Matter of Andrade
| Decision Date | 05 April 1974 |
| Docket Number | Interim Decision Number 2276,A-11351779 |
| Citation | 14 I&N Dec. 651 |
| Parties | MATTER OF ANDRADE In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This case is before us on motion by the Immigration and Naturalization Service filed April 3, 1974, that we withdraw our prior order and terminate the proceedings. The motion will be granted.
In an amended order dated May 31, 1973, we dismissed respondent's appeal from an order of an immigration judge directing his deportation. While a minor, respondent had been convicted in the Superior Court of California of possession of marijuana in violation of section 11530 of the Health and Safety Code of California. Although that conviction had been subsequently expunged upon completion of youth offender treatment under section 1772 of the California Welfare and Institutions Code, we held that the expungement did not eliminate the conviction as a basis for deportation under section 241(a)(11) of the Immigration and Nationality Act, Matter of Andrade, Interim Decision 2205 (BIA 1973). Our decision was affirmed on judicial review, Andrade-Gamiz v. INS (C.A. 9, No. 73-2174, Andrade-Gamiz v. INS, 416 U.S. 965 (1974). Judgment vacated and case remanded with directions to dismiss the case as moot.
In the motion before us, the General Counsel informs us that, on the recommendation of the Solicitor General, the Service has now adopted the position that marijuana violators who are treated as youth offenders under state laws will be dealt with in the same manner as such offenders under federal law.1 The latter are relieved from deportability on expungement of the conviction, Mestre Morera v. INS, 462 F.2d 1030 (C.A. 1, 1972); Matter of Zingis, Interim Decision 2270 (BIA, March 11, 1974).
As we have previously pointed out, the Service's determination not to institute or press deportation proceedings in a given case or class of cases is a matter of prosecutorial judgment which we do not review, Matter of Geronimo, 13 I. & N. Dec. 680 (1971). Where it would violate current policy to proceed, a criminal judgment may be set aside even though it has already been affirmed on appeal, Petite v. United States, 361 U.S. 529 (1960). The same considerations govern deportation proceedings, Matter of Vizcarra-Delgadillo, 13 I. & N. Dec. 51 (BIA1968). We therefore see no reason why we may not withdraw our prior order and terminate the proceedings, notwithstanding the affirming judgment of the Court of Appeals in the interim.
The Service has asked us to expedite our ruling on its motion to meet a short deadline in the Solicitor General's office. Since the Service motion, if granted, will benefit the respondent, we may safely assume that there will not be opposition by his attorney. We therefore enter our decision on the motion without delaying to await receipt of a possible brief in opposition under 8 CFR 3.8(c).
ORDER: The Board's order dated May 31, 1973, as amended by its order dated August 13, 1973, and the immigration judge's order dated September 28, 1972 are vacated and the proceedings are terminated.
APPENDIX
MOTION OF COMMISSIONER
(April 3, 1974)
THE IMMIGRATION & NATURALIZATION SERVICE MOVES THE BOARD OF IMMIGRATION APPEALS FOR RECONSIDERATION AND WITHDRAWAL of its order of May 31, 1973 in the subject deportation proceedings, and for a termination of the proceeding.
STATEMENT
On May 31, 1973, the Board affirmed the decision of the Immigration Judge directing the deportation of the alien by reason of his conviction of a violation of a law or regulation relating to the illicit possession of marijuana, in violation of § 241(a)(11) of the Immigration & Nationality Act. Deportability was based upon a conviction under California law, for possession of marijuana. In its decision the Board ruled that the alien remained deportable notwithstanding the fact that he was a minor at the time the conviction occurred and the conviction was later expunged under § 1772 of the California Welfare & Institutions Code, upon completion of youth offender treatment.
The respondent filed a Petition for Review of the order of the Board in the Court of Appeals for the Ninth Circuit. He reasserted his contention that in a similar case involving a federal conviction of a youth offender under 18 U.S.C. 5010(b), and a federal expungement under 18 U.S.C. 5021(a), an order of deportation was not upheld on the ground that Congress had shown a clear intention that the expungement should free the youth offender of all taint of a conviction (Morera v. INS, 462 F.2d 1030 (C.A. 1, 1972). The Court of Appeals for the Ninth Circuit declined to apply the Morera principle to the instant case, and affirmed the decision of the Board. A petition for certiorari was then filed.
DISCUSSION
Attached herewith is a memorandum from the Solicitor General, to the General Counsel, Immigration & Naturalization Service, reflecting the view of the Solicitor General after a review of the issues involved in the subject case, that the Morera decision should be extended to marijuana convictions of youth offenders where the crime has been expunged under state laws similar to the expungement provisions of the Federal Youth Corrections Act as in the instant case. Pusuant to this recommendation of the Solicitor General the Immigration & Naturalization Service has now adopted the position that marijuana violators, who are treated as youth offenders, under state laws, will be dealt with in the same manner as such offenders under federal law. It is to be noted that this position does not apply to offenses involving narcotics and drugs other than marijuana, nor to expungement under state laws that do not have a federal counterpart.
In view of the foregoing it is respectfully urged that the order entered by the Board on May 31, 1973 be withdrawn, and that the proceedings be terminated.
MOTION IS MADE that the order entered by the Board on May 31, 1973 be withdrawn, and that the proceedings be terminated.
Re: Manuel Andrade-Gamiz v. Immigration & Naturalization Service, U.S. Supreme Court, No. 73-5694
Dear Mr. Gordon:
A petition for certiorari has been filed in the above-entitled case challenging a deportation order issued under 8 U.S.C. 1251(a)(11) based on the petitioner-alien's California conviction in 1971 for possession of marihuana (two or three cigarettes, as we understand it) in violation of state law. He was a minor at the time and was committed to California Youth Authority. He was honorably discharged about two years later, and his conviction has been set aside pursuant to Section 1772 of the California Welfare and Institutions Code, which provides for such expungement upon satisfactory completion of youth offender treatment. Petitioner contends, inter alia, that the Board of Immigration Appeals' refusal, summarily affirmed by the Ninth Circuit, to take into account the expungement of his conviction, erroneously construes Section 1251(a)(11) and conflicts with the First Circuit's decision in Mestre Morera v. Immigration and Naturalization Service, 462 F.2d 1030 (C.A. 1).
The purpose of this letter is to recommend that the Service promptly (a) revise its policies with respect to the application of Section 1251(a)(11) to a person in petitioner's situation, and (b) reconsider and set aside the instant deportation order. If such action is taken, we can so represent to the Supreme Court and suggest that the case is moot (or arrange for the petition to be withdrawn) thereby avoiding a challenge to the application of Section 1251(a)(11) in what I regard as perhaps the weakest possible context for the government. Our analysis of the problem follows.
Deportation statutes, because of their drastic consequences, must be strictly construed. E.g., Barber v. Gonzales, 347 U.S. 637, 642-643; Fong How Tan v. Phelan, 333 U.S. 6, 10. Accordingly, a state conviction of a youth offender for a marihuana offense which has been expunged following staisfactory rehabilitative treatment should not be regarded as the basis of deportation in the absence of persuasive reasons or a clear statement of congressional intent.
Under 8 U.S.C. 1251(a), various categories of aliens are subject to deportation, upon order of the Attorney General. One category includes, under specified circumstances, aliens "convicted of a crime involving moral turpitude" (8 U.S.C. 1251(a)(4)), while another includes, inter alia, narcotic drug addicts and persons "convicted of a violation of or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotics drugs or marihuana * * *." 8 U.S.C. 1251(a)(11).
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