Neal Andrew CARR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
Docket: 94-70373
Court: Court of Appeals for the Ninth Circuit; June 25, 1996; Federal Appellate Court
Neal Andrew Carr petitions for review of the Board of Immigration Appeals' (BIA) decision that deemed him deportable under 8 U.S.C. § 1251(a)(2)(C) due to his 1991 conviction for assault with a deadly weapon, a firearms offense. Carr, a Canadian native and legal permanent resident since 1967, argued that expungement of his conviction under California law should negate the grounds for deportation. However, both the immigration judge (IJ) and the BIA denied his request, stating that the Service only recognizes expungements for specific crimes, none of which included his firearms offense.
Carr asserts that this selective recognition violates his equal protection rights under the Due Process Clause, despite not raising this argument during administrative proceedings. The court agrees to review the constitutional claim, noting that while issues typically waived in administrative hearings can be heard if they do not involve procedural errors, the Board's legal interpretations are afforded deference.
The court emphasizes that aliens with final convictions are generally deportable, but exceptions exist for expungements of crimes involving moral turpitude, allowing some convicted individuals to avoid deportation if their convictions are expunged.
The Service acknowledges the expungement of certain drug offenses due to changes introduced by the Federal First Offender Act (18 U.S.C. 3607), which allows for the expungement of federal drug convictions for first-time offenders under 21 years of age, restoring their legal status prior to the arrest. Consequently, if an alien's federal conviction is expunged under this statute, deportation is not permissible. Furthermore, if a state establishes a law similar to section 3607, the Service will recognize that state expungement for drug offenses, although a case like In re Deris showed that not all state laws met this criterion.
Carr's weapons offense does not qualify as a moral turpitude crime, which would allow for discretionary deportation waivers, nor is it an expungeable drug offense. The Board correctly declined to delay his deportation for potential expungement, as the Service would not recognize it for deportation purposes. Carr claims that the differentiation between expungeable and non-expungeable crimes violates his equal protection rights under the Due Process Clause, arguing that the Service's classification system lacks rational basis. However, the precedent set in Garberding does not support Carr's position; it addressed the inconsistency in recognizing state expungements only when they closely matched federal standards, which was deemed discriminatory. After Garberding, the Service revised its approach to avoid such inconsistencies, now allowing deportation defenses for state convictions if the individual could prove eligibility for federal first offender treatment.
Carr argues that the Service's distinction between firearms offenses and crimes involving moral turpitude and drug offenses is irrational and violates due process, referencing the Garberding case. However, Garberding only addressed the differential treatment of aliens based on state laws related to expungement, not the classification of crimes. Thus, it does not support Carr's claim regarding due process violations based on the nature of crimes. Additionally, Carr contends it is irrational to allow expungement for moral turpitude offenses but not for firearms offenses, citing Cabasug v. INS. Cabasug establishes that the Service can rationally deny discretionary deportation relief for firearms offenses, despite the severity of other crimes, affirming that different policies for firearms offenses are permissible. The court does not agree that all moral turpitude crimes are necessarily more serious than firearms violations nor that the Constitution mandates a spectrum of crime severity. Consequently, the Service is allowed to differentiate between these offenses in the context of expungement recognition. The petition is denied.
