In re Roldan-Santoyo

• Court: U.S. DOJ Board of Immigration Appeals
• Writing for the Court: Heilman
• Citation: In re Roldan-Santoyo, 22 I&N Dec. 512 (B.I.A. 1999)
• Decision Date: 03 March 1999
• Docket Number: Interim Decision No. 3377.,File A90 286 629.
• Parties: In re Mauro ROLDAN-Santoyo, Respondent.

22 I&N Dec. 512

In re Mauro ROLDAN-Santoyo, Respondent.

Interim Decision No. 3377.

File A90 286 629 - Boise.

Board of Immigration Appeals.

Decided March 3, 1999.

(1) Under the statutory definition of "conviction" provided at section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996), no effect is to be given in immigration proceedings to a state action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute.

(2) With the enactment of the federal statute defining "conviction" with respect to an alien, our decisions in Matter of G-, 9 I&N Dec. 159 (BIA 1960, A.G. 1961); Matter of Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966, A.G. 1967); Matter of Luviano, 21 I&N Dec. 235 (BIA 1996), and others which address the impact of state rehabilitative actions on whether an alien is "convicted" for immigration purposes are no longer controlling.

(3) Once an alien is subject to a "conviction" as that term is defined at section 101(a)(48)(A) of the Act, the alien remains convicted for immigration purposes notwithstanding a subsequent state action purporting to erase the original determination of guilt through a rehabilitative procedure.

(4) The policy exception in Matter of Manrique, 21 I&N Dec. 58 (BIA 1995), which accorded federal first offender treatment to certain drug offenders who had received state rehabilitative treatment is superseded by the enactment of section 101(a)(48)(A), which gives no effect to state rehabilitative actions in immigration proceedings. Matter of Manrique, supra, superseded.

(5) An alien, who has had his guilty plea to the offense of possession of a controlled substance vacated and his case dismissed upon termination of his probation pursuant to section 19-2604(1) of the Idaho Code, is considered to have a conviction for immigration purposes.

Ernest A. Hoidal, Esquire, Boise, Idaho, for the respondent.

Ann M. Tanke, District Counsel, for the Immigration and Naturalization Service.

Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, GRANT, and SCIALABBA, Board Members. Concurring and Dissenting Opinion: VILLAGELIU, Board Member,

joined by SCHMIDT, Chairman; ROSENBERG and GUENDELSBERGER, Board Members. Dissenting Opinion: ROSENBERG, Board Member.

HEILMAN, Board Member.

We have jurisdiction over this timely appeal pursuant to 8 C.F.R. § 3.1(b) (1998). The request for oral argument before this Board is denied. 8 C.F.R. § 3.1(e). In an oral decision dated April 27, 1995, the Immigration Judge found the respondent deportable under section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994),¹ based on his conviction for a controlled substance violation.¹ Additionally, the Immigration Judge determined that the respondent was ineligible to apply for relief from deportation under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), because he had not demonstrated lawful unrelinquished domicile of 7 consecutive years. On appeal the respondent contests his deportability and, alternatively, his ineligibility for section 212(c) relief. During the pendency of this appeal there have been significant changes in the law regarding both what constitutes a conviction for immigration purposes, and the availability of a section 212(c) waiver for aliens convicted of controlled substance violations. We will separately address these changes below and will dismiss the appeal.

I. ISSUE PRESENTED

The issue before us is whether the respondent, a first offender whose guilty plea was vacated and whose case was dismissed upon the termination of his probation pursuant to an Idaho rehabilitative statute, remains convicted for immigration purposes in light of our decision in Matter of Manrique, 21 I&N Dec. 58 (BIA 1995), and the subsequent passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (enacted Sept. 30, 1996) ("IIRIRA"), in which Congress provided a statutory definition for the term "conviction" for immigration purposes.²

II. FACTUAL BACKGROUND

On November 29, 1993, the 27-year-old respondent, a native and citizen of Mexico, pleaded guilty to possession of more than 3 ounces of a controlled substance, marijuana, which was a felony violation of section 37-2732(e) of the Idaho Code. On January 10, 1994, the District Court of the Sixth Judicial District of the State of Idaho, in and for the County of Bannock, withheld adjudication of judgment, sentenced him to 3 years' probation and imposed several monetary penalties. The terms of his probation included restrictions forbidding the respondent to use alcohol or to associate with any individuals not approved by the probation officer. The respondent was also subject to search of his residence, vehicles, and person at his probation officer's request. Finally, the court ordered that the respondent serve 90 days' confinement at the discretion of the probation officer. Deportation proceedings based on this offense were commenced on March 28, 1994.

While in deportation proceedings before the Immigration Court, the respondent filed a motion in the Idaho state court for early release from probation and dismissal of the charge in accordance with the withheld judgment. On September 6, 1994, the respondent's motion was granted. Subsequently, the court granted the respondent's March 6, 1995, motion requesting that his guilty plea be vacated pursuant to section 19-2604(1) of the Idaho Code.³ The respondent argued before the Immigration Judge that because the Idaho state court's actions rendered him no longer convicted of the original charge, he was not deportable under section 241(a)(2)(B)(i) of the Act. In his April 27, 1995, oral decision, the Immigration Judge found that all three prongs of the definition for conviction enunciated in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), had been met and found the respondent deportable based on his original plea of guilt to a controlled substance violation notwithstanding the Idaho court's subsequent action vacating that plea. This appeal followed.

III. THE EVOLUTION OF THE DEFINITION OF "CONVICTION"FOR IMMIGRATION PURPOSES

Until Congress enacted section 322 of the IIRIRA, the definition of "conviction" for immigration purposes had been a fluid one. In the absence of a statutory definition, this Board, with direction from the Supreme Court and the Attorney General, struggled for more than 50 years to reconcile its definition with the increasing numbers of state statutes providing ameliorative procedures affecting the "finality" of a conviction under state law. See, e.g., Pino v. Landon, 349 U.S. 901 (1955); Matter of Ozkok, supra; Matter of G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961); Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959); Matter of L-R-, 8 I&N Dec. 269 (BIA 1959); Matter of O-, 7 I&N Dec. 539 (BIA 1957); Matter of F-, 1 I&N Dec. 343, 348 (BIA 1942).

By the time of our decision in Matter of Ozkok, supra, we recognized that most states had adopted one or more methods of mitigating the consequences of a conviction, and that these methods differed from one another in name and breadth.⁴ Some state statutes accord rehabilitative treatment only to first offenders and/or youth offenders and may further restrict such treatment to those individuals determined to be guilty of specified categories of offenses. Others offer rehabilitative relief to any defendant who is able to successfully complete a probationary period, without restriction on the nature of the offense. These rehabilitative measures may be implemented either before or after an entry of judgment.

For example, some state statutes provide for an initial adjudication of guilt upon a finding, admission, or noncontesting of guilt, but contain procedures variously termed as the setting aside, annulling, vacating, cancellation, or expungement of the original adjudication of guilt, which remove subsequent state consequences for the misconduct upon satisfactory completion of a probationary period. There are also differences regarding whether or not such an erasure is "automatic" or must be applied for, with a grant being a matter of the court's discretion. Among these state statutes there are further variances regarding the completeness of the erasure. Generally, the original judgment retains its vitality for at least some purpose, despite broad language in some ameliorative statutes suggesting otherwise.⁵

Other states have implemented the same rehabilitative policy objectives by enacting statutes which simply defer or withhold adjudication of guilt, allowing for a final dismissal or discharge of proceedings upon satisfaction of the terms of probation. In effect, rather than providing measures which would "erase" a conviction, these statutes provide that a judgment is not to be entered in the first instance so long as the transgressor fully complies with the conditions set by the state court. Despite there never having been a conviction as far as these states are concerned, some states further provide for "expungement" of the records relating to the original charge.

Out of concern that a more uniform approach was needed for determining what will constitute a conviction for immigration purposes, we concluded in Matter of Ozkok, supra, that the time had come for us to revise the definition we had crafted in Matter of L-R-, supra, which required that the state action be considered a conviction by the state for at least some purpose. In so doing, we noted a long-standing rule that the determination of whether or not a conviction exists for immigration purposes is a question of federal law and is not dependent on the vagaries of state law. Matter of Ozkok, supra, at 551 n.6.

In Ozkok, we stated that we found no rational or legal...