In re Manrique
| Citation | 21 I&N Dec. 58 |
| Decision Date | 19 May 1995 |
| Docket Number | File A26 446 213.,Interim Decision No. 3250. |
| Parties | In re Flavio Eduardo MANRIQUE, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 9, 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 sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a 31-year-old native and citizen of Venezuela who was paroled into the United States on August 30, 1984, and became a lawful permanent resident on April 18, 1985. The record reflects that on June 20, 1988, he pled guilty in the 24th Judicial District Court of the State of Louisiana, in and for the Parish of Jefferson, to possession of cocaine. The court accepted the plea as voluntary and intelligent and, pursuant to Louisiana Revised Statutes § 40:983,2 sentenced the respondent to 5 years of probation, with special conditions that he pay various fees and a fine of $5,000.
At deportation proceedings the respondent asserted that his guilty plea did not result in a conviction for immigration purposes. The Immigration Judge rejected the respondent's arguments.
Initially, the Immigration Judge found that section 40:983 was not equivalent to the federal first offender statute because it did not § 40:983,3 sentenced the respondent to 5 years of probation, with special conditions that he pay various fees and a fine of $5,000.
At deportation proceedings the respondent asserted that his guilty plea did not result in a conviction for immigration purposes. The Immigration Judge rejected the respondent's arguments.
Initially, the Immigration Judge found that section 40:983 was not equivalent to the federal first offender statute because it did not contain the same restriction as 18 U.S.C. § 3607(a) (1988), which is available only to persons not previously convicted of violating any federal or state law relating to controlled substances.4 He further concluded that the respondent had been convicted under the standard set forth in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), because section 40:983 provides that upon a violation of probation by the respondent, the court could enter an adjudication of guilt and impose sentence. Finally, the Immigration Judge found no merit to the respondent's contention that his conviction was not final due to a possibility of appeal if he violated his probation, noting that the respondent specifically waived any right to appeal when he pled guilty.
The issue on appeal in this case is whether an alien whose conviction has been set aside pursuant to a state statute that is not equivalent to the Federal First Offender Act ("FFOA") should be deported if he would have been eligible for first offender treatment had he been prosecuted under federal law. For the reasons set forth below, we conclude that such an alien is not deportable.
In determining whether an alien claiming to have received first offender treatment in a state court has been convicted for immigration purposes, our inquiry has been focused on whether the provisions of the state statute are comparable to the FFOA, such that it can be considered a state "equivalent" or "counterpart" to the federal statute. See Matter of Deris, 20 I&N Dec. 5 (BIA 1989); see also Matter of Carrillo, 19 I&N Dec. 77 (BIA 1984); Matter of Forstner, 18 I&N Dec. 374 (BIA 1983); Matter of Golshan, 18 I&N Dec. 92 (BIA 1981); Matter of Kaneda, 16 I&N Dec. 677 (BIA 1979); Matter of Haddad, 16 I&N Dec. 253 (BIA 1977); Matter of Werk, 16 I&N Dec. 234 (BIA 1977). In Matter of Deris, we narrowly interpreted the terms "equivalent" and "counterpart," holding that if a state statute was broader in scope than the FFOA, it would not be considered a counterpart to the federal statute.
Our decision in Deris has recently been criticized by the United States Court of Appeals for the Ninth Circuit in Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994). In that case, the court agreed that the Montana statutes under which the alien's conviction had been expunged were not a state counterpart to the FFOA. However, noting that the FFOA and the Montana statutes both contain expungement provisions,5 the court found that the alien would have been eligible for first offender treatment under the FFOA or an "exact counterpart" under state law due to the first-time nature of her conviction for simple possession of a controlled substance. Id. at 1190-91. Therefore the Garberding court found no rational basis for treating the alien there differently from one whose drug possession "conviction" was "expunged" under a state statute considered to be an exact counterpart to the federal statute.6
The Ninth Circuit further clarified the position taken in Garberding in a case which involved the effect that should be given in immigration proceedings to the expungement provisions of the California pretrial diversion program. Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994). The court concluded there that the interest in uniform implementation of the immigration laws does provide a rational basis for not giving effect to a state expunging procedure where the conviction in question was one that would not have been expunged under the FFOA. Id. at 815.
In light of these cases we have reexamined our position on this issue and conclude that a new approach to the treatment of first offenders under the immigration laws is warranted. We note that for the purpose of this case we are dealing exclusively with our policy as it relates to drug offenses.
As the Ninth Circuit acknowledged in Garberding v. INS, supra, the Attorney General enunciated the now well-established rule in Matter of A-F-, 8 I&N Dec. 429, 445-46 (BIA, A.G. 1956), that Congress did not intend to permit an expunged state drug conviction to be eliminated for immigration purposes. The courts of appeals subsequently agreed that an alien cannot escape deportation by such a technical erasure of his conviction. See Kolios v. INS, 532 F.2d 786 (1st Cir.), cert. denied, 429 U.S. 884 (1976); Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971); de la Cruz-Martinez v. INS, 404 F.2d 1198 (9th Cir. 1968), cert. denied, 394 U.S. 955 (1969); Garcia-Gonzales v. INS, 344 F.2d 804 (9th Cir.), cert. denied, 382 U.S. 840 (1965).
However, an exception to this rule was created by the First Circuit in Mestre Morera v. United States INS, 462 F.2d 1030 (1st Cir. 1972). In that case the court noted the congressional concern expressed in the Federal Youth Corrections Act to afford juvenile offenders an opportunity to atone for their youthful indiscretions.7 Concluding that this concern was as important as the policy to deport drug violators and finding that deportation would thwart the congressional policy toward youth offenders, the court set aside the order of deportation.
The Board agreed with the First Circuit's analysis and held in Matter of Zingis, 14 I&N Dec. 621 (BIA 1974), that a conviction set aside pursuant to the Federal Youth Corrections Act could not provide a basis for deportation. Subsequently, upon a motion by the Immigration and Naturalization Service, the Board extended this rule to drug violators who had been treated as youth offenders under state laws in Matter of Andrade, 14 I&N Dec. 651 (BIA 1974). The Service motion in Andrade was based on a recommendation of the Solicitor General that the Service should not seek deportation on the basis of a youth offender's state conviction which had been expunged or set aside pursuant to a law comparable to the Federal Youth Corrections Act, "if the youth offender upon conviction could have obtained expungement under the federal law if he had been subjected to federal prosecution." Id. at 659.
When a similar issue arose regarding the deportability of aliens accorded first offender treatment under state statutes, the Service submitted a memorandum in which it noted the policy relating to aliens whose drug convictions had been expunged pursuant to the Federal Youth Corrections Act and its state counterparts, and it concluded that the FFOA "is for first offenders the equivalent of the Federal Youth Corrections Act." Matter of Werk, supra, at 235. The Service therefore took the position that an alien processed under the FFOA is not subject to deportation, nor is one "convicted under a state counterpart" to that statute. Id. The Board concurred with this policy, concluding that "a conviction that has...
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