Kolios v. Immigration and Naturalization Service, No. 75-1264

• Citation: 532 F.2d 786
• Decision Date: 30 March 1976
• Docket Number: No. 75-1264
• Parties: Ioannis Georgios KOLIOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 786

532 F.2d 786

Ioannis Georgios KOLIOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 75-1264.

United States Court of Appeals, First Circuit.

Argued Oct. 6, 1975.

Decided March 30, 1976.

Ronald I. Bell, with whom Robert H. Goldman, and Goldman, Curtis, Cashman, Leahey & Latham, Lowell, Mass., were on brief for petitioner.

Robert E. Courtney, III, Atty., Dept. of Justice, with whom B. Franklin Taylor, Jr., Acting Chief, Government Regulations Section, Crim. Div., and James P. Morris, Atty., Dept. of Justice, Washington, D. C., were on brief, for respondent.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Petitioner, a native and citizen of Greece, entered this country in 1968 as a lawful immigrant. In 1972, at 20 years of age, while serving in the armed forces of the United States, he pleaded guilty to selling marijuana in violation of Texas law, and was sentenced to five years in prison. Imposition of sentence was suspended and petitioner was placed on probation. In 1973, he was found deportable under 8 U.S.C. § 1251(a)(11), which provides for the deportation of an alien who, inter alia, "has been convicted of a violation of . . . any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marijuana". However, he had not yet been deported when, in 1975, he fulfilled his conditions of probation and his conviction was set aside by the Texas court. Petitioner thereupon took his case to the Board of Immigration Appeals, urging reversal on the ground that he was no longer "convicted" within the meaning of the Immigration and Nationality Act. The Board rejected this contention and the instant petition for review followed.

The judicial precedents, as petitioner recognizes, support the Board's decision. ¹ They stem from the Attorney General's ruling in Matter of A__ F__, 8 I. & N. Dec. 429 (1959) (dictum). Prior to that decision, state expungement statutes were traditionally given effect by the Board of Immigration Appeals, both as to expungement of crimes involving moral turpitude (§ 1251(a)(4)), and as to narcotics offenses (§ 1251(a)(11)). ² But in 1956 Congress had amended § 1251(b), under which deportation for crimes involving moral turpitude could be avoided by an executive pardon or by a judicial recommendation against deportation made at or within 30 days after the time of sentencing, to make it clear that the section was inapplicable to the narcotics offenses described in § 1251(a)(11). ³ The Attorney General reasoned that the progressive strengthening of deportation laws affecting aliens involved in narcotics, ⁴ capped by the 1956 amendment, evidenced a national policy which would no longer permit such a flexible interpretation of "convicted" as to recognize a subsequent expungement under state procedures having nothing to do with the merits. He also noted that his view would avoid making deportability depend upon the fortuity of a state expungement law. For 17 years this rationale has been accepted by judicial decision, with no contrary action on the part of Congress.

Petitioner, however, presents a sympathetic case. He is young. His crime appears to have been near the minimum in the drug spectrum. He so conducted himself while under probation that the Texas court set aside his conviction and dismissed the indictment against him. Under Texas law this meant that for most purposes the conviction became nonexistent. ⁵ He questions why he should be deported when someone convicted of a crime of moral turpitude could avoid deportation by obtaining the same order of expungement. ⁶ He also notes that had he been convicted for a narcotics offense under federal law and dealt with under the Federal Youth Corrections Act, he would not be deported following expungement, Mestre Morera v. INS, 462 F.2d 1030 (1st Cir. 1972); Matter of Zingis, 14 I. & N.Dec. (I.D.2270) (B.I.A.1974). Further, the Service now accords recognition to state expungements of marijuana offenders treated and expunged under state juvenile statutes, Matter of Andrade, 14 I. & N.Dec. (I.D.2276) (B.I.A.1974). In light of the currently ambivalent community and Congressional attitudes toward minor marijuana offenses, see 21 U.S.C. §§ 186, 844 (1970), the policy of construing deportation laws strictly against deportability, Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954), and the legitimate goal of stimulating rehabilitation behind any expungement statute, he contends that the time has come to ameliorate the harshness of the rule initiated by the 1959 opinion of the Attorney General.

Recognizing the force of the argument, and of our brother's dissent, we nevertheless must start with the proposition that deportation is a matter of Congressional policy, Kleindienst v. Mandel, 408 U.S. 753, 766-67, 92 S.Ct. 2576, 2583-84, 33 L.Ed.2d 683, 693-94 (1972). In Mestre Morera, supra, we held that the Congressional policy of deportation for narcotics offenders conflicted with another Congressional policy of rehabilitation for young offenders whose convictions were erased under the Federal Youth Corrections Act. ⁷ Finding no express preclusion of such erasure as a defense to deportation, we held that Congress must have intended the FYCA expungement provisions to be fully effective even after the 1956 amendment of § 1251(b) which closed the doors of pardon and judicial recommendation against deportation to drug offenders. ⁸ We said that if Congress had intended such expungement to be "inoperative with respect to section (a)(11), it would have expressly said so."

The doctrine of Mestre Morera has been extended by the Board of Immigration Appeals to orders effecting erasure of minor marijuana convictions under state juvenile laws. This practice is consistent with the Congressional policy, at least as interpreted by Mestre Morera, that statutory schemes aiming at the rehabilitation of youthful offenders should be given full effect. ⁹

To go beyond this point and recognize other expungement statutes as barriers to deportation is, we think, to go beyond the Congressional policy evidenced by its excepting narcotics offenses from the saving effects of a pardon or a judicial recommendation against deportation. One can argue that neither judicial recommendations nor many pardons purport to set aside convictions, that they are motivated as much by mercy as by rehabilitation, and that successful invocation of an expungement statute necessarily implies satisfactory completion of a term of probation concrete evidence of rehabilitation. Yet a pardon by the President or a Governor is a solemn and deliberate act by the highest official of the nation or a state. And a judicial recommendation against deportation, after representations from prosecution and immigration officials, is another deliberate and focused action. That such actions should be unavailing to forestall deportation while orders of expungement in whole classes of like cases following successful completion of probationary terms would suffice seems to us to draw too fine a line.

We note also the blanket nature of state expungement statutes. As is true of the statute in this case, the narcotics offense could range from simple possession of marijuana to wholesale distribution of hard drugs. So long as the trial judge deems probation appropriate, expungement is a possibility. Yet Congress, when it has moved to ameliorate sanctions in narcotics cases, has taken a selective approach. In its 1970 amendment to 21 U.S.C. § 844, it provided for the possibility of expungement, but limited the possibility to cases of simple possession of a controlled substance, and provided more complete expungement for young offenders. Counsel have provided us with bills introduced into the current 94th Congress which seek with similar precision to exclude as bases for deportation convictions for possession of marijuana or for distribution of a small amount of marijuana for no remuneration. ¹⁰ It seems highly unlikely to us that Congress, which has narrowly confined the scope of expungement of conviction in federal drug cases, would contemplate that state expungement statutes of general applicability could insulate any narcotics offender from the sanction of deportation. ¹¹

Were we dealing with the amendment to § 1251(b) as a new statute, we might feel free to give greater weight to the principle of strictly construing a deportation provision. But the amendment has been on the books for twenty years; judicial and administrative interpretations, although not many, have been consistent; and such amelioration of sanctions as Congress has allowed for federal drug offenders has been narrowly defined. We conclude, not without some hesitancy, that relief in such cases as this is properly a matter for the Congress. We add our own view that some flexibility would appear to be desirable; automatic deportation of all drug offenders, despite conviction for a minor offense, satisfactory completion of a probationary term, and erasure of the conviction by the concerned state, would seem to serve no national interest.

The petition for review is denied.

McENTEE, Circuit Judge (dissenting).

While not discounting the persuasiveness of the majority's opinion in this case I nonetheless must dissent. This case is a difficult one in terms both of its human dimensions and of the problems of statutory construction which it involves. While I have striven to avoid permitting the sympathetic aspects of petitioner's situation to control, I have been influenced in my approach to the statutory language by the consistent line of Supreme Court decisions which hold that in deciding whether a given statute requires the deportation ¹ of an alien, doubts as to the correct construction of the statute should be resolved in the alien's favor. "(S)ince the stakes are considerable for the individual, we will not assume that Congress meant to...