Section 1251(a)(11) extends broadly to any violation of or a conspiracy to violate "any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marijuana, or . . . any law or regulation governing or controlling the . . . sale, exchange, dispensing, (or) giving away" of those substances. Nothing in the legislative history suggests Congress intended to limit the broad scope of this language. We agree with the Board of Immigration Appeals that it encompasses the conduct made unlawful by the Oregon statute.
Petitioner argues that he was not "convicted" within the meaning of section 1251(a)(11), but pleaded guilty. A plea of guilty is tantamount to conviction. E. g., Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The conviction was no less final for purposes of section 1251(a)(11) because it may at some future time be expunged under Oregon Revised Statute § 137.225. E. g., Zabanazad v. Rosenberg, 306 F.2d 861 (9th Cir. 1962); Hernandez-Valensuela v. Rosenberg, 304 F.2d 639, 640 (9th Cir. 1962); Adams v. United States, 299 F.2d 327, 331 (9th Cir. 1962).
Nothing indicates that the Service failed to abide by its policy of not instituting deportation proceedings against aliens convicted of possession, importation, or distribution of less than 100 grams of marijuana for no remuneration. See INS Operations Instruction 242.1(a)(28). The Board specifically noted that petitioner may move to reopen these...
To continue reading
Request your trial
-
Transamerica Premier Ins. Co. v. Miller
...cases, in which a technical meaning might be expected, sometimes "[a] plea of guilty is tantamount to conviction." Forstner v. INS, 579 F.2d 506, 507 (9th Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 36 (1979); see United States v. McCroskey, 681 F.2d 1152, 1153 (9th Cir......
-
People v. Cuevas
... ... penal sanctions but also harsh immigration consequences if ... convicted. Because of this, pleas accepted in ... the United States, or denial of naturalization pursuant to ... the laws of the United States ... ' ... ” [ 7 ... I.N.S ... (9th Cir. 1992) 971 F.2d 340, 342, & fn. 2; Forstner ... v. Immigration & Naturalization Service (9th Cir ... ...
-
Luu-Le v. INS.
..."makes punishable as a principal one who aids or abets another in the commission of a substantive offense"); see also Forstner v. INS, 579 F.2d 506, 507 (9th Cir. 1978) (noting that "relating to" language should be given broad scope). We recognize that the phrase "relating to," although bro......
-
Ballbe v. I.N.S.
...to amend its factual allegations to conform to the evidence presented at the deportation hearing. See Forstner v. Immigration & Naturalization Service, 579 F.2d 506, 508 (9th Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 36 (1979); Yam Sang Kwai v. Immigration & Naturaliz......