Matter of Johnson
| Decision Date | 08 November 1965 |
| Docket Number | Interim Decision Number 1528,A-6012667 |
| Parties | MATTER OF JOHNSON In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
Respondent, a native and citizen of Canada, a 24-year-old male, last entered the United States on or about December 7, 1944. The deportation charge is based on the Service contention that respondent was convicted for illegal possession of narcotics. Respondent contends that the criminal proceeding did not result in a conviction for immigration purposes. The special inquiry officer, agreeing with respondent's contention, terminated deportation proceedings and certified his order to the Board. We find the charge sustained and will reopen proceedings.
An information filed in the Superior Court, Kings County, Washington charged the respondent with illegal possession of narcotics; he entered a plea of guilty and applied for probation.
In Washington, following a plea or a verdict of guilty, a court, with exceptions not applicable here, using either the Suspended Sentence Act (Appendix A) or the Probation Act (Appendix B) may impose sentence and stay execution or using the Probation Act may suspend the imposition of sentence. In the instant case, the court using the Probation Act suspended the imposition of sentence. On March 12, 1965 the court entered an order in respondent's case providing that "the imposition of sentence against the Defendant herein be, and the same is hereby deferred for a period of five (5) years, from date" upon the condition that he follow "the instructions of the Board of Prison Terms and Paroles" and that he "serve a term of four (4) months in the Kings County Jail." The order provided that it was to remain in effect until the court's further action (Ex 2). Respondent served his sentence and was released. No further action has been taken by the court. The question is whether the alien was convicted for purposes of that portion of section 241(a)(11) of the Act requiring the deportation of an alien convicted for violating a law pertaining to narcotics.
Many factors had to be considered before the term "conviction could be interpreted for immigration purposes. There was the diversity of state procedures following a plea or verdict of guilty, the fact that a conviction could exist for some state purposes and not for others, the necessity for some uniformity in deportation proceedings, and the Supreme Court's holding that a degree of finality had to be achieved before a conviction existed for deportation purposes (Pino v. Landon, 349 U.S. 901 (1955)). As to the definition of the term "conviction," disregarding form and the ambiguous attitude of a state, we sought to achieve uniformity by holding that a conviction existed for immigration purposes if the state considered that a proceeding in one of its courts had resulted in a conviction for any one purpose. As to finality, disregarding the conflicting interpretations of the different states as to what orders are "final" judgments, and concluding that a "final" judgment is not necessary, we found the finality required by Pino present if a court disposed of a case with an order which removed the case from the docket, and subjected the alien to judicial control without the necessity of giving the alien a new trial as to his guilt or innocence of the charged crime whenever the court desired to exercise its right to control his person (Matter of O----, 7 I. & N. Dec. 539 (1957)).
Thus, when a state considers a proceeding has resulted in a conviction, we consider it one for deportation purposes if the judicial action results in a suspended sentence accomplished either by the passing of sentence and suspension of its execution, or a suspension of the imposition of sentence; however, when a court merely postpones action following a plea or verdict of guilty and continues the case on a calendar for further consideration, or where the alien is entitled to a new trial to determine his guilt or innocence before the court can control him if it desires to supplement or change its original order there is no conviction for immigration purposes.
The special inquiry officer, following Matter of O----, is of the belief that the court's action here resulted not in the suspension of the imposition of sentence but in the postponement of the case for consideration at a future date. The record does not support his conclusion. In removing the case from the docket, imposing punishment on respondent, and subjecting him to further punishment at the court's pleasure without the necessity of retrying the question of his guilt, the court suspended imposition of sentence rather than merely postponed to some future date the question of guilt or the question of punishment (Appendix C).
Our rules require the finding that the state hold the criminal proceeding had resulted in a conviction for any one purpose. In the instant case we note that the Probation Act which provides for the suspension of imposition of sentence comes into effect only "after a conviction," that the section dealing with expungements speaks of the probationer as one punished "for the offense for which he has been convicted," and that it provides for the release from penalties resulting from the crime for which the person "has been convicted." We note further that the respondent was required to serve a term of imprisonment as a condition of probation and that there can be no punishment for an offense under the laws of the State of Washington unless the person "shall have been duly and legally convicted" (RCW 10.050.).
Before we consider other matters advanced by the special inquiry officer and counsel one further matter concerning Matter of O---- requires discussion. The alien in Matter of O---- sought judicial review on the grounds that he had a nondeportable status which was preserved by a savings clause, and that a sentence to imprisonment in New York State, execution being suspended and the suspension never revoked, lacks the finality to support an order of deportation. The court, without any analysis of the issues, granted the alien's motion for summary judgment (Olf v. Rogers, Civ. No. 2452-57, D.D.C. March 3, 1959). With due respect to the court, we believe that Matter of O----, may still be followed. The savings clause is not invoked here and needs no comment. If it was the contention that a suspended sentence cannot be considered a conviction for immigration purposes because it lacks finality that persuaded the court, it is one which has been considered and rejected in a number of cases after full consideration. For example, Arrellano-Flores v. Hoy, 262 F.2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921, held that a conviction for deportation purposes resulted where under a law similar to the one here considered, proceedings were suspended by a California state court and probation granted on condition that the alien serve a year in jail. To similar effect, Burr v. Immigration and Naturalization Service, Civ. No. 19707 (9th Cir., August 2, 1965); Kelly v. Immigration and Naturalization Service, 349 F.2d 473 (9th Cir., 1965); Garcia-Gonzalez v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir., 1965), cert. den. 34 L.W. 319; Gutierrez v. Immigration and Naturalization Service, 323 F.2d 593 (9th Cir., 1963), cert. den. 12 L. ed. 2d 179; Zabanazad v. Rosenberg, 306 F.2d 861 (9th Cir., 1962); Adams v. United States, 299 F.2d 327 (9th Cir., 1962); Burr v. Edgar, 292 F.2d 593 (9th Cir., 1961); Wood v. Hoy, 266 F.2d 825 (9th Cir., 1959); United States ex rel. Fells v. Garfinkel, 158 F. Supp. 524 W.D. Pa. (1957), affd. 251 F.2d 846 (3rd Cir., 1958). In view of this authority supporting the view that a suspended sentence results in a conviction for immigration purposes, we believe it proper to follow the rules laid down in Matter of O----.
In reaching the conclusion he did, the special inquiry officer was influenced by the ruling of the Attorney General of the State of Washington that the suspension of the imposition of sentence followed by an expungement does not result in a conviction for the purposes of the law which provides for the increased punishment of a person convicted after having been previously convicted. (The record does not show an expungement here.) We have pointed out if a state considers that a conviction exists for any one purpose, it is immaterial in deportation proceedings that the state does not consider the conviction one for all purposes. Here the state has clearly shown it considers a conviction to exist. .) The rule is otherwise for expungement of convictions resulting from nonnarcotic violations, Matter of G----, 9 I. & N. Dec. 159, A.G. (criticized, Burr v. Immigration and Naturalization Service, supra)).
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