Sandoval v. Immigration Service

• Decision Date: 12 February 2001
• Docket Number: No. 99-3158,99-3158
• Citation: 240 F.3d 577
• Parties: (7th Cir. 2001) Jose E. Sandoval, Petitioner, v. Immigration and Naturalization Service, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 577

240 F.3d 577 (7th Cir. 2001)

Jose E. Sandoval, Petitioner, v. Immigration and Naturalization Service, Respondent.

No. 99-3158

In the United States Court of Appeals For the Seventh Circuit

Argued September 27, 2000

Decided February 12, 2001

Petition for Review of an Order of the Board of Immigration Appeals No. A42 341 246.

Before Posner, Coffey, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Jose Sandoval, petitioner, entered the United States as a permanent resident on July 31, 1990. In December 1991 he was charged by information filed in the Circuit Court of Cook County, Illinois, with possession of more than thirty but less than 500 grams of cannabis. See Ill. Rev. Stat. ch. 56", para. 704(d) (1991), now codified as 720 Ill. Comp. Stat. Ann. 550/4 (West Supp. 2000).¹ Following his entry of a plea of guilty to the violation of sec. 704(d), Sandoval was sentenced to a period of two years probation.

On the basis of his drug conviction, the Immigration and Naturalization Service ("the INS") began deportation proceedings against Sandoval in April 1992. In response to the threat of deportation, Sandoval promptly filed a post- conviction motion, pursuant to the Illinois Post- Conviction Hearing Act ("the Act"). Ill. Rev. Stat. ch. 38, para. 122 et seq. (1991), now codified as 725 Ill. Comp. Stat. Ann. 5/122-1 (West Supp. 2000). The Act provides a remedy to state criminal defendants claiming substantial violations of their federal or state constitutional rights by allowing collateral attack on a judgment of conviction. See People v. Towns, 696 N.E.2d 1128, 1133 (Ill. 1998). In his post-conviction motion, Sandoval alleged that he had entered a guilty plea on advice of counsel, and that counsel had advised him not to worry about his status as a resident alien. He further asserted that he never would have entered the plea if he had known that it would subject him to deportation. "It is counsel's responsibility, and not the court's, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral." People v. Correa, 485 N.E.2d 307, 310 (Ill. 1985). Under Illinois law, if a defendant enters a plea of guilty in reasonable reliance upon the erroneous advice of counsel that the defendant's plea would have no collateral deportation consequence, reliance on this misleading advice can render the defendant's plea involuntary. See People v. Correa, 485 N.E.2d 307, 309-12 (Ill. 1985); see also People v. Luna, 570 N.E.2d 404, 406-07 (Ill. App. Ct. 1991) (holding that post-conviction petition, which alleged that counsel failed to advise alien that a felony conviction could result in deportation, was sufficient to state a claim for ineffective assistance of counsel).

The Illinois state court judge responded to Sandoval's post-conviction motion on November 30, 1992, by entering a modified order of twenty-four months of first offender probation, pursuant to Chapter 56-1/2, section 710 of the Illinois Revised Statutes.² Ill. Rev. Stat. ch. 56 1/2, § 710 (1991), now codified as 720 Ill. Comp. Stat. Ann. 550/10 (West Supp. 2000). A court may only impose probation under section 710 if the individual is a first time offender who has pleaded guilty to or has been found guilty of the misdemeanor offenses of possession of marijuana under section 704(a), possession of not more than 2.5 grams of marijuana; section 704(b), possession of more than 2.5 grams but less than ten grams of marijuana; or section 704(c), possession of more than ten grams but not more than thirty grams of marijuana. The section 710 probation given to Sandoval is not available to defendants convicted under 704(d)--the felony offense of possession of greater than thirty but less than 500 grams of marijuana--the offense for which Sandoval was originally convicted.

After the November 30th order sentencing him to section 710 probation, Sandoval's deportation proceeding resumed. The Immigration Judge acknowledged that Sandoval would not be deportable if his conviction was for possession of thirty grams or less of marijuana, but he found that Sandoval bore the burden of proving this factual circumstance. Therefore, the judge was of the opinion that, because Sandoval had provided no reason to believe that the charging information referenced in the original statement of conviction was not accurate, Sandoval had been convicted of possession of more than thirty grams. The Immigration Judge also found that Sandoval's sentence to first offender probation was not the state counterpart of the Federal First Offender Act, and declined Sandoval relief under that statute. See 18 U.S.C. sec. 3607. Further, he expressed his view that the Illinois state court judge had modified Sandoval's sentence solely to avoid the consequences of the immigration law, and that, even if the modification was the state counterpart of the Federal First Offender Act, it was not effective for purposes of federal immigration law.

On appeal to the Board of Immigration Appeals ("the Board"), Sandoval challenged each of these conclusions. First, he argued that first offender probation under section 710 is not a conviction for immigration purposes. Second, Sandoval asserted that first offender probation is comparable to a disposition under the Federal First Offender Act. Third, he contended that the modification order of the Illinois court was not ineffective, under Board precedent. Finally, he argued that the Illinois court had vacated his earlier conviction under 704(d), and entered a new conviction under 704(a), (b), or (c); thus, since he had to have been convicted of possessing thirty grams or less of marijuana, he was not deportable as charged in the order to show cause. See 8 U.S.C. sec. 1251(a)(2)(B)(i) (originally enacted as Immigration and Nationality Act (INA), ch. 477, sec. 241(a)(2)(B)(i), 66 Stat. 163) (current version at 8 U.S.C. sec. 1227(a)(2)(B)(i)).³ The Board dismissed Sandoval's appeal through a per curiam opinion issued in July 1999, rejecting his first two arguments. It determined that the enactment of a federal statute defining "conviction" for immigration purposes precluded the availability of federal first offender treatment.⁴ See 8 U.S.C. sec. 1101(a)(48)(A). The opinion did not address Sandoval's assertion that he was not deportable because he was convicted of possession of thirty grams or less of marijuana.

In this appeal, Sandoval alleges that the INS did not carry its burden of proving deportability, and that he does not have a conviction that renders him deportable under section 241(a)(2)(B)(i) of the INA. See 8 U.S.C. sec. 1251(a)(2) (B)(i) (current version at 8 U.S.C. sec. 1227(a)(2)(B)(i)).

I. Analysis

A. Jurisdiction

Under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), when a final order of deportation is entered "there shall be no appeal permitted in the case of an alien who is . . . deportable by reason of having committed a [controlled substance] offense covered in . . . the Immigration and Nationality Act." IIRIRA, sec. 309(c)(4)(G), Pub. L. No. 104-208, 110 Stat. 3009-625 (Sept. 30, 1996), set out at 8 U.S.C. sec. 1101, Historical and Statutory Notes. Notwithstanding this restriction, courts do have jurisdiction to review whether the alien was convicted of a criminal offense that justifies deportation. See Wedderburn v. INS, 215 F.3d 795, 797 (7th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3409 (U.S. Nov. 29, 2000) (No. 00-875); see also Jideonwo v. INS, 224 F.3d 692, 696 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999). This limited review enables "judicial correction of bizarre miscarriages of justice." LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998). Therefore, we must determine whether Sandoval was convicted of a controlled substance offense that would justify deportation under the INA.

B. Deportability Under Section 241

The immigration law in effect at the time the INS instituted deportation proceedings stated: "Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . , other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable." 8 U.S.C. sec. 1251(a)(2)(B)(i) (current version at 8 U.S.C. sec. 1227(a)(2)(B)(i)). "The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court . . . ." 8 U.S.C. sec. 1101(a)(48)(A). If "adjudication of guilt has been withheld," then an alien is considered convicted "where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed." 8 U.S.C. sec. 1101(a)(48)(A)(i), (ii).

Sandoval's original conviction for possession of more than thirty grams would have rendered him deportable under section 241(a)(2)(B)(i) of the INA. His modified sentence, however, would only be appropriate if the judge had vacated the original conviction and entered a new conviction for possession of thirty grams or less of marijuana. Lack of a court order vacating the original conviction has left the parties disputing the effect of the modified sentence. Sandoval argues that it was a legal modification under Illinois law, and that the modification has to mean that he was convicted of possession of thirty grams or less of marijuana, which is not a conviction for immigration purposes. The INS argues that the conviction under 704(d) remains a conviction for immigration purposes and that there is substantial evidence to support the finding that Sandoval was convicted of possession of more than thirty grams. The insufficiency of the state court record is,...