Petition for review of final order of deportation entered by the Board of Immigration Appeals, finding petitioner deportable under 8 U.S.C. § 1251(a)(11) despite the fact that his state conviction for possession of marijuana was accompanied by a certificate of relief from disabilities. Order set aside.
Before: LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
Pursuant to 8 U.S.C.§ 1105(a), 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.*fn1 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).*fn2 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.*fn3 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.*fn4
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.*fn5 We think, however, that a less formalistic approach is appropriate*fn6 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).*fn7 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.*fn8
We realize that three other Circuits have ruled to the contrary. Kolios v. INS, 532 F.2d 786 (1st Cir. 1976) (2-1 decision), petition for cert. denied, 429 U.S. 884, 97 S. Ct. 234, 50 L. Ed. 2d 165 (1976); 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 purposes... [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 CruzMartinez 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 ...