James Edward Kelly v. Immigration and Naturalization Service

349 F.2d 473 James Edward KELLY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 19340. United States Court of Appeals Ninth Circuit. June 20, 1965. Sidney Broffman, Los Angeles, Cal., for petitioner. Francis C. Whelan, U.S. Atty., Donald A. Fareed, Asst. U.S. Atty., Chief, Civil Section, James R. Dooley, Asst. U.S. Atty., Los Angeles, Cal., for respondent. Before BARNES and ELY, Circuit Judges, and PENCE, District Judge. BARNES, Circuit Judge: 1 This is a petition to review an order of deportation affirmed by the Board of Immigration Appeals. We have jurisdiction pursuant to 1105a of Title 8, United States Code. 2 The sole issue here involved is whether petitioner has 'at any time * * * been convicted' within the contemplation of 8 U.S.C. 1251(a)(11), 1 after conviction and sentence by the courts of the State of California for violating 11531 of the Health and Safety Code (possession or sale of marihuana), when a so-called 'expungement' of the conviction has taken place under 1203.4 of the California Penal Code. 2 3 We have withheld decision in this case pending the determination by another panel of this court of the appeal in Maria Garcia-Gonzales v.…

(dissenting):

In reaching its harsh conclusion, the majority relies upon Maria Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965), recently heard and decided by another panel of our court. That panel’s decision rests primarily upon an opinion of the Attorney General, Matter of A-F-, 8 I. & N. Dec. 429 . I do not agree with that opinion; consequently, I disagree with our court’s decisions in Garcia-Gonzales and in the case at bar.

These are cases involving a problem of first impression, and the results work cruel consequences, not only to the two aliens directly concerned, but also to others who may become involved in a single violation of the law and be deprived of further incentive and opportunity to struggle for self-improvement, rehabilitation, and worthily contributive citizenship.

Many decisions are cited by our court in Garcia-Gonzales; however, as the court recognized, “none of these cases decides the precise question here presented.” It was said that the “principles” of some of the cited cases required the ultimate conclusion. I do not believe that these so-called “principles” are sufficiently persuasive to override an established…

This is a petition to review an order of deportation affirmed by the Board of Immigration Appeals. We have jurisdiction pursuant to § 1105a of Title 8, United States Code.

The sole issue here involved is whether petitioner has “at any time * * * been convicted” within the contemplation of 8 U.S.C. § 1251 (a) (11), 1 after conviction and sentence by the courts of the State of California for violating § 11531 of the Health and Safety Code (possession or sale of marihuana), when a so-called “expungement” of the conviction has taken place under § 1203.4 of the California Penal Code.

*474 We have withheld decision in this case pending the determination by another panel of this court of the appeal in Maria Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 , decided April 28, 1965. Decision therein was delayed pending the Supreme Court decision (as to jurisdiction) in Giova v. Rosenberg (decided October 26, 1964) 379 U.S. 18 , 85 S.Ct. 156 , 13 L.Ed. 90 . The Garcia-Gonzales case is substantially similar to this case on its facts, except that it involved a conviction under §§ 11500 and 11501 of the California Health and Safety Code (the possession or sale of…