In re Patricio CHAIREZ-Castaneda, Respondent

File A41 311 303 - Aurora

Decided April 28, 1995

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A right to appeal such issues as whether a violation of probation has occurred or the sentence imposed upon entry of judgment was correct will not prevent a finding of a final conviction for immigration purposes under the third prong of the standard set forth in Matter of

Ozkok, 19 I&N Dec. 546 (BIA 1988), which requires that any further proceedings available

to an alien must relate to the issue of “guilt or innocence of the original charge.”

(2) After a breach of a condition of an order deferring judgment and sentence under Colorado

Revised Statutes § 16-7-403, no further proceedings are available to a defendant to contest

his guilt.

(3) Where the period during which the respondent’s judgment and sentence were deferred

under Colorado law had been completed, any right he may have had to appeal had lapsed

and could no longer prevent a finding that his conviction was final.

FOR RESPONDENT: Kenneth H. Stern, Esquire, Denver, Colorado

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, Board

Member; HOLMES, Alternate Board Member. Concurring Opinion: HEILMAN, Board

Member.

VACCA, Board Member:

In a decision dated March 14, 1990, the Immigration Judge found the

respondent deportable under section 241(a)(11) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(11) (1988),1 as an alien convicted of a

controlled substance violation, and ordered him deported from the United

States. The respondent has appealed from that decision. The appeal will be

dismissed. The request for oral argument is denied.

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1 This section of the Act has been revised and redesignated as section 241(a)(2)(B)(i) of the

Act, 8 U.S.C. § 1251(a)(2)(B)(i) (Supp. V 1993), by section 602(a) of the Immigration Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978, 5080, but that amendment does not apply to

deportation proceedings for which notice has been provided to the alien before March 1, 1991.

See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.
I. BACKGROUND

The respondent is a native and citizen of Mexico who entered the United

States in April 1989 as a lawful permanent resident. The record reflects that

on October 2, 1989, in the District Court, Moffat County, Colorado, the

respondent entered into a stipulation for deferred judgment and sentence,

pursuant to which he pled guilty to unlawful possession of a controlled substance, to wit: cocaine. The respondent was placed on probation for 2 years

of the 4-year period during which his sentence was deferred. He was also

ordered to pay a victim’s compensation fee and court costs, to submit to drug

testing and counseling, and to serve 60 days in jail.

At his deportation hearing the respondent argued that the standard for a

conviction set forth in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), was

improper for a variety of reasons and should not be applied in his case. The

Immigration Judge stated that he was bound by the precedent decisions of the

Board of Immigration Appeals and determined that the three-pronged Ozkok

test for a conviction had been met. The respondent further contended that he

did not have a final conviction for immigration purposes because under Colorado law a defendant who has been granted deferred judgment and sentencing retains the right to a direct appeal during the deferral period. The

Immigration Judge rejected this argument, finding that the appeal to which

the defendant was entitled was only for the purpose of reviewing the revocation of probation, not the question of the defendant’s guilt, as required by

Ozkok. Therefore the Immigration Judge concluded that the respondent’s

conviction was final and that he was deportable.

II. ISSUES PRESENTED

The issues presented in this appeal are: (1) will the Board recede from

Matter of Ozkok, supra, and (2) under the third prong of Ozkok, are further

proceedings regarding guilt or innocence available under Colorado’s

deferred judgment and sentence provisions, Colorado Revised Statutes

§ 16-7-403. For the reasons explained below, we conclude that Ozkok was

correctly decided and that further proceedings regarding guilt or innocence

are not available under Colorado law. We will therefore dismiss the appeal.

III. VALIDITY OF MATTER OF OZKOK

In Matter of Ozkok, supra, we revised the standard for determining

whether a final conviction exists for immigration purposes, addressing two

different procedural contexts in which a conviction can be found. First, we

held that a person is considered convicted whenever a court has adjudicated

him guilty or has entered a formal judgment of guilt. The second part of our

analysis, which involves a three-pronged test, is applied only when there has

been no judgment or adjudication of guilt by the court. Id. at 551-52;see also

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Wilson v. INS, 43 F.3d 211 (5th Cir. 1995). Thus, if adjudication of guilt has

been deferred or withheld, we then proceed to determine whether: (1) there

has been a finding or plea to establish guilt, (2) the court has imposed some

form of punishment, penalty, or restraint of liberty, and (3) further proceedings are available to contest guilt or innocence of the original charge before

judgment can be entered following a violation of the terms of the court’s

order.

Matter of Ozkok has received the approval of the judiciary in each circuit

where it has been considered. See Wilson v. INS, supra; White v. INS, 17 F.3d

475 (1st Cir. 1994); Yanez-Popp v. United States INS, 998 F.2d 231 (4th Cir.

1993); Molina v. INS, 981 F.2d 14 (1st Cir. 1992); Chong v. INS, 890 F.2d

284 (11th Cir. 1989). Furthermore, the courts of appeals have generally

agreed that a federal standard for conviction is appropriate in immigration

proceedings. See Paredes-Urrestarazu v. United States INS, 36 F.3d 801

(9th Cir. 1994); Yazdchi v. INS, 878 F.2d 166 (5th Cir.), cert. denied, 493

U.S. 978 (1989); Kolios v. INS, 532 F.2d 786 (1st Cir.), cert. denied, 429 U.S.

884 (1976); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert.

denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th Cir. 1971); cf.

Rehman v. INS, 544 F.2d 71 (2d Cir. 1976) (noting that construction of a term

in immigration statutes is an issue of federal law, while holding that state policies to relieve a convicted alien from mandatory disability of deportation

could be accorded the same respect as federal leniency policies without

undermining enforcement of federal deportation laws). See generally

Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983) (holding that

the determination whether a conviction exists for purposes of federal gun

control laws is a question of federal, not state, law, despite the fact that the

predicate offense and its punishment are defined by state law).2 Inasmuch as

the federal standard enunciated in Matter of Ozkok has been upheld as a valid

interpretation of the immigration laws and we continue to find it appropriate,

we decline to reconsider our decision in that case.

IV. “FURTHER PROCEEDINGS” UNDER MATTER OF

OZKOK

The respondent claims that he does not have a final conviction pursuant to

Matter of Ozkok, supra, because under Colorado law he has neither waived

nor exhausted his right to a direct appeal during the deferral period following

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2 We acknowledge that Congress disagreed with the Supreme Court and amended the gun

control law to provide that the definition of conviction incorporates state law. However, in

Yanez-Popp v. United States INS, supra, the United States Court of Appeals for the Fourth

Circuit concluded that the principles of federalism stated in Dickerson v. New Banner Institute,

Inc., supra, remain applicable to immigration law. See also Wilson v. INS, supra (agreeing with

the Fourth Circuit’s analysis); Molina v. INS, supra, at 22 (noting that “federal gun control law

is not federal immigration law” in discussing the history of Dickerson and upholding the

application of the Ozkok standard for conviction).
his guilty plea. He argues that the Immigration Judge erred in interpreting

Ozkok to mean that a right to direct appeal will defeat finality only if it relates

to the issue of guilt or innocence. Inasmuch as we agree with the Immigration

Judge’s conclusion regarding the meaning of the term “further proceedings”

under the third prong of the Ozkok test, we reject the respondent’s contention.

In Matter of Ozkok, supra, we stated that the third prong of the test for a final

conviction is met if the court can enter a judgment of guilt upon the defendant’s

violation of the conditions of the deferred adjudication, without the availability

of “further proceedings regarding the person’s guilt or innocence of the original charge.” Id. at 552. Cognizant of the fact that a conviction must be sufficiently final before it will support a deportation order, we explained our

reference to such further proceedings in a footnote, observing that a conviction

does not attain sufficient finality for immigration purposes until direct appellate review has been exhausted or waived. Id. at 552 n.7. It was thus our intent

that the third prong of the Ozkok standard would be met if an adjudication of

guilt could be entered following a violation of the court’s order, unless state

law provides the defendant a right to a hearing and/or a direct appeal on the

issue of “guilt or innocence of the original charge.” Therefore, a right to appeal

other issues, such as whether a violation of probation has occurred or whether

the sentence imposed upon entry of a judgment was correct, will not prevent a

finding of conviction for immigration purposes.

V. COLORADO LAW

Section 16-7-403 of the Colorado Revised Statutes, under which the

respondent’s judgment and sentence were deferred, contains no provision for

a right to an appeal on the issue of guilt.3 The respondent argues that under

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3 The statute provides as follows:

(1) In any case in which the defendant has entered a plea of guilty, the court accepting

the plea has the power, with the written consent of the defendant and his attorney of

record and the district attorney, to continue the case for a period not to exceed four years

from the date of entry of a plea to a felony or two years from the date of entry of a plea to a

misdemeanor, or petty offense, or traffic offense for the purpose of entering judgment

and sentence upon such plea of guilty; except that such period may be extended for an

additional time up to one hundred eighty days if the failure to pay restitution is the sole

condition of supervision which has not been fulfilled, because of inability to pay, and the

defendant has shown a future ability to pay. During such time, the court may place the

defendant under the supervision of the probation department.

(2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence,

the district attorney, in the course of plea discussion as provided in sections 16-7-301 and

16-7-302, is authorized to enter into a written stipulation, to be signed by the defendant,

the defendant's attorney of record, and the district attorney, under which the defendant is

obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be

similar in all respects to conditions permitted as part of probation. In addition, the

stipulation may require the defendant to perform community or charitable work service

projects or make donations thereto. Upon full compliance with such conditions by the
Colorado caselaw a defendant who is subject to a deferred judgment has not

waived or exhausted his direct appellate rights. However, the cases cited by

the respondent relate only to appeals from the revocation of probation. See

People v. Hallman, 652 P.2d 173 (Colo. 1982) (reviewing appeals from a

trial court’s order revoking a deferred sentence); People v. Anderson, 703

P.2d 650 (Colo. Ct. App. 1985) (stating in dicta that the appeal was dismissed

without prejudice to the right to raise issues regarding an alleged violation of

the plea agreement in the event a judgment was entered); People v. Boykin,

631 P.2d 1149 (Colo. Ct. App. 1981) (holding that an order revoking a

deferred sentence may be appealed). The respondent has presented no

caselaw establishing a right to appellate review on the issue of guilt or innocence of the original charge. We therefore find that after deferral of judgment

and sentence under Colorado law, no further proceedings are available to a

defendant to contest his guilt.4

VI. LAPSE OF APPEAL RIGHTS

We further find, in any case, that the respondent’s claim to have retained

appeal rights during the period in which his judgment was deferred is now to

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defendant, the plea of guilty previously entered shall be withdrawn and the charge upon

which the judgment and sentence of the court was deferred shall be dismissed with

prejudice. Such stipulation shall specifically provide that, upon a breach by the

defendant of any condition regulating the conduct of the defendant, the court shall enter

judgment and impose sentence upon such guilty plea. When, as a condition of the

deferred sentence, the court orders the defendant to make restitution, evidence of failure

to pay the said restitution shall constitute prima facie evidence of a violation. Whether a

breach of condition has occurred shall be determined by the court without a jury upon

application of the district attorney and upon notice of hearing thereon of not less that five

days to the defendant or the defendant's attorney of record. Application for entry of

judgment and imposition of sentence may be made by the district attorney at any time

within the term of the deferred judgment or within thirty days thereafter. The burden of

proof at such hearing shall be by a preponderance of the evidence, and the procedural

safeguards required in a revocation of probation hearing shall apply.

(3) When a defendant signs a stipulation by which it is provided that judgment and

sentence shall be deferred for a time certain, he thereby waives all rights to a speedy trial,

as provided in section 18-1-405, C.R.S.

Colo. Rev. Stats. § 16-7-403 (1988). 4 We note that section 16-7-403(2) provides no opportunity for a further hearing on the issue

of guilt prior to entry of a judgment. The statute specifically states that upon a breach by the

defendant of any condition regulating his conduct, the court “shall enter judgment” and impose

sentence. Id. Colorado caselaw confirms that entry of a judgment is mandatory if a violation of

the conditions occurs. See People v. Wilder, 687 P.2d 451 (Colo. 1984) (holding that a trial

court does not have discretion in revoking a deferred judgment once it finds a violation of the

terms of deferral); People v. Widhalm, 642 P.2d 498 (Colo. 1982) (stating that upon a judicial

determination that a violation occurred, the court must enter a judgment of conviction upon the

previously entered guilty plea).
no avail. The record reflects that his 4-year deferral period, which began in

1989, has been completed. Consequently, any right he may have had to take

an appeal in his criminal proceedings has lapsed and can no longer prevent a

finding that his conviction is final. See Wilson v. INS, supra.

VII. CONCLUSION

Inasmuch as the respondent has no further proceedings available to contest his guilt, we conclude that he has a final conviction for immigration purposes under Matter of Ozkok, supra. Accordingly, the appeal will be

dismissed.

ORDER: The appeal is dismissed.

CONCURRING OPINION: Michael J. Heilman, Board Member

I respectfully concur.

The respondent states on appeal that he is raising “two separate and distinct issues: First, finality; and second, a challenge to the Ozkok decision.”

The majority has enlarged upon this simple assertion and transformed this

appeal in part into a rather extensive interpretation of Colorado law. In my

view, however, one can hardly get into a detailed examination of either Colorado law or Matter of Ozkok, l9 I&N Dec. 544 (BIA l988), in the factual context of a case where the respondent has essentially offered no analysis of

Colorado law.

All that one can safely say is that the respondent was sentenced under section 16-7-403 of the Colorado Revised Statutes. According to the respondent,

“It is well-established under Colorado law that a defendant who has entered

into a deferred judgment arrangement” under this provision, who is still

under the deferral period, “has not waived or exhausted his direct appellate

rights.” The respondent refers us to People v. Hallman, 652 P.2d 173 (Colo.

l982), People v. Anderson, 703 P.2d 650 (Colo. Ct. App. l985), and People v.

Boykin, 631 P.2d 1149 (Colo. Ct. App. l981), for support for this proposition.

The problem I see with this argument, as the majority properly points out,

is that those cases deal only with motions for post-conviction review relating

to revocation of deferred sentence, not appeal from the plea of guilty and

entry of deferred judgment. Because the respondent has not told us on appeal

which provision of Colorado statute section l6-7-403 he is relying on, one

can only speculate as to the exact statutory basis for his argument. A guess

would be subsection (2) which provides in part that “upon a breach by the

defendant of any condition regulating the conduct of the defendant, the court

shall enter judgment and impose sentence upon such guilty plea.” The cases

cited by the respondent relate solely to appeal rights upon this determination

that a “breach of condition has occurred.” The process by which this occurs is

a hearing, at which the burden of proof is by a “preponderance of the

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evidence,” with the “procedural safeguards required in a revocation of probation hearing” applicable.

The respondent simply does not prove that he has a right of direct appeal

from the deferred judgment by citing to a statute and cases that deal solely

with procedures relating to violation of stipulated conditions during the

deferred sentence period.

As far as one can follow the respondent’s argument, it appears to be similar to one recently made and rejected in the Fifth Circuit. There, the argument

was summarized as being that “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.” Wilson v. INS, 43 F.3d 211 (5th Cir. l995).

For this reason, I would dismiss the appeal.

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