Shaheen Rehman v. Immigration and Naturalization Service , 544 F.2d 71 ( 1976 )

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)(ll) 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)(ll). 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)(ll) 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)(ll). 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)(ll) 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 offender! 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)(ll).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 Eolios 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.

1 . Rehman’s sentencing judge granted him the fullest relief possible under § 701, which reads:

1. A certificate of relief from disabilities may be granted as provided in this article to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein. Such certificate may be limited to one or more enumerated forfeitures, disabilities or bars, or may relieve the eligible offender of all forfeitures, disabilities and bars. Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.

2. Notwithstanding any other provision of law, a conviction of a crime or of an offense specified in a certificate of relief from disabilities shall not cause automatic forfeiture of any license, permit, employment or franchise, including the right to register for or vote at an election, or automatic forfeiture of any other right or privilege, held by the eligible offender and covered by the certificate. Nor shall such conviction be deemed to be a conviction within the meaning of any provision of law that imposes, by reason of a conviction, a bar to any employment, a disability to exercise any right or a disability to apply for or to receive any license, permit or other authority or privilege, covered by the certificate.

3. A certificate of relief from disabilities shall not, however, in any way prevent any judicial, administrative, licensing or other body, board or authority from relying upon the conviction specified therein as the basis for the exercise of its discretionary power to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or privilege.

The exception for the right to hold public office in paragraph 1 has no relevance in a drug case. Although in the past, some crimes of political corruption resulted in forfeiture of or permanent disqualification from public office, New York’s 1967 recodification of the penal code eliminated such sanctions. Compare N.Y. Penal Law of 1909, §§ 1832(1), 1839, 1854, 1875 (forfeitures) & §§ 1823, 1833, 1864, 1879(3) (permanent disqualifications) with N.Y. Penal Law arts. 60, 195, 200 (McKinney 1975). Consequently, the only disqualification provision still remaining is N.Y. Pub. Officers Law § 3(1) (McKinney Supp.1975), which prohibits office holding by selective service violators.

2 . See, e. g., In re Arroya, 50 A.D.2d 752, 376 N.Y.S.2d 158 (1975).

3 . See Governor’s Memorandum Approval of L.1966, c. 654 in McKinney’s 1966 Session Laws of New York at 3003: “It is an important step beyond the previous system of automatic, indirect sanctions following upon a conviction without regard to the merits of the individual involved.”

4 . In reaching a contrary conclusion our brother Mulligan relies on In re Sugarman, 51 A.D.2d 170, 380 N.Y.S.2d 12 (1976), in which a panel of the appellate division held that a certificate of relief from disabilities granted by a parole board at the end of several years imprisonment did not relieve the recipient from the automatic disbarment which follows under New York law upon a felony conviction. There are a number of reasons why Judge Mulligan’s reliance on that decision is misplaced.

First, it is central to the Sugarman opinion that the certificate there was granted by an administrative board rather than a court. Emphasizing the importance of a judiciary’s control over the regulation of its bar, the Sugar-man court concluded that the legislature could not have intended to delegate to a nonjudicial body the power to reinstate a previously disqualified lawyer. This reasoning is inapposite where, as here, the certificate has been issued by a judge.

Second, the certificate in Sugarman was not issued contemporaneously with the conviction. Thus, there was no argument to be made in that case that the granting of the certificate and the entering of the conviction were part and parcel of one adjudicative act.

Third, disbarment follows only after conviction of a felony. N.Y. Judiciary Law § 90, subd. 4 (McKinney 1968). Since commission of a felony is a far more serious blot on a person’s character than commission of a misdemeanor, the willingness of the New York legislature to have felony convictions trigger automatic collateral consequences does not imply that it desires the same for misdemeanor convictions.

Fourth, there is every reason for the legislature to conclude that automatic disbarment of felons is necessary to preserve public confidence in the bar and that this consideration overrides the need for clemency in individual cases. By contrast, in adopting 21 U.S.C. § 844 and 18 U.S.C. §§ 4209, 5021, discussed below, Congress has made clear that it does not believe young drug offenders need to be deported in every case. Thus, Congress has implied that the public interest in the deportation of narcotics criminals should not override the need for individualized clemency in cases like Rehman’s.

5 . “The granting of a certificate of relief from disabilities in no way eradicates or expunges the underlying conviction.” Da Grossa v. Goodman, 72 Misc.2d 806, 339 N.Y.S.2d 502, 505 (Sup.Ct.1972).

6 . Deportation statutes are to be strictly construed against the INS. Barber v. Gonzales, 347 U.S. 637, 642 (1954); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975).

7 . The INS also argues that because Rehman’s relief from disabilities was conditioned on his satisfactory completion of one year’s probation, the relief was not contemporaneous with his conviction and therefore cannot be deemed to have expunged the conviction for purposes of § 1251(a)(ll). However, since § 1251(a)(ll) tolerates federal expungements under 21 U.S.C. § 844 and 18 U.S.C. § 5021 which are themselves probational, we see no reason why the mere existence of a probationary period should be a bar to the expungement of a state conviction.

8 . Of course, by necessity this means that in some instances persons who have been treated identically by state courts can be treated differently by the INS. For example, a person over 26 years old who is convicted of a drug offense more serious than simple possession could never avoid deportation even though under New York law his sentencing judge would have discretion to grant him a certificate of relief from disabilities just like Rehman’s.