Interim Decision #3248
Interim Decision #3248
In re Patricio CHAIREZ-Castaneda, Respondent
File A41 311 303 - Aurora
Decided April 28, 1995
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A right to appeal such issues as whether a violation of probation has occurred or the sentence imposed upon entry of judgment was correct will not prevent a finding of a final conviction for immigration purposes under the third prong of the standard set forth in Matter of
Ozkok, 19 I&N Dec. 546 (BIA 1988), which requires that any further proceedings available
to an alien must relate to the issue of “guilt or innocence of the original charge.”
(2) After a breach of a condition of an order deferring judgment and sentence under Colorado
Revised Statutes § 16-7-403, no further proceedings are available to a defendant to contest
his guilt.
(3) Where the period during which the respondent’s judgment and sentence were deferred
under Colorado law had been completed, any right he may have had to appeal had lapsed
and could no longer prevent a finding that his conviction was final.
FOR RESPONDENT: Kenneth H. Stern, Esquire, Denver, Colorado
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, Board
Member; HOLMES, Alternate Board Member. Concurring Opinion: HEILMAN, Board
Member.
VACCA, Board Member:
In a decision dated March 14, 1990, the Immigration Judge found the
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act,
8 U.S.C. § 1251(a)(11) (1988),1 as an alien convicted of a
controlled substance violation, and ordered him deported from the United
States. The respondent has appealed from that decision. The appeal will be
dismissed. The request for oral argument is denied.
1 This section of the Act has been revised and redesignated as section 241(a)(2)(B)(i) of the
Act,
8 U.S.C. § 1251(a)(2)(B)(i) (Supp. V 1993), by section 602(a) of the Immigration Act of
1990,
Pub. L. No. 101-649, 104 Stat. 4978, 5080, but that amendment does not apply to
deportation proceedings for which notice has been provided to the alien before March 1, 1991.
See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.
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Interim Decision #3248
I. BACKGROUND
The respondent is a native and citizen of Mexico who entered the United
States in April 1989 as a lawful permanent resident. The record reflects that
on October 2, 1989, in the District Court, Moffat County, Colorado, the
respondent entered into a stipulation for deferred judgment and sentence,
pursuant to which he pled guilty to unlawful possession of a controlled substance, to wit: cocaine. The respondent was placed on probation for 2 years
of the 4-year period during which his sentence was deferred. He was also
ordered to pay a victim’s compensation fee and court costs, to submit to drug
testing and counseling, and to serve 60 days in jail.
At his deportation hearing the respondent argued that the standard for a
conviction set forth in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), was
improper for a variety of reasons and should not be applied in his case. The
Immigration Judge stated that he was bound by the precedent decisions of the
Board of Immigration Appeals and determined that the three-pronged Ozkok
test for a conviction had been met. The respondent further contended that he
did not have a final conviction for immigration purposes because under Colorado law a defendant who has been granted deferred judgment and sentencing retains the right to a direct appeal during the deferral period. The
Immigration Judge rejected this argument, finding that the appeal to which
the defendant was entitled was only for the purpose of reviewing the revocation of probation, not the question of the defendant’s guilt, as required by
Ozkok. Therefore the Immigration Judge concluded that the respondent’s
conviction was final and that he was deportable.
II. ISSUES PRESENTED
The issues presented in this appeal are: (1) will the Board recede from
Matter of Ozkok, supra, and (2) under the third prong of Ozkok, are further
proceedings regarding guilt or innocence available under Colorado’s
deferred judgment and sentence provisions, Colorado Revised Statutes
§ 16-7-403. For the reasons explained below, we conclude that Ozkok was
correctly decided and that further proceedings regarding guilt or innocence
are not available under Colorado law. We will therefore dismiss the appeal.
III. VALIDITY OF MATTER OF OZKOK
In Matter of Ozkok, supra, we revised the standard for determining
whether a final conviction exists for immigration purposes, addressing two
different procedural contexts in which a conviction can be found. First, we
held that a person is considered convicted whenever a court has adjudicated
him guilty or has entered a formal judgment of guilt. The second part of our
analysis, which involves a three-pronged test, is applied only when there has
been no judgment or adjudication of guilt by the court. Id. at 551-52; see also
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Interim Decision #3248
Wilson v. INS, 43 F.3d 211 (5th Cir. 1995). Thus, if adjudication of guilt has
been deferred or withheld, we then proceed to determine whether: (1) there
has been a finding or plea to establish guilt, (2) the court has imposed some
form of punishment, penalty, or restraint of liberty, and (3) further proceedings are available to contest guilt or innocence of the original charge before
judgment can be entered following a violation of the terms of the court’s
order.
Matter of Ozkok has received the approval of the judiciary in each circuit
where it has been considered. See Wilson v. INS, supra; White v. INS, 17 F.3d
475 (1st Cir. 1994); Yanez-Popp v. United States INS,
998 F.2d 231 (4th Cir.
1993); Molina v. INS,
981 F.2d 14 (1st Cir. 1992); Chong v. INS,
890 F.2d
284 (11th Cir. 1989). Furthermore, the courts of appeals have generally
agreed that a federal standard for conviction is appropriate in immigration
proceedings. See Paredes-Urrestarazu v. United States INS,
36 F.3d 801
(9th Cir. 1994); Yazdchi v. INS,
878 F.2d 166 (5th Cir.), cert. denied,
493
U.S. 978 (1989); Kolios v. INS,
532 F.2d 786 (1st Cir.), cert. denied,
429 U.S.
884 (1976); Aguilera-Enriquez v. INS,
516 F.2d 565 (6th Cir. 1975), cert.
denied,
423 U.S. 1050 (1976); Will v. INS,
447 F.2d 529 (7th Cir. 1971); cf.
Rehman v. INS,
544 F.2d 71 (2d Cir. 1976) (noting that construction of a term
in immigration statutes is an issue of federal law, while holding that state policies to relieve a convicted alien from mandatory disability of deportation
could be accorded the same respect as federal leniency policies without
undermining enforcement of federal deportation laws). See generally
Dickerson v. New Banner Institute, Inc.,
460 U.S. 103 (1983) (holding that
the determination whether a conviction exists for purposes of federal gun
control laws is a question of federal, not state, law, despite the fact that the
predicate offense and its punishment are defined by state law).2 Inasmuch as
the federal standard enunciated in Matter of Ozkok has been upheld as a valid
interpretation of the immigration laws and we continue to find it appropriate,
we decline to reconsider our decision in that case.
IV. “FURTHER PROCEEDINGS” UNDER MATTER OF
OZKOK
The respondent claims that he does not have a final conviction pursuant to
Matter of Ozkok, supra, because under Colorado law he has neither waived
nor exhausted his right to a direct appeal during the deferral period following
2 We acknowledge that Congress disagreed with the Supreme Court and amended the gun
control law to provide that the definition of conviction incorporates state law. However, in
Yanez-Popp v. United States INS, supra, the United States Court of Appeals for the Fourth
Circuit concluded that the principles of federalism stated in Dickerson v. New Banner Institute,
Inc., supra, remain applicable to immigration law. See also Wilson v. INS, supra (agreeing with
the Fourth Circuit’s analysis); Molina v. INS, supra, at 22 (noting that “federal gun control law
is not federal immigration law” in discussing the history of Dickerson and upholding the
application of the Ozkok standard for conviction).
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his guilty plea. He argues that the Immigration Judge erred in interpreting
Ozkok to mean that a right to direct appeal will defeat finality only if it relates
to the issue of guilt or innocence. Inasmuch as we agree with the Immigration
Judge’s conclusion regarding the meaning of the term “further proceedings”
under the third prong of the Ozkok test, we reject the respondent’s contention.
In Matter of Ozkok, supra, we stated that the third prong of the test for a final
conviction is met if the court can enter a judgment of guilt upon the defendant’s
violation of the conditions of the deferred adjudication, without the availability
of “further proceedings regarding the person’s guilt or innocence of the original charge.” Id. at 552. Cognizant of the fact that a conviction must be sufficiently final before it will support a deportation order, we explained our
reference to such further proceedings in a footnote, observing that a conviction
does not attain sufficient finality for immigration purposes until direct appellate review has been exhausted or waived. Id. at 552 n.7. It was thus our intent
that the third prong of the Ozkok standard would be met if an adjudication of
guilt could be entered following a violation of the court’s order, unless state
law provides the defendant a right to a hearing and/or a direct appeal on the
issue of “guilt or innocence of the original charge.” Therefore, a right to appeal
other issues, such as whether a violation of probation has occurred or whether
the sentence imposed upon entry of a judgment was correct, will not prevent a
finding of conviction for immigration purposes.
V. COLORADO LAW
Section 16-7-403 of the Colorado Revised Statutes, under which the
respondent’s judgment and sentence were deferred, contains no provision for
a right to an appeal on the issue of guilt.3 The respondent argues that under
3 The statute provides as follows:
(1) In any case in which the defendant has entered a plea of guilty, the court accepting
the plea has the power, with the written consent of the defendant and his attorney of
record and the district attorney, to continue the case for a period not to exceed four years
from the date of entry of a plea to a felony or two years from the date of entry of a plea to a
misdemeanor, or petty offense, or traffic offense for the purpose of entering judgment
and sentence upon such plea of guilty; except that such period may be extended for an
additional time up to one hundred eighty days if the failure to pay restitution is the sole
condition of supervision which has not been fulfilled, because of inability to pay, and the
defendant has shown a future ability to pay. During such time, the court may place the
defendant under the supervision of the probation department.
(2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence,
the district attorney, in the course of plea discussion as provided in sections 16-7-301 and
16-7-302, is authorized to enter into a written stipulation, to be signed by the defendant,
the defendant's attorney of record, and the district attorney, under which the defendant is
obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be
similar in all respects to conditions permitted as part of probation. In addition, the
stipulation may require the defendant to perform community or charitable work service
projects or make donations thereto. Upon full compliance with such conditions by the
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Colorado caselaw a defendant who is subject to a deferred judgment has not
waived or exhausted his direct appellate rights. However, the cases cited by
the respondent relate only to appeals from the revocation of probation. See
People v. Hallman, 652 P.2d 173 (Colo. 1982) (reviewing appeals from a
trial court’s order revoking a deferred sentence); People v. Anderson,
703
P.2d 650 (Colo. Ct. App. 1985) (stating in dicta that the appeal was dismissed
without prejudice to the right to raise issues regarding an alleged violation of
the plea agreement in the event a judgment was entered); People v. Boykin,
631 P.2d 1149 (Colo. Ct. App. 1981) (holding that an order revoking a
deferred sentence may be appealed). The respondent has presented no
caselaw establishing a right to appellate review on the issue of guilt or innocence of the original charge. We therefore find that after deferral of judgment
and sentence under Colorado law, no further proceedings are available to a
defendant to contest his guilt.4
VI. LAPSE OF APPEAL RIGHTS
We further find, in any case, that the respondent’s claim to have retained
appeal rights during the period in which his judgment was deferred is now to
defendant, the plea of guilty previously entered shall be withdrawn and the charge upon
which the judgment and sentence of the court was deferred shall be dismissed with
prejudice. Such stipulation shall specifically provide that, upon a breach by the
defendant of any condition regulating the conduct of the defendant, the court shall enter
judgment and impose sentence upon such guilty plea. When, as a condition of the
deferred sentence, the court orders the defendant to make restitution, evidence of failure
to pay the said restitution shall constitute prima facie evidence of a violation. Whether a
breach of condition has occurred shall be determined by the court without a jury upon
application of the district attorney and upon notice of hearing thereon of not less that five
days to the defendant or the defendant's attorney of record. Application for entry of
judgment and imposition of sentence may be made by the district attorney at any time
within the term of the deferred judgment or within thirty days thereafter. The burden of
proof at such hearing shall be by a preponderance of the evidence, and the procedural
safeguards required in a revocation of probation hearing shall apply.
(3) When a defendant signs a stipulation by which it is provided that judgment and
sentence shall be deferred for a time certain, he thereby waives all rights to a speedy trial,
as provided in section 18-1-405, C.R.S.
Colo. Rev. Stats. § 16-7-403 (1988).
4 We note that section 16-7-403(2) provides no opportunity for a further hearing on the issue
of guilt prior to entry of a judgment. The statute specifically states that upon a breach by the
defendant of any condition regulating his conduct, the court “shall enter judgment” and impose
sentence. Id. Colorado caselaw confirms that entry of a judgment is mandatory if a violation of
the conditions occurs. See People v. Wilder, 687 P.2d 451 (Colo. 1984) (holding that a trial
court does not have discretion in revoking a deferred judgment once it finds a violation of the
terms of deferral); People v. Widhalm,
642 P.2d 498 (Colo. 1982) (stating that upon a judicial
determination that a violation occurred, the court must enter a judgment of conviction upon the
previously entered guilty plea).
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no avail. The record reflects that his 4-year deferral period, which began in
1989, has been completed. Consequently, any right he may have had to take
an appeal in his criminal proceedings has lapsed and can no longer prevent a
finding that his conviction is final. See Wilson v. INS, supra.
VII. CONCLUSION
Inasmuch as the respondent has no further proceedings available to contest his guilt, we conclude that he has a final conviction for immigration purposes under Matter of Ozkok, supra. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
CONCURRING OPINION: Michael J. Heilman, Board Member
I respectfully concur.
The respondent states on appeal that he is raising “two separate and distinct issues: First, finality; and second, a challenge to the Ozkok decision.”
The majority has enlarged upon this simple assertion and transformed this
appeal in part into a rather extensive interpretation of Colorado law. In my
view, however, one can hardly get into a detailed examination of either Colorado law or Matter of Ozkok, l9 I&N Dec. 544 (BIA l988), in the factual context of a case where the respondent has essentially offered no analysis of
Colorado law.
All that one can safely say is that the respondent was sentenced under section 16-7-403 of the Colorado Revised Statutes. According to the respondent,
“It is well-established under Colorado law that a defendant who has entered
into a deferred judgment arrangement” under this provision, who is still
under the deferral period, “has not waived or exhausted his direct appellate
rights.” The respondent refers us to People v. Hallman, 652 P.2d 173 (Colo.
l982), People v. Anderson,
703 P.2d 650 (Colo. Ct. App. l985), and People v.
Boykin,
631 P.2d 1149 (Colo. Ct. App. l981), for support for this proposition.
The problem I see with this argument, as the majority properly points out,
is that those cases deal only with motions for post-conviction review relating
to revocation of deferred sentence, not appeal from the plea of guilty and
entry of deferred judgment. Because the respondent has not told us on appeal
which provision of Colorado statute section l6-7-403 he is relying on, one
can only speculate as to the exact statutory basis for his argument. A guess
would be subsection (2) which provides in part that “upon a breach by the
defendant of any condition regulating the conduct of the defendant, the court
shall enter judgment and impose sentence upon such guilty plea.” The cases
cited by the respondent relate solely to appeal rights upon this determination
that a “breach of condition has occurred.” The process by which this occurs is
a hearing, at which the burden of proof is by a “preponderance of the
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evidence,” with the “procedural safeguards required in a revocation of probation hearing” applicable.
The respondent simply does not prove that he has a right of direct appeal
from the deferred judgment by citing to a statute and cases that deal solely
with procedures relating to violation of stipulated conditions during the
deferred sentence period.
As far as one can follow the respondent’s argument, it appears to be similar to one recently made and rejected in the Fifth Circuit. There, the argument
was summarized as being that “his conviction is not final for deportation purposes because his probation remained subject to modification or revocation
and because Texas probationers can appeal the revocation of their probation.” Wilson v. INS, 43 F.3d 211 (5th Cir. l995).
For this reason, I would dismiss the appeal.
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