Interim Decision X2052
MATTER OF SIRHAN, ET AL.
In Deportation Proceedings
A-10711879
A-13598200
A-13578469
Decided by Board June 19, 1970
(1) In deportation proceedings a collateral attack may be made on a criminal court judgment on the question of jurisdiction.
(2) Where an alien was charged with deportability under section 241(a) (4)
of the Immigration and Nationality Act on the basis of a criminal conviction in California in 1966 for which he was sentenced for one year, with
sentence suspended; thereafter the court by order modified the sentence to
less than a year; and subsequently the conviction was expunged in 1969,
the deportation proceedings are terminated on the basis of the expungement (which eliminates the conviction as a deportation ground) rather
than as improvidently begun, since to a prospective employer or other person the latter may lend itself to the erroneous inference that proceedings
were terminated as a matter of administrative discretion, rather than because the alien is not deportable.
(3) Since authority lies with the superior court of California, through the
writ of coram nobis, to enter an order vacating an alien's prior conviction
in that court of violation of California marijuana laws and certifying the
case to the juvenile court, which accepted the alien as a ward, deportation
proceedings against the alien under section 241 (a) (11) of the Act are terminated since the conviction which formed the basis of deportability no
longer exists, having been vacated.
17H ARGES
Order: Act of 1952—Se'ction 241(a) (11) [8 U.S.C. 1251(a) (11) ]—Convicted of violation of marijuana law.
[SIRHAN, RODRIGUEZ-RODRIGUEZ]
Order:Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Convicted
of crime committed within five years after entry
and sentenced to a year or more.
[TALAVERA-ARREDONDO]
Af42
Interim Decision #2052
ON BEHALF OF RESPONDENTS:' ON BEHALF OF SERVICE:
SIRHAN: R. A. Vielhaber
David C. Marcus, Esquire Appellate Trial Attorney
215 West Fifth Street (Filed brief in each case
Los Angeles, California 90013 and was heard in oral argu-
(Brief filed in lieu of ao- ment in SIRHAN)
pearance at oral argument) Also, in SIRHAN, and
RODRIGUEZ-RODRIGUEZ : RODRIGUEZ-RODRIGUEZ :
Luis H. Garcia, Esquire William S. Howell
304 S. Broadway, Rm. 217 Trial Attorney
Los Angeles, California 90013 (Filed brief in each case)
TALAVERA-ARREDONDO: Also, in TALAVERA-ARREDONDO:
Agnes P. Matica, Representative Sam I. Feldman
International Institute of Trial Attorney
Los Angeles (Filed brief)
435 S. Boyle Avenue
Los Angeles, California 90033
These cases were tried separately before different special inquiry officers. Because the same issue is raised in each, we shall
consider them jointly. We shall approve the special inquiry
officer's termination of proceedings in each case.
These deportation cases are based on convictions which were
subsequently changed or vacated by the courts in which the convictions occurred. The Service contends that the courts had no jurisdiction to enter the subsequent orders.
If the subsequent orders are void, the original convictions can
serve as the basis for deportation orders except in Talavera's case
where the conviction has been expunged. If the subsequent orders
of the courts are to be given effect, the original convictions cannot serve as the basis for the deportation of Sirhan and Rodriguez.
In Sirhan and Rodriguez, we consider these questions : May we
determine whether the courts had jurisdiction to enter the subsequent orders? If so, did the courts have the jurisdiction to enter
them? If they had jurisdiction, are the aliens, nevertheless, deportable on the basis of the original convictions?
In Talavera, we consider these questions: Should the case be
terminated, as requested by the District Director, on the ground
that he improvidently started the case; or, as found by the special
inquiry officer and is asked by counsel, on the ground that the
subsequent order of the court eliminated the original order for
deportation purposes? Should we terminate on the ground that
the expungement eliminated the conviction for deportation purposes?
593
Interim Decision #2052
The individual cases will be briefly set forth. The special inquiry officer's orders state the facts fully.
Sirhan and Rodriguez were each separately convicted for violation of marijuana laws in a California superior court. Each was
charged in deportation proceedings with being deportable by reason of his conviction. In each case, the court then vacated the
conviction and certified the case to the juvenile court which accepted the alien as a ward. A person treated as a juvenile is not
considered a person convicted of crime. The special inquiry
officers held that the convictions on which the orders to show
cause were issued no longer existed. They therefore terminated
proceedings.
Talavera was convicted in a California superior court in April
1966 for issuing a check without sufficient funds. In May, he was
sentenced to imprisonment for one year. The sentence was suspended. Deportation proceedings were instituted. In October, the
court modified the sentence to make the term of imprisonment
less than a year. The conviction was expunged in May 1969. The
special inquiry officer terminated proceedings on the ground that
the modified order removed respondent from the class of deportable aliens since he was no longer an alien sentenced to a year or
more. The Service believes that the effect of the modified order is
a moot question because the expungement has removed the conviction as the basis for deportation; but it asks that the deportation proceedings be terminated on the ground that they were improvidently begun.
The State of California was represented at the sessions of
court when the changes in 'the court orders were made. The
change in Sirhan was made by a judge other than the one who
entered the original order. The changes in the other cases were
made by the same judges who entered the original orders. In Sirhan, a motion to vacate was made by counsel. In Rodriguez, the
court vacated the conviction on its own motion. In Talavera, the
modification was apparently made as a result of a motion or recommendation by Talavera's probation officer or the oral motion of
counsel.
HAS THE BOARD THE POWER TO ENTERTAIN A COLLATERAL
ATTACK ON THE JUDGEMENT OF A CRIMINAL COURT?
In determining whether an alien is deportable, the immigration
authorities cannot go behind a judicial record to determine the
guilt or innocence of the alien, U.S. ex rel. Mylius v. Uhl, 210 F.
860 (2 Cir., 1914). However, guilt or innocence is not involved
594
Interim Decision *2052
here. The question is the jurisdiction of the courts to change their
orders. This is a proper and necessary issue for consideration in
these proceedings, U.S. ex rel. Freislinger v. Smith, 41 F.2d 707
(7 Cir., 1930); Joseph v. Esperdy,
267 F. Supp. 492 (S.D.N.Y.,
1966) ; Doss v. State of North Carolina.,
252 F. Supp. 298 (M.D.,
1966); Vasquez v. Vasquez,
240 P.2d 319 (Ct. App. Cal., 1952);
Matter of O'Sullivan,
10 I. & N. Dec. 320 (BIA, 1963) ; Matter of
H-
9 I. & N. Dec. 460 (BIA, 1961); Matter of C—,
6 I. & N. Dec.
366 (BIA, 1954). See !RMatter of J—,
6 I. & N. Dec. 562 (AG,
1956). But see Taran v. United States,
266 F.2d 561 (8 Cir.,
1959). The party attacking the judgment must establish the lack
of jurisdiction by convincing evidence, Pen-Ken Gas & Oil Corp.
v. Warfield Natural Gas Co.,
137 F.2d 871 (6 Cir., 1943), cert. deDied
320 U.S. 800; Choctaw & Chickasaw Nations v. City of
Atoka, Okl.,
207 F.2d 763 (10 Cir., 1953) ; Delanoy v. Delenoy,
13
P.2d 719 (Cal., 1932).
In Sirhan and Rodriguez, we shall consider the issue raised by
the Service concerning the courts' power to change their orders.
We shall not make the inquiry in Talavera because the expungement there moots the issue as to the validity of the court's modification. It is settled law that expungement of a non-drug conviction eliminates it as a ground for deportation. Use of the
expungement is preferable to terminating the case as improvidently begun—an action, which, to a prospective employer or
other person, may imply that deportation proceedings were terminated because the District Director exercised a discretionary
power rather than because Talavera is not deportable. Since no
hardship to Talavera is shown because we rely on the expungement rather than on the modified order, we see no need to explore
the ramifications of the court's action in his case. See Matter of
Vizcarra-Delgadillo, Interim Decision No. 1917 (BIA, 1968).
POWER OF THE COURT IN CALIFORNIA TO MODIFY A
CRIMINAL JUDGMENT
California criminal courts have statutory and inherent powers
to modify orders. We will first consider the statutory power. Section 1203.3 of the Penal Code is cited by the special inquiry
officers as authority for the courts' modifications. The provisions
of this section follow:
§1203.3. [Revocation, modification or termination of probation by court:
Notice to probation officer: Discharge of defendant.] The court shall have
authority at any time during the term of probation to revoke, modify, or
change its order of suspension of imposition or execution of sentence. It may
at any time when the ends of justice will be subserved thereby, and when
595
Interim Decision #2052
the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation and discharge the person so held,
but no such order shall be made without written notice first given by the
court or the clerk thereof to the proper probation officer of the intention to
revoke, modify, or change its order, and in all cases, if the court has not
seen fit to revoke the order of probation and impose sentence or pronounce
judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these
sections.
We find that section 1203.3 continues the jurisdiction of the
court over the convicted person only so far as conditions of probation and matter relating to probation are concerned. The section does not authorize vacating a conviction. These are our reasons: The section is found among provisions relating to
probation. The heading of the section relates to changes of probation. All cases cited on the section concern judgments which involve matters relating to probation. The case of In re Scarbor-
)ugh, 173 P.2d 825 (Ct. App. Cal., 1946), held that under section
[203.3, a valid condition of probation must be present to justify a
:hange of judgment. It would seem, therefore, that when probaionary matters are not present, the section cannot be relied upon
s authority for the change of a judgment. Finally, the changes
f judgment expressly authorized by the section—changes involvng imposition of execution of sentence—would hardly authorize
acating a conviction.
Since section 1203.3 relates to changes involving matters of
robation, we must determine whether the change in Sirhan or
'odriguez involved a matter of probation. In both cases there
- ere conditions of probation relating to service of time and obeence to the law. In addition, in Sirhan there were conditions
[ncerning use of narcotics, associations, employment and resiglee. It is clear that in neither case did the court order vacating
e conviction relate to a matter of probation. We conclude that
e court could not have found authority for its action in section
:03.3.
We now consider the court's inherent powers to modify an
der. There are two kinds, one short-lived, the other continuing.
le short-lived one expires when the original order is entered in
e minutes or when legal restraint has. been imposed upon the
fendant, People v. Thomas, 342 P.2d 889, 893 (Cal., 1959). Sirn was convicted in October 1966 and sentenced in December
66. The court orders were entered in the minutes in the same
[nths they were issued. The court vacated the conviction and
•ified the case to the juvenile court in May 1967. Rodriguez
596
Interim Decision #2052
was convicted and sentenced on June 22, 1967. The order was entered in the minutes in the same month. The court vacated the
conviction and certified the case to the juvenile court in February
1968. Since the modifying orders in both cases came after the
original judgments were entered in the minutes, it would follow
that the courts could not look to the short-lived power as authority
for the modifications. 1
The continuing inherent power to modify an order is exercised
through the writ of coram nobis. The writ lies to vacate or correct a judgment where no other remedy exists. It is granted when
a petitioner shows that, through no fault of his, a fact was not
presented at the trial, that presentation of the fact would have
prevented the rendition of the judgment, that the fact does not go
to the merits of the issues tried, and that he could not, in the exercise of due diligence, have discovered the fact at any time substantially earlier than the time of his motion for the writ, People
v. Shipman, 397 P.2d 933,
42 Cal. Rptr. 1 (1965). The petition
for the writ need not take any particular form. See People v.
Hamlin,
152 Cal. App. 2d 112,
312 P.2d 306 (Ct. App. 1957). It
may be made orally, People v. Curtis,
104 Cal. App. 2d 219,
230, P. 2d 877 (1951); People v. Sandoval,
254 P. 893 (Cal.,
1927). Contra, In Re Dyer,
85 Cal. App. 2d 394, 402,
193 P. 2d
69, 74 (1948).
We believe that it will be more fruitful to discuss the issues in
terms of a specific court case rather than in terms of general
rules. One Armendariz was convicted in May 1964 for a narcotic
violation. The trial judge wanted to commit him to a rehabilitation program, but erroneously concluded that he could not ask the
district attorney to declare the case an unusual one—a declaration which might have made Armendariz eligible for rehabilitation. The court sentenced Armendariz to imprisonment. He was
apparently committed. In March 1966, he filed a petition for a
writ of coram nobis in the trial court. The court denied the writ,
apparently in part, because it was mistaken on the same legal
point. On appeal, the trial court was reversed and given another
In several unreported decisions, we had raised a question as to whether
the limitation on modifications under the short-lived power might apply only
to modifications that increased punishment. We now conclude that the limitation applies even if the modification decreases punishment. Thus, where
after the entry of an order in the minutes, a court issued a corrected judgment beneficial to defendant in that it changed a term of imprisonment from
a consecutive to a concurrent one, the corrected judgment was set aside because the issuance after the entry of the original sentence in the minutes
was without authority, In re Wimbs, 921 P.2d 70,
55 Cal. Rptr. 222 (1966).
597
Interim Decision #2052
opportunity to consider the advisability of starting a proceeding
to commit Armendariz to the rehabilitation program, People v.
Armendariz, 60 Cal. Rptr. 796 (Ct. App., 1967). See also In re
Rascon,
413 P.2d 678,
50 Cal. Rptr. 790 (1966).
While Armendariz is not on all fours with the cases before us,
we see certain similarities. In Armendariz, the court acted without knowledge that it could have entered an order which would
have saved Armendariz from imprisonment—a punishment the
court did not want to inflict. The appellate court held that the
trial court had the power to correct this omission. In the instant
cases, the courses acted without knowledge that they could have
entered an order which would have saved the respondents from
deportation—a disability stemming from the punishment inflicted
and not intended by the courts. It appears to us that the power to
correct this omission existed. See Joseph v. Esperdy, supra. The
existence of a case such as Armendariz and the Service failure to
present precedents which affirmatively establish that the courts
here were without authority require us to conclude that the Service failed to carry its burden in the collateral attack on the modifying orders in Sirhan and Rodriguez.
One further comment is required before we leave this subject.
In Talavera, the Service presented a letter dated December 2,
1966 from the judge who modified his original order. He stated
that he would not have imposed the original sentence had he
known it might have resulted in an order of deportation, that
-flaking respondent subject to deportation was a penalty greater
;Ilan was intended, that the modification was an attempt to alleviate the conditions of the original sentence, and that he now beieves that he had no authority to enter the modification. The
;ervice relies upon this letter as support for its position in the
hree cases before us. The letter is entitled to respectful consider-
,tion, but we do not regard it as substantial evidence that the su-
,erior courts in Sirhan and Rodriguez lacked jurisdiction to vaate their orders. Letters to similar effect were not presented in
hese cases which are under the administrative jurisdiction of the
ame District Director whosubmitted the letter in Talavera. The
otter cites no authority. The court has not vacated the order in
uestion.
Because our concern is with the convictions which were the
asis for the issuance of the orders to show cause, we need not
iscuss statutory provisions relating to acquisition of jurisdiction
y the juvenile court.
598
Interim Decision #2052
EFFECT OF THE ORIGINAL CONVICTIONS UNDER THE
IMMIGRATION LAWS
We come now to the third question in Sirhan and Rodriguez.
Did the subsequent orders of the courts remove the aliens' liability to deportation? The Service contends that because the orders
were allegedly made for this very purpose, to give them such an
interpretation would circumvent federal laws controlling the deportation of aliens. A similar contention was vigorously advanced
by the Service in Matter of O'Sullivan, supra. It was rejected by
the Board. We find no need to add to the discussion there. See Joseph v. Esperdy, supra. We do point out that while the inference
can be drawn that the courts here were motivated by a desire to
remove the aliens from liability to deportation, it is possible that
other considerations entered into their deliberations.
Pointing to the fact that a conviction (the finding of guilt) exists independently of a sentence (the imposition of punishment),
the Service representative contends that the vacating of a sentence has no effect on the existence of the conviction and permits
the conviction, where it is for a narcotic offense, to support an
order of deportation under section 241(a) (11) of the Act. It is
sufficient answer to say that' in Sirhan and Rodriguez, where
narcotic violations occurred, the courts vacated the convictions;
no convictions exist.
The appellate trial attorney contends that the courts' actions in
vacating the convictions in Sirhan and Rodriguez are unconstitutional because the actions subject the aliens to double jeopardy.
The contention must be dismissed. An accused in a criminal case
who is instrumental in having a conviction vacated may be tried
again on the same, or another indictment, for the very offense of
which he was convicted without violaing the provision against
double jeopardy, People v. Stratton, 28 P.2d 695 (Ct. App., Cal.,
1934). This is so even if the accused has served time under his
sentence, U.S. ex rel. Jones v. Nash,
264 F.2d 610 (8 Cir., 1959),
cert. denied
360 U.S. 936. Moreover, since the proceedings were
remanded to the juvenile courts, which are not criminal courts,
the doctrine of double jeopardy does not apply, People v. Silverstein,
262 P.2d 656 (Cal., 1953).
Cases dealing with expungements cited by the Service in Sirhan and Rodriguez; e.g., Garcia-Gonzales v. INS,
344 F.2d 804 (9
Cir., 1965), cert. denied
382 U.S. 840, are inapposite. Expungement is a State rehabilitation process which removes most of the
disabilities imposed by the State on a convicted person. In Sirhan
and Rodriguez, no convictions exist.
599
Interim Decision #2052
Since neither a pardon nor recommendations against deportation are involved in the instant cases, we shall not discuss the
cases concerning these matters which are cited by the Service.
Other cases cited by the Service; e.g., Guiterrez v. INS, 323
F.2d 593 (9 Cir., 1963), cert. denied
377 U.S. 910 (dictum) contain statements that a federal standard exists as to what constitutes a conviction. We agree with this. We have attempted to define such a standard, Matter of 0—,
7 I. & N. Dec. 539 (BIA,
1957). There is, however, no authority holding that a conviction
exists where there is no finding by a criminal court that a person
is guilty of a crime. On the contrary, when a court acts within its
jurisdiction and vacates an original judgment of conviction, its
action must be respected, Sakow v. INS,
314 F.2d 34 (3 Cir.,
1963) ; United States v. Shapiro,
222 F.2d 836 (7 Cir., 1955), interpreted in Matter of S—,
9 I. & N. Dec. 678 (BIA, 1962). See
Pino v. Landon,
349 U.S. 901 (1955).
ORDERS: (1) No change is made in the special inquiry
officers' orders in Sirhan and Rodriguez; (2) No change is made
in the special inquiry officer's order in Talavera. The basis for
termination of deportation proceedings is the fact that the conviction on which proceedings were instituted was expunged.
600
