United States Court of Appeals,
Fifth Circuit.
No. 94-40492
Summary Calendar.
Morris Winston WILSON, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Feb. 1, 1995.
Petition for Review of an Order of the Board of Immigration
Appeals.
Before KING, JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:
Petitioner Morris Winston Wilson seeks review of an order of
deportation issued by the Immigration Judge and affirmed by the
Board of Immigration Appeals. The deportation order was issued
because of Wilson's conviction for possession of marijuana in
Dallas County, Texas. Wilson challenges the order, contending that
the Board's standard for conviction is contrary to congressional
intent and to Supreme Court precedent, and alternatively arguing
that his conviction was not final for purposes of deportation.
Finding no merit in his contentions, we affirm the decision of the
Board.
I. FACTUAL AND PROCEDURAL BACKGROUND
Wilson is a thirty-seven year old native and citizen of Saint
Christopher who was admitted into the United States as a
nonimmigrant visitor on or about March 3, 1985. On May 19, 1988,
his status was adjusted to lawful permanent resident based on his
1
marriage to a United States citizen.
On July 15, 1988, Wilson pleaded guilty to and was convicted
of possession of marijuana in a Texas state court in Dallas County.
The self-titled "Judgment" stated that "[i]t is therefore found and
adjudged by the court, that the said Defendant is guilty of the
felony offense" of marijuana possession. Wilson received a
sentence of four years confinement and a $500 fine, but the
sentence was suspended and Wilson was placed on probation for a
period of four years. On July 17, 1992, after Wilson had
satisfactorily fulfilled his conditions of probation, the court
entered an order setting aside the judgment of conviction,
dismissing the indictment, discharging Wilson from probation, and
releasing him from all penalties and disabilities resulting from
the judgment of conviction.
The Immigration and Naturalization Service ("INS") issued an
Order to Show Cause on May 31, 1992, charging Wilson with
deportability under section 241(a)(2)(B)(i)1 of the Immigration and
Nationality Act ("INA"). At his hearing, Wilson admitted the
allegations against him but denied deportability, arguing that his
1
Section 241(a)(2)(B)(i) states in the following relevant
part:
Any alien who at any time after entry has been
convicted of a violation of (or a conspiracy or attempt
to violate) any law or regulation of a State, the
United States, or a foreign country relating to a
controlled substance, ... other than a single offense
involving possession for one's own use of 30 grams or
less of marijuana, is deportable.
8 U.S.C. § 1251(a)(2)(B)(i). Wilson's conviction did not
fall under the thirty gram exception.
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conviction did not qualify as a conviction for immigration
purposes. The Immigration Judge followed the Board of Immigration
Appeals' ("BIA") decision in Matter of Ozkok, A-12150228, 1988 WL
235459 (BIA 1988), and concluded that Wilson's conviction was
sufficient for immigration and deportability purposes. On appeal
to the BIA, Wilson argued that the Ozkok conviction test was
invalid, and alternatively, Wilson alleged that his probationary
sentence did not meet the Ozkok conviction test. He also
challenged the finality of his conviction for immigration purposes.
The BIA reaffirmed the Ozkok test and rejected Wilson's other
arguments. Wilson appeals from the BIA's decision, asserting
essentially the same arguments presented to the BIA.
II. STANDARD OF REVIEW
In reviewing challenges to the BIA's interpretation of a
statutory term, we apply a two-pronged standard of review. First,
we consider "the legal standard under which the INS should make the
particular deportability decision." Animashaun v. INS, 990 F.2d
234, 237 (5th Cir.1993). If the governing statute does not clearly
speak to the question before the court, we have "upheld agency
interpretations of ambiguous law when that interpretation is
reasonable." Id. (citing Chevron, U.S.A., Inc. v. National
Resources Defense Counsel, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984)). As the Supreme Court has noted, "[w]e have
long recognized that considerable weight should be accorded to an
executive department's construction of a statutory scheme it is
entrusted to administer...." Chevron, 467 U.S. at 844, 104 S.Ct.
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at 2782.
After determining the controlling legal standard, "we will
next examine the Board's findings under the substantial evidence
test to determine whether the legal standard has been satisfied."
Animashaun, 990 F.2d at 237. The substantial evidence standard
"requires only that the Board's conclusion be based upon the
evidence presented and that it be substantially reasonable." Id.
III. ANALYSIS AND DISCUSSION
A. The Validity of the Ozkok Conviction Standard
Wilson contends that the conviction test announced in the
BIA's Ozkok decision is inapplicable because it is inconsistent
with congressional intent and with the Supreme Court's decision in
Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955).
We disagree with both of these contentions, but we begin by
examining the background and the history of the Ozkok decision.
1. The foundations of Ozkok
In Matter of Ozkok, after "an extensive review of the relevant
case law, legislative history, and INS precedent, the BIA deviated
abruptly from long-standing INS and BIA precedent." Martinez-
Montoya v. INS, 904 F.2d 1018, 1021 (5th Cir.1990). Under the
narcotics violation provision of the INA, the BIA adopted a uniform
federal standard for defining "conviction," rather than retaining
a state-by-state standard. Specifically, the BIA stated that "we
shall consider a person convicted if the court has adjudicated him
guilty or has entered a formal judgment of guilt." Ozkok, 1988 WL
at *4. "Where adjudication of guilt has been withheld," however,
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the Board in Ozkok stated that a conviction will be found for
immigration purposes when the following elements are present:
(1) a judge or jury has found the alien guilty or he has
entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or
restraint on the person's liberty to be imposed (including but
not limited to incarceration, probation, a fine or
restitution, or community-based sanctions ...); and
(3) a judgment or adjudication of guilt may be entered if the
person violates the terms of his probation or fails to comply
with the requirements of the court's order, without
availability of further proceedings regarding the person's
guilt or innocence of the original charge.
Id.
Wilson correctly points out that the Ozkok standard represents
a departure from the BIA's previous position, which required "the
action of the court [to be] considered a conviction by the state
for at least some purpose." Id. at *6-7 n. 4; Martinez-Montova,
904 F.2d at 1021. In articulating this new standard, the BIA noted
that the previous analytical framework was "too narrow and
undesirably subject to the vagaries of state law." Martinez-
Montoya, 904 F.2d at 1021; Ozkok, 1988 WL at *3. According to the
BIA, "Congress did not intend for a narcotics violator to escape
deportation as a result of a technical erasure of his conviction by
a state." Ozkok, 1988 WL at *3 (citing Matter of A—F—, 8 I & N
Dec. 429, 445-46 (BIA 1959)). The Attorney General noted "the
federal policy to treat narcotics offenses seriously," and the
Attorney General determined that "it would be inappropriate for an
alien's deportability for criminal activity to be dependent upon
"the vagaries of state law.' " Ozkok, 1988 WL at *3 (quoting
5
Matter of A—F—, 8 I & N Dec. 429, 445-46 (BIA 1959)); see also
Yanez-Popp v. INS, 998 F.2d 231, 235 (4th Cir.1993) ("In Ozkok, the
Board considered Supreme Court and federal precedent in concluding
that Congress intended federal immigration laws to be uniform and
that previous interpretations of state "convictions' under varying
state laws for immigration purposes produced "anomalous and unfair
results.' ") (quoting Ozkok, 1988 WL at *3). Thus, in light of the
congressional resolve to combat our nation's drug problem and to
unify the conviction standard, the BIA in Ozkok adopted a federal
definition of "conviction."
2. Consistency with Congressional Intent
Wilson contends that the Firearms Owners' Protection Act2—an
amendment to a federal firearms statute—indicates that the federal
conviction standard in Ozkok is inconsistent with congressional
intent. Wilson apparently believes that the enactment of this
amendment indicates that Congress intended for the term
"conviction" to hinge on whether the state considers the person
convicted for some purpose. In other words, according to Wilson,
2
The statute states in the following relevant part:
What constitutes a conviction of such a crime shall be
determined in accordance with the law of the
jurisdiction in which the proceedings were held. Any
conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil
rights restored shall not be considered a conviction
for purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport,
possess, or receive firearms.
18 U.S.C. § 921 (emphasis added).
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the Amendment reveals that Congress intended for the pre-Ozkok
conviction standard to govern immigration law because that standard
required the action of the court to be considered a conviction by
the state for at least some purpose.
We believe that Wilson's interpretation of the firearms
amendment is much too broad. On this point, we wholly agree with
the Fourth Circuit's analysis and discussion:
In Dickerson [v. New Banner Institute, Inc., 460 U.S. 103, 103
S.Ct. 986, 74 L.Ed.2d 845], [ (1983) ] the Supreme Court held
that for purposes of federal gun control laws, the definition
of "conviction" was a question of federal law since there was
an absence of Congress' intent to the contrary. Congress
subsequently overruled Dickerson [in 18 U.S.C. § 921] by
requiring that a conviction be defined in accordance with the
laws in which the criminal proceedings are held. However, the
case still stands for the general proposition that federal law
governs the application of Congressional statutes in the
absence of a plain language to the contrary. By overruling
the holding in Dickerson, Congress merely provided the
contrary indication that state, not federal law, applies in
interpreting the federal gun control statute. Here, Congress
has not overruled Ozkok with contrary legislation;
accordingly, Dickerson persuades us to adopt Ozkok 's holding
that for the purpose of the INA, federal, rather than state,
law is to define a "conviction."
Yanez-Popp, 998 F.2d at 236 (citations omitted) (emphasis added).
In other words, the firearms amendment mandates a state definition
of conviction only for the firearms statute that it amends. For
purposes of the INA, the amendment is inapplicable, especially
because of the congressional policy to treat narcotics offenses
seriously and to unify the deportability standards.
3. Pino v. Landon
Wilson also contends that the BIA's Ozkok decision effectively
overruled the Supreme Court's decision in Pino v. Landon, 349 U.S.
901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955). In Pino, an alien had
7
been found guilty of petty larceny in Massachusetts district court.
See Pino v. Nicolls, 215 F.2d 237, 240 (1st Cir.1954). The court
found the defendant guilty, but it suspended his one-year prison
sentence and instead imposed probation for one year. See id. at
241. As the Seventh Circuit described:
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.
Will v. INS, 447 F.2d 529, 531 (7th Cir.1971) (describing the facts
of Pino ). The Pino court noted that "[p]lacing the case on file
was not equivalent to a revocation of the judicial determination of
Pino's guilt...." 215 F.2d at 244-45. The court subsequently held
that the "on file" status of Pino's conviction did not negate its
finality. See id. Significantly, however, the court also noted
that "in the interest of a uniform application of the federal
statute, the meaning of the word "convicted' is a federal
question...." Id. at 243.
In a brief per curiam opinion, the Supreme Court reversed the
holding of the First Circuit:
On the record here we are unable to say that the conviction
has attained such finality as to support an order of
deportation within the contemplation of § 241 of the
Immigration and Nationality Act. The judgment is reversed.
349 U.S. at 901, 75 S.Ct. at 576. Thus, it is clear that the
Supreme Court only addressed the finality of the conviction in
Pino, and the Court expressed no disagreement with the First
8
Circuit's characterization of "conviction" as a federal question.
Simply put, the decision of the BIA to apply a federal conviction
standard in Ozkok does not infringe at all, either explicitly or
implicitly, upon the Supreme Court's holding in Pino. See Yanez-
Popp, 998 F.2d at 236 ("[N]owhere in the [Pino ] decision did the
Court disapprove of the First Circuit's statement that "conviction'
was to be defined according to federal [and] not state law."). We
conclude that the validity of Ozkok is unaffected by the Supreme
Court's Pino decision.
4. Reasonableness of the Ozkok Standard
Simply put, we agree with the INS that Wilson's contentions
are without merit. Ozkok 's rule applying a federal "conviction"
standard rather than a state standard is reasonable and is
consistent with congressional intent and the relevant case law.
Numerous other circuit courts agree. See, e.g., Paredes-
Urrestarazu v. INS, 36 F.3d 801, 811 n. 11 (9th Cir.1994) ("[T]he
meaning of the term "conviction' is a question of federal law");
Molina v. INS, 981 F.2d 14, 19 (1st Cir.1992) ("The federal
Constitution permits Congress to condition its immigration law upon
the absence of a "conviction' as federally defined."); Chong v.
INS, 890 F.2d 284, 285 (11th Cir.1989) ("The BIA was also correct
in not considering the Florida expungement statute because this
court, other courts of appeals, and the BIA have expressly held
that the term "convicted' in the [INA] must be interpreted in
accordance with federal standards.") Yazdchi v. INS, 878 F.2d 166,
167 (5th Cir.1989) ("[T]he consequences which a state chooses to
9
attach to a conviction in its courts for purposes of its own law
are for it to say; but they cannot control the consequences to be
given it in a deportation proceeding—a function of federal law.");
Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir.1975) ("The
definition of "convicted' ... is a matter of federal law, to be
interpreted in harmony with the policies underlying the Immigration
and Nationality Act."); Will v. INS, 447 F.2d 529, 531 (7th
Cir.1971) ("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." (internal
quotation omitted)).
Moreover, the BIA has discretion to reinterpret the INA if it
employs a "reasoned analysis." Rust v. Sullivan, 500 U.S. 173,
187, 111 S.Ct. 1759, 1769, 114 L.Ed.2d 233 (1991). As the Supreme
Court noted:
[A] revised interpretation deserves deference because an
initial agency interpretation is not instantly carved in stone
and the agency, to engage in informal rulemaking, must
consider varying interpretations and the wisdom of its policy
on a continuing basis. An agency is not required to establish
rules of conduct to last forever, but rather must be given
ample latitude to adapt [its] rules and policies to the
demands of changing circumstances.
Id. at 186-87, 111 S.Ct. at 1769 (internal quotations omitted)
(citations omitted). Based on our own analysis and on the
deference that we accord to the BIA, we conclude that the Ozkok
federal conviction standard is reasonable, and we will apply it in
the present case. See Martinez-Montoya, 904 F.2d at 1021 ("The
federal agency construction is to be upheld if it is reasonable and
10
if it is not contrary to Congressional intent.").
B. Application of the Ozkok Standard
There is substantial evidence to affirm the BIA's conclusion
that Wilson is deportable under the Ozkok test. Wilson's arguments
regarding the satisfaction of the three Ozkok elements are
misplaced and irrelevant, for the three-pronged test is only
applicable "[w]here adjudication of guilt has been withheld."
Ozkok, 1988 WL at *4. In this case, however, Wilson was not
sentenced under the Texas deferred adjudication statute and
adjudication of guilt was not otherwise withheld. On the contrary,
Ozkok considers a person convicted "if the court has adjudicated
him guilty or has entered a formal judgment of guilt." Id. These
conditions are satisfied in Wilson's case, as his "Judgment"
explicitly stated that he was "found and adjudged" guilty of
marijuana possession by the court; only his sentence was
suspended. Thus, there is substantial evidence to support the
BIA's conclusion that Wilson has been "convicted" for purposes of
the federal immigration laws.
C. Finality of the Conviction
Wilson also contends that his conviction had not achieved a
sufficient degree of finality during his probationary period.
According to Wilson, 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. Once again, we disagree with Wilson's
contentions.
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As we noted in Martinez-Montoya, "[w]e trace the requirement
of finality back to the per curiam decision in Pino v. Landon."
904 F.2d at 1025. Significantly, in Martinez-Montoya, we went on
to make the following observations:
The Pino opinion itself gives little indication as to the
degree of finality required. But what is crucial is that all
subsequent case authority has concluded that unless the alien
has exhausted or waived his rights to direct appeal or the
appeals period has lapsed the criminal proceeding is not
sufficiently final to constitute a conviction for immigration
purposes.
Id. at 1025. We adopted this framework for our "finality"
determination:
Under this overwhelming authority, and consistent with the
Ozkok decision, we conclude that, unless [petitioner] has
waived or exhausted his right to direct appeals, or the
appeals period has lapsed, he cannot be considered convicted
for immigration purposes.
Id. at 1026.
As mentioned, Wilson was not sentenced under a deferred
adjudication statute; rather, he was "found and adjudged" guilty
and his sentence was suspended. Considering that Wilson's
"Judgment" of conviction was entered on July 15, 1988, his
thirty-day direct appeals period has clearly lapsed. See
Tex.R.App.P. 41(b)(1) ("Appeal is perfected when notice of appeal
is filed within thirty days after the day sentence is imposed or
suspended in open court or the day an appealable order is signed by
the trial judge....") (emphasis added). Wilson is simply wrong in
his contention that "the Texas procedure allows the defendant to
appeal to the Court of Criminal Appeals for review of the trial and
conviction during the probationary period." The statute does
12
provide that "[t]he right of the probationer to appeal to the Court
of Criminal Appeals for a review of the trial and conviction, as
provided by law, shall be accorded the probationer at the time he
is placed on probation." Tex.Rev.Civ.Stat.Ann. art. 42.12, § 8(b)
(Vernon 1979). As mentioned, however, Wilson was placed on
probation on July 15, 1988, and his statutory right of appeal
lapsed shortly thereafter.
Wilson's finality argument based on the ability to appeal a
revocation of probation is also unavailing. Simply put, Wilson's
probationary period has been completed; thus, the right to appeal
any modification or revocation of probation has lapsed and is
inapplicable. Furthermore, Wilson's reliance on the Will opinion
is misplaced, as that court agreed that a conviction is not final
only when "a direct appeal is pending"—a situation that does not
exist in Wilson's case. Will, 447 F.2d at 533. In short, we agree
that Wilson's conviction has achieved a sufficient degree of
finality for purposes of the federal immigration laws.
IV. CONCLUSION
For the foregoing reasons, the decision of the BIA in support
of deportability is AFFIRMED.
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