Interim Decision #2291
MATTER OF RODRIGUEZ
In Deportation Proceedings
A-10192395
Decided by Board May 31, 1974
Conviction of unlawful possession of an unregistered sawed-off shotgun in
violation of 26 U.S.C. 5841 and 5851, upon a plea of nobo contendere, constitutes
a ground of deporation under section 241(a)(14) of the Immigration and
Nationality Act.
CHARGE:
Order: Act of 1952—Section 241(a)(14) [8 U.S.C. 1251(a)(14)]—Convicted after
entry of possessing or carrying in violation of any law
a weapon commonly called a sawed -off shotgun_
ON BEHALF OF RESPONDENT: Eric Welch, Esquire
Garland & Garland
1022 The Candler Building
Atlanta, Georgia 30303
The immigration judge found the respondent deportable on the
above-stated charge and certified the case to the Board for final
decision. This matter is also before us on respondent's appeal from
the immigration judge's order. No change will be made in his
order.
The respondent is a 40-year-old divorced male alien, a native and
citizen of Cuba, who entered the United States on March 16, 1960
as a Cuban refugee under the parole provisions of section 212(dX5)
of the Immigration and Nationality Act. His status was adjusted
to that of a permanent resident effective October 25, 1964, pursuant to the provisions of the Act of November 2, 1966. On May 18,
1967, he was convicted in the United States District Court, Northern District of Georgia, at Atlanta, Georgia, after entering a plea
of nolo contendere, of the offense of possessing a firearm which
had not been registered as required by 26 U.S.C. 5841, in violation
of 26 U.S.C. 585L He was sentenced to imprisonment for a period
of one day, execution of the sentence suspended and probation for
the period of one day.
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Interim Decision #2291
The indictment under which respondent was convicted charged:
That, on or about December 10, 1966, in the Northern District of Georgia,
CESAR AGUSTO RODRIGUEZ-BARRETO, defendant herein, wilfully and
knowingly did possess a firearm, that is, a single barrel 12 guage Stevens
shotgun, Model 94C, having a barrel length of 11 3A inches, which had not
been registered with the Secretary of Treasury or his delegate, as required by
Section 5841, Title 26, United States Code, in violation of 26 U.S.C. 5851.
On the date of the alleged offense, 26 U.S.C. 5841 read in
pertinent part as follows:
Evei-y person possessing a firearm shall register, with the Secretary or his
delegate, the number or other mark identifying such firearm, together with
his name, address, place where such firearm is usually kept, and place of
business or employment, and, if such person is other than a natural person,
the name and home address of an executive officer thereof.
On the date of the offense alleged against the respondent, 26
U.S.C. 5851 read in pertinent part as follows:
It shall be unlawful for any person ... to possess any firearm which has not
been registered as required by Section 5841. Whenever on trial for violation of
this section the defendant is shown to hav,e or to have had possession of such
firearm, such possession shall be deemed sufficient evidence to authorize
conviction, unless the defendant explains such possession to the satisfaction
of the jury.
Section 241(a)(14) of the Act states, in pertinent part, the
following:
Any alien in the United States ... shall be deported who— at any time after
entry, shall have been convicted of possessing ... in violation of any law any
weapon which shoots or is designed to shoot automatically or semiautomatically more than one shot without manual reloading, by a single function of
the trigger, or a weapon commonly called a sawed-off shotgun.
At issue is the question of whether the respondent is deportable
as an alien convicted of possessing in violation of law a weapon
commonly called a sawed-off shotgun within the provisions of
section 241(a)(14) of the Act. Counsel for respondent argues (1) that
a determination of deportability is not proper where the respondent's conviction was for use of a company-furnished weapon
without personal knowledge that a law was being violated; (2) that
a conviction on the basis of a plea of nolo contendere does not rise
to the level of a final conviction; and (3) that a determination of
deportability is not proper where the respondent's conviction was
on the basis of a plea of nolo contendere without the court advising
him as to the possibility of deportation. We find no merit to
counsel's contentions.
Congress redefined the term "firearm" in 26 U.S.C. 5848(1) on
June 1, 1960, P.L. 86-478, section 3, to include a shotgun or rifle
having a barrel or barrels of less than 18 inches in length, or a rifle
having a barrel or barrels of less than 16 inches in length. The
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legislative history discloses that the purpose of this was "to
include within the category of weapons subject to these taxing and
control provisions the sawed-off shotguns and sawed-off rifles
likely to be used by the gangster element." See U.S. Code Congressional and Administrative News, p. 2113 (1960). The court in
United States v. Coots, 196 F. Supp. 775 (D.C. Tenn. 1961) stated:
"In the definition of illegal weapons (26 U.S.C.A. 5848) both sawed-off shotguns and sawed-off rifles are described as weapons to
which the Act would apply." Since the Overall length of the barrel
of the shotgun described in the grand jury indictment was 17 -3/4
inches, this firearm was a weapon commonly called a sawed-off
shotgun.
The respondent's conviction was for possession of a firearm of
the type described in section 241(aX14) of the Act. We cannot
consider counsel's assertion that the shotgun was the property of
the respondent's employer and that the respondent was not aware
that possession might be a violation of the law. A conviction may
not be attacked in a deportation proceeding, since there is no
authority to go behind the record of conviction to determine the
respondent's quilt or innocence, Cruz-Sanchez v. INS,
438 F.2d
1087 (C.A. 7, 1971), Rassano v. INS,
377 F.2d 971 (C.A. 7, 1966).
For the purposes of deportation, a guilty judgment following a
nolo contenders plea constitutes a conviction where the fact of the
conviction is itself the only thing that is relevant, Buds -Rubio v.
INS,
380 F.2d 29 (C.A. 9, 1967), cert. denied
389 U.S. 944 (1967);
Tseung Chu v. Cornell
247 F.2d 929 (C.A. 9, 1957), cert. denied
355
U.S. 892 (1957). Section 241(a)(14) of the Act does not require that a
conviction be coupled with a sentence before liability to deportation attaches. Accordingly, since under section 241(a)(14) of the Aet
the fact of conviction is the only thing that is relevant, the
judgment of conviction could be used against the respondent in
these deportation proceedings.
The court does not accept a plea of guilty or of nob contenders
unless it is satisifed that the defendant understands the direct
consequences of the plea, but the court is not required to consider
the consequence of a finding of guilty on the ancillary matter of
deportation, United States v. Sambro,
454 F.2d 918 (D.C. Cir. 1971).
There is no duty upon the court to advise each defendant of the
possibility of deportation before accepting a plea, United States v.
Santelises,
476 F.2d 787 (C.A. 2, 1973); U.S. ex rel. Durante v.
Holton,
228 F.2d 827 (CA. 7, 1956), cert. denied
351 U.S. 963 (1956).
Our review of the facts and the applicable law satisfies us that
deportability was established by evidence which is clear, convinc-
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ing and unequivocal. The respondent has not applied for any
discretionary relief from deportation. Accordingly, we find no
reason to reverse the order of the immigration judge.
ORDER: No change is made in the immigration judge's order.
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