A-2080159
Decided by Board September 6, 1957
Conviction — Finality — Rule applied to section 241 (a) (4) must be applied to section 241 (a) (11) — Conviction which results in postponement of sentence is not final.
(1) The same criteria with respect to the finality of a conviction must be applied to offenses within section 241 (a) (11) of the act as are applied to those within the second part of section 241 (a) (4).
(2) Where imposition of sentence is postponed (as contrasted with the case in which imposition of sentence is suspended) the conviction is not a final one within the meaning of the immigration laws. Cf. Matter of O----, A-5825386, Int. Dec. No. 886.
CHARGES:
Order To Show Cause: Act of 1952 — Section 241 (a) (11) ( 8 U.S.C. 1251 (a) (11)) — Convicted of any law or regulation relating to illicit possession of narcotic drugs: violation of Florida Uniform Narcotic Drug Act.
Lodged: Act of 1952 — Section 241 (a) (11) ( 8 U.S.C. 1251 (a) (11)) — Convicted of a violation of law or regulation governing or controlling the sale, manufacture, dispensing, etc., of narcotic drugs: violation of Florida Uniform Narcotic Drug Act.
BEFORE THE BOARD
Discussion: The facts are fully stated in the order of the Board and the Service motion. Briefly, respondent was convicted on January 31, 1957, for violation of the Florida Uniform Narcotic Drug Act. The court entered a finding that the respondent was convicted of the offense charged and ordered the passing of sentence suspended from day to day and term to term until the further order of the court. The question is whether the respondent has been "convicted" as that term is interpreted under the immigration laws. The Service contends that a record of conviction in Florida is final even though no sentence is imposed. Respondent is not represented, but an attorney has submitted a letter on his behalf asking that consideration be given respondent because he violated a technical provision of the narcotic law without intent to commit a violation.
In considering the meaning of the term "conviction" under section 241 (a) (4) of the Immigration and nationality Act ( 8 U.S.C.A. 1251 (a) (4)), which concerns itself with the deportability of aliens convicted of crime, we found that a conviction which consisted merely of a finding of guilt not followed by the passage of sentence would not satisfy the requirements of the immigration laws. We stated that after a finding of guilt a disposition of a case which merely postponed the imposition of sentence (unlike one which suspended the imposition of sentence) was not a sentence and did not result in a conviction under the immigration laws even if the state in which the conviction occurred considered it a conviction. In Florida, the courts have the power to suspend the imposition of sentence and they also have the power to postpone the imposition of sentence ( Pinkney v. State, 37 S. (2d) 157). The court chose to postpone the imposition of sentence. It follows that the Service contention cannot be sustained ( Matter of O----, A-5825386, August 20, 1957, Int. Dec. No. 886).
However, an interesting problem raises itself. Must "conviction" of a narcotic violation under section 241 (a) (11) of the Immigration and Nationality Act ( 8 U.S.C.A. 1251 (a) (11)) be considered in the same light as the "conviction" for crime under section 241 (a) (4)? We believe that no distinction can be made in the requirement for a "conviction" under section 241 (a) (4) and section 241 (a) (11). The same word should be given the same meaning unless the context calls for a different meaning or express provision is made for a different rendering. Neither of these exceptions is present.
Moreover, if there is a difference, and for a "conviction" less is required under section 241 (a) (11) than under section 241 (a) (4), it would mean that a mere finding of guilt would be sufficient for a conviction under section 241 (a) (11). However, in Ex parte Eng, 77 F. Supp. 74 (N.D. Calif., 1948), the court said of a narcotic law similar to the one under consideration, that although it at one time had required a sentence and the requirement of sentence had been stricken, nevertheless "some form of sentence impliedly follows conviction." A sentence is required to create a conviction of a narcotic violation for deportation purposes. It follows that the rule applied to section 241 (a) (4) must be applied to section 241 (a) (11).
The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.