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Will v. Immigration and Naturalization Service

August 25, 1971


Pell and Stevens, Circuit Judges, and Morgan, District Judge.*fn*

Author: Pell

PELL, Circuit Judge.

This is a petition for review of an order of deportation. Petitioner Will was born on August 30, 1945, in Germany and is a citizen thereof. He entered the United States on October 4, 1956, as a permanent resident alien. His parents are permanent resident aliens and his wife is a native born United States citizen.

On October 3, 1968, Will was ordered to show cause why he should not be deported from the United States pursuant to Section 241(a) (11) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(a) (11),*fn1 in that he had been convicted on a plea of guilty of the illegal possession of marijuana. In order to allow Will an opportunity to pursue review actions then underway in the state courts, the deportation hearing was twice postponed. On March 25, 1969, Will appeared with counsel before a Special Inquiry Officer. His conviction on a plea of guilty in a Cook County, Illinois, court on August 23, 1968, of the offense of feloniously having marijuana in his possession in violation of Chapter 38, Section 22-3 of the Illinois Revised Statutes, was admitted. A certified copy of the conviction record was entered into evidence without objection. Will, however, contended that the conviction was not final because post-trial motions, which could result in setting aside the conviction, were still pending. These motions were denied by the Circuit Court of Cook County on July 28, 1969, and are pending on appeal to the Appellate Court of Illinois.

On September 19, 1969, a Special Inquiry Officer found Will deportable as charged. The Board of Immigration Appeals dismissed Will's appeal on April 30, 1970, over his contention that his narcotics conviction was not final and therefore could not at that time provide a basis for an order of deportation under the Act. The Board in dismissing the appeal noted that petitioner's appropriate remedy was to apply to the district director for such stay as necessary while obtaining appellate review of the criminal matter, which, if concluded in his favor, could provide a basis to reopen the deportation proceedings.

As a matter of fact, the Government in its brief stated that although there might be in some cases aggravated circumstances under which a stay of deportation would not be granted, in view of the facts of this particular case, Will would upon application with the district director be permitted to remain in the United States until disposition of his appeal pending in the Appellate Court of Illinois. This assertion, of course, was made upon the assumption that Will would in good faith prosecute his appeal in a timely manner.

The term "convicted" has been given various meanings by state courts depending upon the context. At times it has been held to mean no more than the entry of a plea or verdict of guilty; at other times, imposition of sentence and entrance of judgment has been required. Sometimes the exhaustion or waiver of appeal rights has been found necessary to the existence of a "conviction." See Annotation, What amounts to conviction or satisfies requirement as to showing of conviction, within statute making conviction a ground for refusing to grant or for canceling license or special privilege. 113 A.L.R. 1179.

We must, however, agree with other circuits that Congress intended the term "convicted" to be given meaning in light of federal law and policies rather than on the basis of "all the peculiarities of the laws of the various states." Garcia-Gonzales v. I. N. S., 344 F.2d 804, 808-809 (9th Cir. 1965), cert. denied, 382 U.S. 840, 86 S. Ct. 88, 15 L. Ed. 2d 81. "In the interest of a uniform application of the federal statute, the meaning of the word 'convicted' is a federal question to be determined upon due consideration the policy which § 241(a) (4) [substantially similar to § 241(a) (11)] of the Immigration and Nationality Act was designed to serve." Pino v. Nicolls, 215 F.2d 237, 243 (1st Cir. 1954), rev'd on other grounds, Pino v. Landon, 349 U.S. 901, 75 S. Ct. 576, 99 L. Ed. 1239 (1955). Cf. United States ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707, 708 (7th Cir. 1930), discussed in Pino, supra, 215 F.2d at 242-243.

The parties have not cited, nor have we found, anything of significance in the legislative history of the Act casting light on the precise concept Congress sought to embody by the use of the term "convicted" in Section 241(a) (11). However, it appears clear from the Supreme Court's decision in Pino, supra, 349 U.S. 901, 75 S. Ct. 576, 99 L. Ed. 1239, and from past administrative interpretation that the Section contemplates a conviction which has attained a substantial degree of finality.

In Pino, an alien had been found guilty in the Massachusetts district court of petty larceny. After waiving all of his appeal rights from that verdict, the alien was placed on probation for one year. Under a special Massachusetts procedure, upon the satisfactory completion of his probation, his sentence was revoked and his case was put "on file." The "on file" status meant that the case remained on the records of the court but no further action would normally be taken. However, it was theoretically possible that the case could again be called up and a sentence imposed, at which time the defendant-alien could appeal from the sentence so imposed and secure a trial de novo in the Massachusetts superior court.

The First Circuit began by rejecting Government arguments that the conviction was final for purposes of Section 241(a) (4) when the verdict of guilty was returned:

"A verdict or finding of guilty is usually followed by a motion for a new trial which * * * frequently results in the award of a new trial. So, too, appeals from conviction in the trial court often result in the award of a new trial. Judicial action on the motion for a new trial made immediately after verdict or finding of guilt, and judicial action in the normal routine appellate review provided by law, are part of the ordinary processes of reexamination, the outcome of which perhaps ought to be awaited before it can be said, with sufficient certainty and definiteness, that the state has 'convicted' the alien of crime." Pino, supra, 215 F.2d at 244.

Nevertheless, the court went on to hold that the "on file" status of Pino's conviction did not negate its finality since the Government was not required "to wait forever, until every remote possibility of ultimate upset of a conviction has been extinguished." Id.

On certiorari to the Supreme Court, the holding of the First Circuit was reversed by the following per curiam opinion, 349 U.S. 901, 75 ...

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