MATTER OF SIRHAN, ET AL. In Deportation Proceedings A-10711879 A-13598200 A-13578469 Decided by Board June 19, 1970 (1) In deportation proceedings a collateral attack may be made on a criminal court judgment on the question of jurisdiction. (2) Where an alien was charged with deportability under section 241 (a) (4) of the Immigration and Nationality Act on the basis of a criminal conviction in California in 1966 for which he was sentenced for one year, with sentence suspended; thereafter the court by order modified the sentence to less than a year; and subsequently the conviction was expunged in 1969, the deportation proceedings are terminated on the basis of the expungement (which eliminates the conviction as a deportation ground) rather than as improvidently begun, since to a prospective employer or other person the latter may lend itself to the erroneous inference that proceedings were terminated as a matter of administrative discretion, rather than because the alien is not deportable. (3) Since authority lies with the superior court of California, through the writ of coram nobis, to enter an order vacating an alien's prior conviction in that court of violation of California marijuana laws and certifying the case to the juvenile court, which accepted the alien as a ward, deportation proceedings against the alien under section 241 (a) (11) of the Act are terminated since the conviction which formed the basis of deportability no longer exists, having been vacated. CHARGES: Order: Act of 1952-Section 241 (a) (11) [8 U.S.C. 1251(a) (11)]-Convicted of violation of marijuana law. [SIRHAN, RODRIGUEZ-RODRIGUEZ] Order: Act of 1952-Section 241 (a) (4) [8 U.S.C. 1251 (a) (4)]-Convicted of crime committed within five years after entry and sentenced to a year or more. ON BEHALF OF RESPONDENTS: David C. Marcus, Esquire Los Angeles, California 90013 RODRIGUEZ-RODRIGUEZ: Los Angeles 435 S. Boyle Avenue Los Angeles, California 90033 ON BEHALF OF SERVICE: Also, in SIRHAN, and RODRIGUEZ-RODRIGUEZ: William S. Howell Trial Attorney (Filed brief in each case) Also, in TALAVERA-ARREDONDO: Trial Attorney (Filed brief) These cases were tried separately before different special inquiry officers. Because the same issue is raised in each, we shall consider them jointly. We shall approve the special inquiry officer's termination of proceedings in each case. These deportation cases are based on convictions which were subsequently changed or vacated by the courts in which the convictions occurred. The Service contends that the courts had no jurisdiction to enter the subsequent orders. If the subsequent orders are void, the original convictions can serve as the basis for deportation orders except in Talavera's case where the conviction has been expunged. If the subsequent orders of the courts are to be given effect, the original convictions cannot serve as the basis for the deportation of Sirhan and Rodriguez. In Sirhan and Rodriguez, we consider these questions: May we determine whether the courts had jurisdiction to enter the subsequent orders? If so, did the courts have the jurisdiction to enter them? If they had jurisdiction, are the aliens, nevertheless, deportable on the basis of the original convictions? In Talavera, we consider these questions: Should the case be terminated, as requested by the District Director, on the ground that he improvidently started the case; or, as found by the special inquiry officer and is asked by counsel, on the ground that the subsequent order of the court eliminated the original order for deportation purposes? Should we terminate on the ground that the expungement eliminated the conviction for deportation purposes? The individual cases will be briefly set forth. The special inquiry officer's orders state the facts fully. Sirhan and Rodriguez were each separately convicted for violation of marijuana laws in a California superior court. Each was charged in deportation proceedings with being deportable by reason of his conviction. In each case, the court then vacated the conviction and certified the case to the juvenile court which accepted the alien as a ward. A person treated as a juvenile is not considered a person convicted of crime. The special inquiry officers held that the convictions on which the orders to show cause were issued no longer existed. They therefore terminated proceedings. Talavera was convicted in a California superior court in April 1966 for issuing a check without sufficient funds. In May, he was sentenced to imprisonment for one year. The sentence was suspended. Deportation proceedings were instituted. In October, the court modified the sentence to make the term of imprisonment less than a year. The conviction was expunged in May 1969. The special inquiry officer terminated proceedings on the ground that the modified order removed respondent from the class of deportable aliens since he was no longer an alien sentenced to a year or more. The Service believes that the effect of the modified order is a moot question because the expungement has removed the conviction as the basis for deportation; but it asks that the deportation proceedings be terminated on the ground that they were improvidently begun. The State of California was represented at the sessions of court when the changes in the court orders were made. The change in Sirhan was made by a judge other than the one who entered the original order. The changes in the other cases were made by the same judges who entered the original orders. In Sirhan, a motion to vacate was made by counsel. In Rodriguez, the court vacated the conviction on its own motion. In Talavera, the modification was apparently made as a result of a motion or recommendation by Talavera's probation officer or the oral motion of counsel. HAS THE BOARD THE POWER TO ENTERTAIN A COLLATERAL In determining whether an alien is deportable, the immigration authorities cannot go behind a judicial record to determine the guilt or innocence of the alien, U.S. ex rel. Mylius v. Uhl, 210 F. 860 (2 Cir., 1914). However, guilt or innocence is not involved here. The question is the jurisdiction of the courts to change their orders. This is a proper and necessary issue for consideration in these proceedings, U.S. ex rel. Freislinger v. Smith, 41 F.2d 707 (7 Cir., 1930); Joseph v. Esperdy, 267 F. Supp. 492 (S.D.N.Y., 1966); Doss v. State of North Carolina, 252 F. Supp. 298 (M.D., 1966); Vasquez v. Vasquez, 240 P.2d 319 (Ct. App. Cal., 1952); Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA, 1963); Matter of H-9 I. & N. Dec. 460 (BIA, 1961); Matter of C-, 6 I. & N. Dec. 366 (BIA, 1954). See !RMatter of J-, 6 I. & N. Dec. 562 (AG, 1956). But see Taran v. United States, 266 F.2d 561 (8 Cir., 1959). The party attacking the judgment must establish the lack of jurisdiction by convincing evidence, Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871 (6 Cir., 1943), cert. denied 320 U.S. 800; Choctaw & Chickasaw Nations v. City of Atoka, Okl., 207 F.2d 763 (10 Cir., 1953); Delanoy v. Delanoy, 13 P.2d 719 (Cal., 1932). In Sirhan and Rodriguez, we shall consider the issue raised by the Service concerning the courts' power to change their orders. We shall not make the inquiry in Talavera because the expungement there moots the issue as to the validity of the court's modification. It is settled law that expungement of a non-drug conviction eliminates it as a ground for deportation. Use of the expungement is preferable to terminating the case as improvidently begun-an action, which, to a prospective employer or other person, may imply that deportation proceedings were terminated because the District Director exercised a discretionary power rather than because Talavera is not deportable. Since no hardship to Talavera is shown because we rely on the expungement rather than on the modified order, we see no need to explore the ramifications of the court's action in his case. See Matter of Vizcarra-Delgadillo, Interim Decision No. 1917 (BIA, 1968). POWER OF THE COURT IN CALIFORNIA TO MODIFY A California criminal courts have statutory and inherent powers to modify orders. We will first consider the statutory power. Section 1203.3 of the Penal Code is cited by the special inquiry officers as authority for the courts' modifications. The provisions of this section follow: $1203.3. [Revocation, modification or termination of probation by court: Notice to probation officer: Discharge of defendant.] The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. It may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation and discharge the person so held, but no such order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order, and in all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections. We find that section 1203.3 continues the jurisdiction of the court over the convicted person only so far as conditions of probation and matter relating to probation are concerned. The section does not authorize vacating a conviction. These are our reasons: The section is found among provisions relating to probation. The heading of the section relates to changes of probation. All cases cited on the section concern judgments which involve matters relating to probation. The case of In re Scarborough, 173 P.2d 825 (Ct. App. Cal., 1946), held that under section 1203.3, a valid condition of probation must be present to justify a change of judgment. It would seem, therefore, that when probationary matters are not present, the section cannot be relied upon as authority for the change of a judgment. Finally, the changes of judgment expressly authorized by the section-changes involving imposition of execution of sentence-would hardly authorize vacating a conviction. Since section 1203.3 relates to changes involving matters of probation, we must determine whether the change in Sirhan or Rodriguez involved a matter of probation. In both cases there were conditions of probation relating to service of time and obedience to the law. In addition, in Sirhan there were conditions concerning use of narcotics, associations, employment and residence. It is clear that in neither case did the court order vacating the conviction relate to a matter of probation. We conclude that the court could not have found authority for its action in section 1203.3. We now consider the court's inherent powers to modify an order. There are two kinds, one short-lived, the other continuing. The short-lived one expires when the original order is entered in the minutes or when legal restraint has been imposed upon the defendant, People v. Thomas, 342 P.2d 889, 893 (Cal., 1959). Sirhan was convicted in October 1966 and sentenced in December 1966. The court orders were entered in the minutes in the same months they were issued. The court vacated the conviction and certified the case to the juvenile court in May 1967. Rodriguez |