In re Chairez-Castaneda
| Decision Date | 28 April 1995 |
| Docket Number | Interim Decision No. 3248.,File A41 311 303. |
| Citation | 21 I&N Dec. 44 |
| Parties | In re Patricio CHAIREZ-Castaneda, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated March 14, 1990, the Immigration Judge found the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1988),1 as an alien convicted of a controlled substance violation, and ordered him deported from the United States. The respondent has appealed from that decision. The appeal will be dismissed. The request for oral argument is denied.
The respondent is a native and citizen of Mexico who entered the United States in April 1989 as a lawful permanent resident. The record reflects that on October 2, 1989, in the District Court, Moffat County, Colorado, the respondent entered into a stipulation for deferred judgment and sentence, pursuant to which he pled guilty to unlawful possession of a controlled substance, to wit: cocaine. The respondent was placed on probation for 2 years of the 4-year period during which his sentence was deferred. He was also ordered to pay a victim's compensation fee and court costs, to submit to drug testing and counseling, and to serve 60 days in jail.
At his deportation hearing the respondent argued that the standard for a conviction set forth in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), was improper for a variety of reasons and should not be applied in his case. The Immigration Judge stated that he was bound by the precedent decisions of the Board of Immigration Appeals and determined that the three-pronged Ozkok test for a conviction had been met. The respondent further contended that he did not have a final conviction for immigration purposes because under Colo-rado law a defendant who has been granted deferred judgment and sentencing retains the right to a direct appeal during the deferral period. The Immigration Judge rejected this argument, finding that the appeal to which the defendant was entitled was only for the purpose of reviewing the revocation of probation, not the question of the defendant's guilt, as required by Ozkok. Therefore the Immigration Judge concluded that the respondent's conviction was final and that he was deportable.
The issues presented in this appeal are: (1) will the Board recede from Matter of Ozkok, supra, and (2) under the third prong of Ozkok, are further proceedings regarding guilt or innocence available under Colorado's deferred judgment and sentence provisions, Colorado Revised Statutes § 16-7-403. For the reasons explained below, we conclude that Ozkok was correctly decided and that further proceedings regarding guilt or innocence are not available under Colorado law. We will therefore dismiss the appeal.
In Matter of Ozkok, supra, we revised the standard for determining whether a final conviction exists for immigration purposes, addressing two different procedural contexts in which a conviction can be found. First, we held that a person is considered convicted whenever a court has adjudicated him guilty or has entered a formal judgment of guilt. The second part of our analysis, which involves a three-pronged test, is applied only when there has been no judgment or adjudication of guilt by the court. Id. at 551-52; see also Wilson v. INS, 43 F.3d 211 (5th Cir. 1995). Thus, if adjudication of guilt has been deferred or withheld, we then proceed to determine whether: (1) there has been a finding or plea to establish guilt, (2) the court has imposed some form of punishment, penalty, or restraint of liberty, and (3) further proceedings are available to contest guilt or innocence of the original charge before judgment can be entered following a violation of the terms of the court's order.
Matter of Ozkok has received the approval of the judiciary in each circuit where it has been considered. See Wilson v. INS, supra; White v. INS, 17 F.3d 475 (1st Cir. 1994); Yanez-Popp v. United States INS, 998 F.2d 231 (4th Cir. 1993); Molina v. INS, 981 F.2d 14 (1st Cir. 1992); Chong v. INS, 890 F.2d 284 (11th Cir. 1989). Furthermore, the courts of appeals have generally agreed that a federal standard for conviction is appropriate in immigration proceedings. See Paredes-Urrestarazu v. United States INS, 36 F.3d 801 (9th Cir. 1994); Yazdchi v. INS, 878 F.2d 166 (5th Cir.), cert. denied, 493 U.S. 978 (1989); Kolios v. INS, 532 F.2d 786 (1st Cir.), cert. denied, 429 U.S. 884 (1976); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th Cir. 1971); cf. Rehman v. INS, 544 F.2d 71 (2d Cir. 1976) (). See generally Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983) ().2 Inasmuch as the federal standard enunciated in Matter of Ozkok has been upheld as a valid interpretation of the immigration laws and we continue to find it appropriate, we decline to reconsider our decision in that case.
The respondent claims that he does not have a final conviction pursuant to Matter of Ozkok, supra, because under Colorado law he has neither waived nor exhausted his right to a direct appeal during the deferral period following his guilty plea. He argues that the Immigration Judge erred in interpreting Ozkok to mean that a right to direct appeal will defeat finality only if it relates to the issue of guilt or innocence. Inasmuch as we agree with the Immigration Judge's conclusion regarding the meaning of the term "further proceedings" under the third prong of the Ozkok test, we reject the respondent's contention.
In Matter of Ozkok, supra, we stated that the third prong of the test for a final conviction is met if the court can enter a judgment of guilt upon the defendant's violation of the conditions of the deferred adjudication, without the availability of "further proceedings regarding the person's guilt or innocence of the original charge." Id. at 552. Cognizant of the fact that a conviction must be sufficiently final before it will support a deportation order, we explained our reference to such further proceedings in a footnote, observing that a conviction does not attain sufficient finality for immigration purposes until direct appellate review has been exhausted or waived. Id. at 552 n.7. It was thus our intent that the third prong of the Ozkok standard would be met if an adjudication of guilt could be entered following a violation of the court's order, unless state law provides the defendant a right to a hearing and/or a direct appeal on the issue of "guilt or innocence of the original charge." Therefore, a right to appeal other issues, such as whether a violation of probation has occurred or whether the sentence imposed upon entry of a judgment was correct, will not prevent a finding of conviction for immigration purposes.
Section 16-7-403 of the Colorado Revised Statutes, under which the respondent's judgment and sentence were deferred, contains no provision for a right to an appeal on the issue of guilt.3 The respondent argues that under Colorado caselaw a defendant who is subject to a deferred judgment has not waived or exhausted his direct appellate rights. However, the cases cited by the respondent relate only to appeals from the revocation of probation. See People v. Hallman, 652 P.2d 173 (Colo. 1982) (); People v. Anderson, 703 P.2d 650 (Colo. Ct. App. 1985) (); People v. Boykin, 631 P.2d 1149 (Colo. Ct. App. 1981) (). The respondent has presented no caselaw establishing a right to appellate review on the issue of guilt or innocence of the original charge. We therefore find that after deferral of judgment and sentence under Colorado law, no further proceedings are available to a defendant to contest his guilt.4
We further find, in any case, that the respondent's claim to have retained appeal rights during the period in...
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