In re Luviano-Rodriguez
| Decision Date | 29 February 1996 |
| Docket Number | File A92 569 244.,Interim Decision No. 3267. |
| Parties | In re Fructoso LUVIANO-Rodriguez, Respondent<SMALL><SUP>1</SUP></SMALL> |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCHMIDT, Chairman; VILLAGELIU, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: HEILMAN, Board Member, joined by FILPPU and COLE, Board Members. Concurring and Dissenting Opinion: HOLMES, Board Member, joined by DUNNE, Vice Chairman. Dissenting Opinion: HURWITZ, Board Member, joined by VACCA, Board Member.
MATHON, Board Member.
In a decision dated April 26, 1994, the Immigration Judge found the respondent deportable under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994), as an alien convicted of a firearms offense, denied his request for voluntary departure, and ordered him deported. The respondent appealed from that decision. On appeal, the respondent has submitted new evidence and has requested that the proceedings be terminated or, in the alternative, that the record be remanded to the Immigration Judge. The motion to remand will be granted and the record will be remanded pursuant to 8 C.F.R. § 3.1(d)(2) (1995) for further proceedings.
The respondent is a 26-year-old native and citizen of Mexico who entered the United States on January 21, 1983. The record reflects that his status was adjusted to that of lawful permanent resident on December 1, 1990. It further reflects that the respondent was convicted upon a plea of nolo contendere on March 22, 1993, in the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, of carrying a concealed weapon, a .38 caliber handgun, in a vehicle, a misdemeanor under section 12025(A)(1) of the California Penal Code. On appeal and in connection with a motion to remand, the respondent has submitted as additional evidence a copy of an order from the California criminal court dated July 15, 1994, setting aside his plea and dismissing the concealed weapon complaint against him pursuant to section 1203.4 of the California Penal Code.
At his deportation hearing, the respondent denied the allegation of the Order to Show Cause and Notice of Hearing (Form I-221) that he was convicted of the above firearms offense, and he denied the charge of deportability. Through counsel, the respondent sought adjournment of the proceedings pursuant to Matter of Tinajero, 17 I&N Dec. 424 (BIA 1980), in order to seek expungement of his conviction. The Immigration Judge denied his request, noting that Matter of Tinajero, supra, did not apply to a firearms offense, and found the respondent deportable as charged. He further concluded that the respondent was not statutorily eligible for the relief of voluntary departure.
The respondent initially argues that the Immigration Judge erred in denying his request for a continuance to pursue expungement of his firearms conviction. He claims that the Immigration Judge improperly interpreted Matter of Tinajero, supra, as applying only to crimes involving moral turpitude.
On appeal, he has submitted as additional evidence a copy of an order from the California criminal court dated July 15, 1994, setting aside his plea and dismissing the concealed weapon complaint against him pursuant to section 1203.4 of the California Penal Code. He asserts that his conviction has therefore been eliminated as the basis for the charge of deportability and that the proceedings should be terminated or, in the alternative, that the record should be remanded to the Immigration Judge.
The respondent finally contends that the Immigration Judge erred in denying his request for voluntary departure. He claims that the Immigration Judge improperly interpreted section 244(e)(1) of the Act, 8 U.S.C. § 1254(e)(1) (1994), as precluding him from establishing statutory eligibility for that relief. The respondent asserts that the statutory clause barring him from eligibility should be disregarded as inconsistent with the intent of the law and that the merits of his application should be considered.
Initially, we reject the respondent's contention that the Immigration Judge improperly denied his request for a continuance to seek expungement of his conviction. Matter of Tinajero, supra, imposes no mandate on the Immigration Judge. Instead, it merely noted the Service's policy to defer the institution of deportation proceedings in the case of aliens who are eligible to have a criminal conviction expunged and granted a Service motion to remand pursuant to that policy. We have consistently declined to review the Service's exercise of its prosecutorial discretion. See Lopez-Tellez v. INS, 564 F.2d 1302 (9th Cir. 1977); Matter of Torres, 19 I&N Dec. 371 (BIA 1986), and cases cited therein. In the present case, the Immigration Judge denied the respondent's motion for a continuance which had been opposed by the Service on the basis that the respondent's conviction was for a firearms violation, and thus, Matter of Tinajero, supra, was inapplicable. The decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown, and that decision will not be overturned on appeal unless it appears that the respondent was deprived of a full and fair hearing. Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987); 8 C.F.R. § 242.13 (1995). Moreover, inasmuch as the respondent's conviction for carrying a concealed weapon has apparently been expunged and we are remanding the record for further proceedings, as discussed below, no prejudice resulted from the Immigration Judge's denial of a continuance.
We agree with the respondent that if his conviction has been expunged pursuant to section 1203.4 of the California Penal Code he is no longer deportable under section 241(a)(2)(C) of the Act as an alien convicted of a firearms violation. For many years this Board has recognized that a criminal conviction that has been expunged pursuant to section 1203.4 of the California Penal Code may not support an order of deportation. See Matter of Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966; A.G. 1967); Matter of G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961), and cases cited therein. However, an exception to this rule exists for expunged drug convictions. The Attorney General has ruled that an alien convicted of a drug offense will be subject to deportation even if the conviction has been expunged. See Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959).
In Matter of A-F-, supra, the Attorney General declined to follow the general rule regarding expungements pursuant to section 1203.4 of the California Penal Code and stated that Congress did not intend for aliens convicted of drug offenses to escape deportation on the basis of a state procedure authorizing a technical erasure of the conviction. In doing so, the Attorney General created an exception to the line of cases by this Board ruling that a conviction which has been expunged pursuant to this same California statute could not be made the basis for deportation proceedings because there was no longer a record of conviction. See Matter of D-, 7 I&N Dec. 670 (BIA 1958); Matter of H-, 6 I&N Dec. 619 (BIA 1955); Matter of E-V-, 5 I&N Dec. 194 (BIA 1953); Matter of O-T-, 4 I&N Dec. 265 (C.O. 1951). However, the Attorney General specifically limited this exception to drug offenses. Matter of A-F-, supra, at 445. Soon thereafter, this Board, and the Attorney General, again confronted the effect of expungement of a conviction under section 1203.4 of the Penal Code of California in a case that did not involve drugs. Matter of G-, supra. The Attorney General agreed with our conclusion that his ruling in Matter of A-F-, supra, should not be extended beyond drug cases. Matter of G-, supra, at 168.
The Immigration Judge in this case ruled that a firearms conviction resembled a drug conviction more than it resembled a conviction for a crime involving moral turpitude, and thus, expungement of such a conviction pursuant to section 1203.4 of the California Penal Code did not defeat deportability. Therefore, the Immigration Judge expanded the Attorney General's exception in Matter of A-F-, supra, to firearms violations in ruling that an alien whose firearms conviction has been expunged remains deportable on the basis of that conviction. Such a unilateral expansion of the rulings of the Attorney General and this Board is inconsistent with 8 C.F.R. § 3.1(g).
Accordingly, we conclude that both the Board and the Immigration Judge are bound by the Attorney General's rulings in Matter of Ibarra-Obando, supra, and Matter of G-, supra, which affirmed our precedent on nonnarcotic cases that expungement under section 1203.4 of the California Penal Code removes a criminal conviction as a basis for deportability. Since the respondent has submitted on appeal a copy of an order from a California criminal court, apparently setting aside his plea and dismissing the concealed weapon complaint pursuant to section 1203.4 of the California Penal Code, we will remand the record to the Immigration Judge for further proceedings in accordance with this decision.
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