Rehman v. Immigration and Naturalization Service, 153

• Decision Date: 14 October 1976
• Docket Number: No. 153,D,153
• Citation: 544 F.2d 71
• Parties: Shaheen REHMAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 76-4022.
• Court: U.S. Court of Appeals — Second Circuit

Page 71

544 F.2d 71

Shaheen REHMAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 153, Docket 76-4022.

United States Court of Appeals, Second Circuit.

Argued Sept. 16, 1976.

Decided Oct. 14, 1976.

Vincent A. O'Neil, Syracuse, N. Y. (Costello, Cooney & Fearon, Syracuse, N. Y., on the brief), for petitioner.

Mary P. Maguire, Sp. Asst. U. S. Atty. (Robert B. Fiske, Jr., U. S. Atty., Southern District of New York, and Thomas H. Belote, Sp. Asst. U. S. Atty., New York City, on the brief), for respondent.

Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.

LUMBARD, Circuit Judge:

Pursuant to 8 U.S.C. § 1105a, Shaheen Rehman petitions for review of an order of deportation entered November 17, 1975 by the Board of Immigration Appeals. Rehman was found deportable under 8 U.S.C. § 1251(a)(11) by virtue of his conviction in a New York court for illegal possession of marijuana. Before us, as before the Board, he argues that because his marijuana conviction was accompanied by a certificate of relief from disabilities, he has not been "convicted" within the meaning of § 1251(a)(11). We agree.

Rehman, a native and citizen of Pakistan, last entered the United States on January 17, 1974 as a nonimmigrant student authorized to remain until May 31, 1975. At the airport, however, he was found to be in possession of hashish; and on March 29, 1974 before Judge Roth of the New York City Criminal Court in Queens County, he pleaded guilty to criminal possession of a controlled substance in the seventh degree, N.Y. Penal Law § 220.23 (McKinney Supp.1975). Seventh degree possession is simple knowing possession and is New York's lowest grade drug offense. A 22-year old graduate student at Syracuse University with good character references, Rehman was sentenced to a conditional discharge for one year and fined one hundred dollars. At the same time, the judge granted him a temporary "Certificate of Relief from Disabilities" to become final on March 29, 1975.

In February 1975 the Immigration and Naturalization Service commenced deportation proceedings. After a hearing on March 11, 1975, an Immigration Judge found Rehman subject to mandatory deportation under § 1251(a)(11) by virtue of his conviction; and the Board dismissed Rehman's appeal.

Construction of a term in a federal immigration statute is an issue of federal law. Accordingly, neither the name by which a state chooses to refer to a particular disposition nor the deportation consequence that a state might wish to assign is necessarily determinative of whether a defendant has been "convicted" for purposes of § 1251(a)(11). Rather, we must interpret this section in accordance with Congressional intent. Of course, merely by turning to state sanctions as a trigger for the deportation process, Congress brings into play to some extent each state's own system of criminal justice.

Deportation here would be contrary to the purposes of New York law. New York Correction Law § 701 provides that a recipient of a certificate of relief from disabilities shall not suffer "automatic forfeiture of any other right or privilege" (emphasis supplied) by virtue of his conviction. ¹ It does not prevent any judicial or administrative authority from relying on the conviction as a basis for the exercise of a "discretionary power to suspend, revoke, (or) refuse to issue . . . any license, permit or other authority or privilege" (emphasis supplied). ² By freeing the offender from automatic forfeitures while leaving him subject to discretionary ones, § 701 is designed to ensure that the conviction will not trigger legal consequences from which there is no chance of an appeal in which equities of the individual case can be considered. ³ Deportation under § 1251(a)(11) is of exactly this mandatory character. See, e. g., Guan Chow Tok v. INS, 538 F.2d 36, 38 (2d Cir. 1976). Deportation also renders § 701's relief from other disabilities largely moot. Hence, it seems clear to us that the New York legislature could not have intended that recipients of § 701 certificates would remain subject to mandatory deportation. ⁴

Of course, the state does not have full discretion as to the deportation consequences to someone convicted of a state drug crime. If an alien has been convicted of a crime involving moral turpitude, under 8 U.S.C. § 1251(b) an executive pardon or a judicial recommendation against deportability will protect him from deportation. Section 1251(b) specifically provides, however, that executive pardons and judicial recommendations against deportability will not suffice to protect drug offenders. Thus, Congress has exhibited a strict attitude regarding deportation of convicted drug criminals. See also Bronsztejn v. INS, 526 F.2d 1290 (2d Cir. 1975).

Nonetheless, if Rehman had been tried on federal charges rather than on New York state charges, he would most likely not now be deportable, for two independent reasons. First, under 21 U.S.C. § 844 a first-offender guilty of simple possession of drugs can in the discretion of the court be placed on probation and never actually be convicted at all. Hence, he would have no "conviction" for which to be deported. Second, under 18 U.S.C. § 4209 a "young adult offender" (under twenty-six years of age at the time of conviction) can in the discretion of the court be sentenced under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-26, which in turn allows for expungement of the conviction after satisfactory completion of probation, id. § 5021. The INS recognizes such expungements for deportation purposes, Matter of Singis, Interim Dec. 2270 (B.I.A.1974); see also Mestre Morera v. INS, 462 F.2d 1030 (1st Cir. 1972), and grants the same recognition to state juvenile statutes, Matter of Andrade, Interim Dec. 2276 (B.I.A.1974).

If the word "conviction" is to be construed rigidly, Rehman must be deported since his New York "conviction" still stands under New York law. ⁵ We think, however, that a less formalistic approach is appropriate ⁶ and more consistent with Congressional intent. So far as any automatic collateral consequences are concerned, Rehman has not been "convicted" under New York law. There is no sound reason why state policies should not be accorded the same respect as federal leniency policies would receive under the same circumstances. Where state judicial relief from disabilities is clearly intended to prevent mandatory deportation, and full expungement of a federal conviction would have been available in an analogous case, the offender should be held not to have been "convicted" for purposes of § 1251(a)(11). ⁷ This is not an unduly burdensome determination for the INS to have to make. It will result in a more uniform substantive application of federal law; deportation will not be triggered by minor differences and fortuitous technicalities in state laws. ⁸

We realize that three other Circuits have ruled to the contrary. Kolios v. INS, 532 F.2d 786 (1st Cir. 1976) (2-1 decision), cert. denied, --- U.S. ----, 97 S.Ct. 234, 50 L.Ed.2d 165 (1976) (No. 1685); Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971); Cruz-Martinez v. INS, 404 F.2d 1198 (9th Cir. 1968), cert. denied, 394 U.S. 955, 89 S.Ct. 1291, 22 L.Ed.2d 491 (1969). In each of these cases the defendant was under twenty-six; i.e., he, like Rehman, could have been eligible for expungement under the Federal Youth Corrections Act. Also, Gonzalez de Lara involved possession of marijuana, a crime for which probation without conviction could have been available under 21 U.S.C. § 844 (enacted in 1970). Thus, these precedents do implicitly support the INS's position in the instant case. Except in the Kolios opinion, however, no mention was made of the available federal analogs to the state leniency statutes.

The reasoning of these other courts has been that "it would defeat the purpose(s) . . . (of federal law) if provisions of local law, dealing with rehabilitation of convicted persons, could remove them from the ambit of (federal penal enactments)" (brackets in original). Gonzalez de Lara v. United States, supra at 1318-19, quoting Cruz-Martinez v. INS, supra at 1199. Yet, where mandatory deportation would frustrate the purposes of a state's relief statute, and federal law provides for erasure of federal convictions under circumstances identical to those of the case at issue, it seems to us that the state's leniency policy can be respected without fear of undermining enforcement of federal deportation laws. States' freedom to remove persons from the ambit of deportation law would extend no further than where Congress itself has gone for federal criminals.

The deportation order is set aside.

MANSFIELD, Circuit Judge (concurring):

I concur in Judge Lumbard's carefully considered opinion. I would only add that in my view, even if the term "convicted" as used in 8 U.S.C. § 1251(a) (11) were construed to embrace state judgments which are later expunged, the simultaneous issuance of the Certificate of Relief from Disabilities prevents the state court's adjudication of guilt from amounting to a conviction. Thus, I believe that even under a "formalistic" construction of the statutes at issue, as distinguished from the liberal interpretation in favor of an alien which is mandated, Lennon v. I.N.S., 527 F.2d 187 (2d Cir. 1975), the order of deportation must be set aside.

In dealing with possession of a drug such as marijuana for personal use (as distinguished from sale), the New York Legislature had numerous alternatives open to it. It could have chosen not to make the possession a crime at all, in which event the absence of any conviction would preclude the I.N.S. from invoking § 1251(a)(11). Alternatively the Legislature could have provided civil NARA-type ¹ relief only, which would not trigger the deportation statute. Taking a different course, the State might have made the conduct a crime and provided that a person found guilty would stand...