Interim Decision #2351
MATTER OF ROBINSON
In Deportation Proceedings
A-11785088
On Appeal From the Immigration Judge's Order; '
Affirmed by Board March 5, 1975
Respondent pleaded guilty to violating sections 11501 and 11500.5 of the Health and
Safety Code of California, relating to the unlawful possession and sale of heroin. This
guilty plea is a conviction within the meaning of section 241(a)(11) of the Immigration
and Nationality Act, and renders respondent deportable. This is so notwithstanding
that action in the criminal proceeding was superseded prior to rendering of the final
judgment in order that proceedings could be commenced against respondent under the
California Involuntary Narcotic Commitment Statute (Sec. 3051, California Welfare
and Institutions Code).
CHARGE:
Order: Act of 1952—Section 241(a)(11) (8 U.S.C. 1251(a)(11)}—Convicted of a violation
of law relating to narcotics.
ON BEHALF OF RESPONDENT: Arthur E. Lester, Esquire
4075 Main Street
Riverside, California 92501
BEFORE THE IMMIGRATION JUDGE
ORAL DECISION OF THE IMMIGRATION JUDGE
This matter was remanded by the Board of Immigration Appeals on
October 5, 1973 to afford the parties an opportunity to include in the
record the Order of Civil 'Conunitment to a narcotics rehabilitation
center and to bring out what the present status of the respondent's case
is under the California Code. Respondent had argued that although she
has entered a plea of guilty to two counts of willfully and unlawfully
selling, furnishing and giving away a narcotic, to wit, heroin, in violation of Section 11501 of the Health and Safety Code of California and one
count of violation of Section 11500.5 of the Health and Safety Code
(possession for sale, a narcotic, to wit, heroin), she was not convicted for
immigration purposes since her criminal case was suspended by the
Trial Judge and proceedings were commenced under the California
Involuntary Narcotic Commitment Statute, California Welfare and Institutions Code, Section 305L Respondent argued that because of the
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Court's action in ordering her commitment under the California Welfare
Institutions Code, farther criminal action in her ease was suspended and
she was not in the position to file an appeal from the conviction since
there will be no judgment to appeal from until she is returned to the
criminal Courts for final sentencing. The respondent's Counsel cited
Verdugo v. Nelson, 310 F. Supp. 377 (1969) in support of his position.
In Verdugo, the petitioner was convicted and after the conviction the
criminal matter was suspended for civil commitment under the California Involuntary Narcotic Commitment Statute. As pointed out by Judge
Greenwald in his previous decision, a plea of guilty is a conviction within
the meaning of Section 241(a)(11) of the Immigration and Nationality
Act. In the interest of the uniform application of the Federal Statutes,
the meaning of the word convicted is a Federal question and requires a
uniform application. Wills v. I.N.S., (C.A. 7,)
447 F.2d 529. At times
the word "convicted" has various meanings and that "sometimes the
exhaustion or waiver of appeal rights has been found necessary to the
existence of a conviction," supra. in considering whether there has been a
final conviction under California Health and Safety Code 11530 of an alien
who was committed under California Welfare and Institutions Code 3051,
the United States Court of Appeals sustained the Board of Immigration
Appeals upholding a finding of deportability. Dunn Marin vs. District
-
Director, 426 F.2d 894, (C.A. 9, 1970). The same Circuit in GruzMartinez v. Immigration and Naturalization Service
404 F.2d 1198,
Gent. denied.
894 U.S. 955, made the following statement,
"deportation is a function of Federal and not state law. In the context of a narcotics
conviction, deportation is a punishment independent from any that may or may not be
imposed by the State. While it is true that the same event, the state conviction, triggers
both sets of consequences; it would be anomalous for federal action based on a State
conviction to be controlled by how the State chooses to subsequently treat the event. It
is the fact of State conviction, not the manner of State punishment for that conviction,
that is crucial".
The conviction of the respondent occurred when she entered her plea
of guilty to three counts of violating the narcotic laws of California. I am
satisfied that deportability has been established by clear, convincing
and unequivocal evidence.
ORDER: IT IS ORDERED that the respondent be deported from the
United States to the Netherlands on the charge contained in the order
to show cause.
BEFORE THE BOARD
(March 5, 1975)
This is an appeal from an order of an immigration judge finding the
respondent deportable on the above charge and directing her deportation to the Netherlands. The appeal will be dismissed.
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Interim Decision #2351
Our review of the entire record satisfies us that the decision of the
immigration judge correctly sets forth the facts and properly applies the
pertinent legal principles. We concur in his conclusion that DunnMartin v. District Director, 426 F.2d 894 (C.A. 9, 1970) is dispositive of
the issue which the respondent presents on appeal, and requires a
finding that her conviction is final with regard to deportability under
section 241(a)(11) of the Immigration and Nationality Act. We find Will
v. INS,
447 F.2d 529 (C.A. 7, 1971), cited by counsel in support of this
appeal, to be distinguishable.
Accordingly, we conclude that the decision of the immigration judge
contained no error , and it will be affirmed. The following order will
therefore be entered.
ORDER: The appeal is dismissed.
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