Garcia-Gonzales v. Immigration & Nat. Service

• Citation: 344 F.2d 804
• Decision Date: 28 April 1965
• Docket Number: No. 18375.,18375.
• Parties: Maria GARCIA-GONZALES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

344 F.2d 804 (1965)

Maria GARCIA-GONZALES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 18375.

United States Court of Appeals Ninth Circuit.

April 28, 1965.

Joseph S. Hertogs, San Francisco, Cal., for petitioner.

Cecil F. Poole, U. S. Atty., Charles Elmer Collett, James Hewitt, Asst. U. S. Attys., San Francisco, Cal., for respondent.

Before MADDEN, Judge, Court of Claims, and JERTBERG and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Petitioner was born in Mexico in 1914. When she was not quite ten years old, she entered the United States as an immigrant and she has resided in this country ever since, her period of residence now being over forty years. She has never been naturalized, and remains a Mexican national. So far as appears, she has been a self-respecting, self-supporting member of the communities in which she has lived. However, in 1961 she pled guilty to two counts of a six-count information that had been filed against her in the Superior Court of the State of California, County of San Benito, charging violations of sections 11500 and 11501 of the California Health and Safety Code. The two counts to which she pled guilty charged her with the unlawful possession of heroin. Her plea of guilty was accepted and she was given three years probation, two of the terms of which were that she was to serve six months in the county jail and pay a fine of $1,000. This judgment was entered against her on November 14, 1961.

Under date of December 4, 1961 she was served with an order to show cause and notice of hearing in deportation proceedings. This notice alleged her conviction and that by reason of it she was subject to deportation pursuant to section 241(a) (11) of the Immigration and Nationality Act (the Act) (8 U.S.C. § 1251 (a) (11)).¹ A hearing was held on December 19, 1961 at which proof of the conviction was received in evidence and she admitted the conviction. On the same day the Special Inquiry Officer decided that she was subject to deportation and ordered that she be deported to Mexico. On February 9, 1962, she appealed to the Board of Immigration Appeals. Her appeal was dismissed on February 25, 1962. The Board found that the order was fully supported by the evidence and that petitioner was not eligible for any form of discretionary relief.

On November 5, 1962 petitioner again appeared before the Superior Court of California, San Benito County. Her probation was terminated and she withdrew her plea of guilty and pled not guilty to the charge. This was done pursuant to section 1203.4 of the California Penal Code.² The record does not affirmatively show that upon withdrawal of the plea of guilty and substitution of the plea of not guilty the court actually dismissed the information against her. However, the language of the statute is mandatory, and we presume therefore that the court did so. On November 8, 1962 petitioner moved to reopen or reconsider the deportation order of December 19, 1961 and the decision of the Board of Immigration Appeals of February 26, 1962 on the ground that her conviction had been wiped out or expunged under the provisions of the California Penal Code. On December 4, 1962 the Board of Immigration Appeals denied the motion and dismissed the appeal. This proceeding was filed on January 19, 1963.

At the time that the matter was argued before us, it appeared that under our decisions an order refusing to reopen or reconsider a final order of deportation was not subject to review in a proceeding such as this, which was filed pursuant to section 106 of the Act (8 U.S.C. § 1105a, as amended in 1961). Our decisions were based on the ground that this section authorized review by us of final orders of deportation only, and that a refusal to reopen or reconsider is not such an order. See Giova v. Rosenberg, 9 Cir., 1962, 308 F.2d 347. The Supreme Court had granted certiorari in the Giova case and we therefore deferred submission of this case pending its decision. On October 26, 1964 the Court decided the Giova case (379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90), reversing our decision and remanding the case to us with directions to entertain the petition for review. Under that decision we have jurisdiction in the present case. We therefore proceed to the merits.

The sole question presented is whether the setting aside of the plea of guilty, entry of a plea of not guilty, and dismissal of the information, pursuant to California law, has so far "wiped out" or "expunged" the conviction upon which the deportation order rests that that order must be reconsidered. We answer this question in the negative.

While the precise question has not heretofore been decided by us, our prior decisions point to and, indeed, require the result that we now reach. In Arrellano-Flores v. Hoy, 9 Cir., 1958, 262 F.2d 667 the alien was convicted in a California court of unlawfully selling marihuana. The proceedings in the state court were suspended and probation was granted upon condition that the alien serve one year in the county jail. We held that this was nevertheless a conviction within the meaning of section 241 (a) (11). We there pointed out that California has held that such a disposition is a conviction. (In re Morehead, 107 Cal.App.2d 346, 237 P.2d 335; People v. Christman, 41 Cal.App.2d 158, 106 P. 2d 32.) We also indicated a belief that in enacting the statute, "Congress intended to do its own defining of `conviction' rather than leave the matter to variable state statutes."

In Adams v. United States, 9 Cir., 1962, 299 F.2d 327, a citizen had been found guilty of unlawful possession of marihuana and committed to the California Youth Authority for the term prescribed by law. We held that this was a conviction, within the meaning of a statute requiring a person convicted of a violation of any narcotic law to register before departing from or entering into the United States. (18 U.S.C. § 1407). In that case, citing Arrellano-Flores, supra, we said: "We do not think that 18 U.S.C. § 1407 incorporates all of the niceties and nuances of state laws on the subject of conviction." We also held that evidence offered to show that the alien's conviction had been "wiped out" pursuant to the provisions of section 1772 of the California Welfare and Institutions Code was properly excluded. That section, which is quoted in our opinion in Adams, is quite similar to section 1203.4 of the California Penal Code. In so holding, we cited and quoted from our decision in Wood v. Hoy, 9 Cir., 1959, 266 F.2d 825.

Wood v. Hoy was another case in which there was a suspended sentence. We held that the alien had nevertheless been convicted within the meaning of section 241 (a) (4) of the Act, which deals with convictions of offenses involving moral turpitude other than narcotic offenses. The alien there relied upon section 1203.4 of the California Penal Code, and we said "because California courts retain some control over the final disposition of a probationer's criminal record, it does not follow that such control precludes a finding that the probationer was `convicted' by that court." We also pointed out that under decisions of the California courts relating to section 1203.4 of the California Penal Code, that section does not in fact wipe out a conviction for all purposes.³

In Hernandez-Valensuela v. Rosenberg, 9 Cir., 1962, 304 F.2d 639, it was claimed that a comparable provision of the Federal Youth Correction Act (18 U.S.C. § 5021(a)), under which the conviction of a youth offender is automatically set aside upon his unconditional discharge before the expiration of the maximum sentence imposed, did not have the effect of rendering his conviction not final. However, it did not appear that the alien involved in that case had in fact been discharged. In discussing the problem, we said: "It is true that the sentence imposed carries with it the possibility of congressional grace upon unconditional discharge, but such possibility of future grace in no respect affects the present fact of guilt" (p. 640). We also pointed out that section 241(b) of the Immigration and Nationality Act (8 U.S.C. § 1251 (b)) evidences a congressional intent that such a statutory provision for forgiveness is not to affect the offender's deportability.

We made similar rulings in other cases. Zabanazad v. Rosenberg, 9 Cir., 1962, 306 F.2d 861, like this case, involved subsection (a), subdivision (11) of section 241. The alien was a state offender who had been committed to the California Youth Authority, and we cited and followed Adams, supra. In Gutierrez v. Immigration and Naturalization Service, 9 Cir., 1963, 323 F.2d 593, the alien was convicted in a California court of unlawful possession of marihuana. The proceeding was then suspended and he was placed on probation. We held, citing Arrellano-Flores, supra, that the defendant had been convicted within the meaning of the statute. The opinion relies in part upon Adams, Hernandez-Valensuela, and Zabanazad, supra.

We recognize that none of these cases decides the precise question here presented, because in none of them had the alien completed his probation and received the benefit of the provisions of section 1203.4 of the California Penal Code or of a comparable statute. Perhaps the Adams case is most closely in point. But we think that the principles that they apply require the conclusion that the California statute does not "wipe out" the conviction or "expunge" it for the purposes of section 241(a) (11) of the Immigration and Nationality Act.

Militating against petitioner's contentions are the following considerations:

1. Section 1203.4 rewards a convict who has fulfilled the terms of his probation, first, by changing the record of his conviction to show a plea of not guilty and a dismissal, and second, by releasing him "from all penalties and disabilities resulting from the offense or crime of which he has been convicted." We would take these to be...