1 United States Court of Appeals,

Fifth Circuit.

No. 94-40492

Summary Calendar.

Morris Winston WILSON, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Feb. 1, 1995.

Petition for Review of an Order of the Board of Immigration

Appeals.

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:

Petitioner Morris Winston Wilson seeks review of an order of

deportation issued by the Immigration Judge and affirmed by the

Board of Immigration Appeals. The deportation order was issued

because of Wilson's conviction for possession of marijuana in

Dallas County, Texas. Wilson challenges the order, contending that

the Board's standard for conviction is cont rary to congressional

intent and to S upreme Court precedent, and alternatively arguing

that his conviction was not final for purposes of deportation.

Finding no merit in his contentions, we affirm the decision of the

Board.

I. FACTUAL AND PROCEDURAL BACKGROUND

Wilson is a thirty-seven year old native and citizen of Saint

Christopher who was admitted into the United States as a

nonimmigrant visitor on or about March 3, 1985. On May 19, 1988,

his status was adjusted to lawful permanent resident based on his1 Section 241(a)(2)(B)(i) states in the following relevant

part:

Any alien who at any time after entry has been

convicted of a violation of (or a conspiracy or attempt

to violate) any law or regulation of a State, the

United States, or a foreign country relating to a

controlled substance, ... other than a single offense

involving possession for one's own use of 30 grams or

less of marijuana, is deportable.

8 U.S.C. § 1251(a)(2)(B)(i). Wilson's conviction did not

fall under the thirty gram exception.

2 marriage to a United States citizen.

On July 15, 1988, Wilson pleaded guilty to and was convicted

of possession of marijuana in a Texas state court in Dallas County.

The self-titled "Judgment" stated that "[i]t is therefore found and

adjudged by the court, th at the said Defendant is guilty of the

felony offen se" of marijuana possession. Wilson received a

sentence of four years confinement and a $500 fine, but the

sentence was suspended and Wilson was placed on probation for a

period o f four years. On July 17, 1992, after Wilson had

satisfactorily fulfil led his conditions of probation, the court

entered a n order setting aside the judgment of conviction,

dismissing the indictment, discharging Wilson from probation, and

releasing him from all penalties and disa bilities resulting from

the judgment of conviction.

The Immigration and Naturalization Service ("INS") issued an

Order to Show Cause on May 31, 1992, charging Wilson with

deportability under section 241(a)(2)(B)(i) 1 of the Immigration and

Nationality Act ("INA"). At his hearing, Wilson admitted the

allegations against him but denied deportability, arguing that his3

conviction did not qualify as a conviction for immigr ation

purposes. The Immigration Judge followed the Board of Immigration

Appeals' ("BIA") decision in Matter of Ozkok, A-12150228, 1988 WL

235459 (BIA 1988), and concluded that Wilson's conviction was

sufficient for immigration and deportability purposes. On appeal

to the BIA, Wilson argued that the Ozkok conviction test was

invalid, and alte rnatively, Wilson alleged that his probationary

sentence did not meet the Ozkok conviction test. He also

challenged the finality of his conviction for immigration purposes.

The BIA reaffirmed the O zkok test and rejected Wilson's other

arguments. Wilson appeals from the BIA's decision, asserting

essentially the same arguments presented to the BIA.

II. STANDARD OF REVIEW

In reviewing challenges to the BIA's interpretation of a

statutory term, we apply a two-pronged standard of review. First,

we consider "the legal standard under which the INS should make the

particular deportability decision." A nimashaun v. INS, 9 90 F.2d

234, 237 (5th Cir.1993). If the governing statute does not clearly

speak to the question before the court, we have "upheld agency

interpretatio ns of ambiguous law when that interpretation is

reasonable." I d. (citing Chevron, U. S.A., Inc. v. National

Resources Defense Counsel, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984 )). As the Supreme Court has noted, "[w]e have

long recognized that considerable weight should be accorded to an

executive department's construction of a statutory scheme it is

entrusted to administer...." Chevron, 467 U.S. at 844, 104 S.Ct.4

at 2782.

After determining the controlling leg al standard, "we will

n ext examine the Board's findings under the substantial evidence

test to determine whether the legal standard has been satisfied."

Animashaun, 990 F.2d at 2 37. The substantial evidence standard

"requires only that the Board's conclusion be based u pon the

evidence presented and that it be substantially reasonable." Id.

III. ANALYSIS AND DISCUSSION

A. The Validity of the Ozkok Conviction Standard

Wilson contends that the conviction test announced in the

BIA's Ozkok decision is inapplicable because it is inconsi stent

with congressional intent and with the Supreme Court's decision in

Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955).

We disagree with both of these contentions, but we begin by

examining the background and the history of the Ozkok decision.

1. The foundations of Ozkok

In Matter of Ozkok, after "an extensive review of the relevant

case law, legislative history, and INS precedent, the BIA deviated

abruptly from l ong-standing INS and BIA precedent." M artinezMontoya v. INS, 904 F.2d 1018, 1021 (5th Cir.1990). Under the

narcotics violation provision of the INA, the BIA adopted a uniform

federal standard for defining "conviction," rather than retaining

a state-by-state standard. Specifically, the BIA stated that "we

shall consider a person convicted if the court has adjudicated him

guilty or has entered a formal judgment of guilt." O zkok, 1988 WL

at *4. "Where adjudication of guilt has been withheld," however,5

the Board in Ozkok stat ed that a conviction will be found for

immigration purposes when the following elements are present:

(1) a judge or jury has found the alien guilty or he has

entered a plea of guilty or nolo contendere or has admitted

sufficient facts to warrant a finding of guilty;

(2) the judge has ordered some form of punishment, penalty, or

restraint on the person's liberty to be imposed (including but

not limited to incarceration, pro bation, a fine or

restitution, or community-based sanctions ...); and

(3) a judgment or adjudication of guilt may be entered if the

person violates the terms of his probation or fails to comply

wit h the requirements of the court's order, without

availability of further proceedings regarding the person's

guilt or innocence of the original charge.

Id.

Wilson correctly points out that the Ozkok standard represents

a departure from the BIA's previous position, which required "the

action of the court [to be] considered a conviction by the state

for at least some purpose." Id. at *6-7 n. 4; Martinez-Montova,

904 F.2d at 1021. In articulating this new standard, the BIA noted

that the previous analytical framewor k was "too narrow and

undesirably subject to the vagaries of state law." M artinezMontoya, 904 F.2d at 1021; O zkok, 1988 WL at *3. According to the

BIA, "Congress did not intend for a narcotics violator to escape

deportation as a result of a technical erasure of his conviction by

a state." O zkok, 1988 WL at *3 (citing Matter of A—F—, 8 I & N

Dec. 429, 445-46 (BIA 1959)). The Attorney General noted "the

federal policy to treat narcoti cs offenses seriously," and the

Attorney General determined that "it would be inappropriate for an

alien's dep ortability for criminal activity to be dependent upon

"the vagaries of state law.' " O zkok, 1988 WL at *3 (quoting2 The statute states in the following relevant part:

What constitutes a conviction of such a crime shall be

determined in accordance with the law of the

jurisdiction in which the proceedings were held. Any

conviction which has been expunged, or set aside or for

which a person has been pardoned or has had civil

rights restored shall not be considered a conviction

for purposes of this chapter, unless such pardon,

expungement, or restoration of civil rights expressly

provides that the person may not ship, transport,

possess, or receive firearms.

18 U.S.C. § 921 (emphasis added).

6 Mat ter of A—F—, 8 I & N Dec. 429, 445-46 (BIA 1959)); s ee also

Yanez-Popp v. INS, 998 F.2d 231, 235 (4th Cir.1993) ("In Ozkok, the

Board considered Supreme Court and federal precedent in concluding

that Congress intended federal immigration laws to be uniform and

that previous interpretations of state "convictions' under varying

state laws for immigration purposes produced "anomalous and unfair

results.' ") (quoting Ozkok, 1988 WL at *3). Thus, in light of the

congressional resolve to combat our nation's drug pro blem and to

unify the conviction standard, the BIA in Ozkok adopted a federal

definition of "conviction."

2. Consistency with Congressional Intent

Wilson contends that the Firearms Owners' Protection Act 2

— an

amendment to a federal firearms statute—indicates that the federal

conviction standard in Ozkok is inconsisten t with congressional

intent. Wilson apparently believes that the enactment of this

amendment indicates that Congress intended for the term

"conviction" to hinge on whe ther the state considers the person

convicted for some purpose. In other words, according to Wilson,7

the Amendment reveals that Congress intended for the pre- O zkok

conviction standard to govern immigration law because that standard

required the action of the court to be considered a conviction by

the state for at least some purpose.

We believe that Wilson's interpretation of the f irearms

amendment is much too broad. On this point, we wholly agree with

the Fourth Circuit's analysis and discussion:

In Dickerson [ v. New Banner Institute, Inc., 460 U.S. 103, 103

S.Ct. 986, 74 L.Ed.2d 845], [ (1983) ] the Supreme Court held

that for purposes of federal gun control laws, the definition

of "conviction" was a question of federal law since there was

an absence of Congress' intent to the contrary. Congress

subsequently overruled Dickerson [in 18 U.S.C. § 921] by

requiring that a conviction be defined in accordance with the

laws in which the criminal proceedings are held. However, the

case still stands for the general proposition that federal law

governs the application of Co n gressional statutes in the

absence of a plain language to the contrary. By overruling

the holding in Dickerson, Congress merely provided the

contrary indicatio n that state, not federal law, applies in

interpreting the federal gun control statute. Here, Congress

has not overruled Ozkok with contrary legislation;

accordingly, Dickerson persuades us to adopt Ozkok 's holding

that for the purpose of the INA, federal, rather than state,

law is to define a "conviction."

Yanez-Popp, 998 F.2d at 236 (citations omitted) (emphasis added).

In other words, the firearms amendment mandates a state definition

of conviction only for the firearms statute that it amends. For

purposes of the INA, the amendment is ina pplicable, especially

because of the congressional policy t o treat narcotics offenses

seriously and to unify the deportability standards.

3. Pino v. Landon

Wilson also contends that the BIA's Ozkok decision effectively

overruled the Supreme Court's decision in Pino v. Landon, 349 U.S.

901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955). In P ino, an alien had8

been found guilty of petty larceny in Massachusetts district court.

See Pino v. Nicolls, 215 F.2d 237, 240 (1st Cir.1954). The court

f ound the defendant guilty, but it suspended his one-year prison

sentence and instead imposed probatio n for one year. S ee id. at

241. As the Seventh Circuit described:

Under a special Massachusetts procedure, upon the satisfactory

completion of his probation, his sentence was revoked and his

case was put "on file." The "on file" status meant that the

case remained on the records of the court but no further

action would normally be taken. However, it was theoretically

possible that the case could again be called up and a sentence

imposed, at which time the defendant-alien could appeal from

the sentence so imposed and secure a trial d e novo in the

Massachusetts superior court.

Will v. INS, 447 F.2d 529, 531 (7th Cir.1971) (describing the facts

of Pino ). The Pino court noted that "[p]lacing the case on file

was not equivalent to a revocation of the judicial determination of

Pino's guilt...." 215 F.2d at 244-45. The court subsequently held

that the "on file" status of Pino's conviction did not negate its

finality. S ee id. Significantly, however, the court also noted

that "in the interest of a uniform application of the federal

statute, the meaning of the word "convicted' is a federal

question...." Id. at 243.

In a brief per curiam opinion, the Supreme Court reversed the

holding of the First Circuit:

On the record here we are unable to say that the conviction

has attained such fin ality as to support an order of

deportation within the contemplation of § 241 of the

Immigration and Nationality Act. The judgment is reversed.

349 U.S. at 901, 75 S.Ct. at 576. Thus, it is clear that the

Supreme Court only addressed the finality of the conviction in

Pin o, and the Court expressed no disagreement with the First9

Circuit's characterization of "conviction" as a federal question.

Simply put, the decision of the BIA to apply a federal conviction

standard in Ozkok does not infringe at all, either explicitly or

implicitly, upon the Supreme Court's holding in Pino. See YanezPopp, 998 F.2d at 236 ("[N]owhere in the [ Pino ] decision did the

Court disapprove of the First Circuit's statement that "conviction'

was to be defined according to federal [and] not state law."). We

conclude that the validity of Ozkok is unaffected by the Supreme

Court's Pino decision.

4. Reasonableness of the Ozkok Standard

Simply put, we agree with the INS that Wilson's contentions

are without merit. Ozkok 's rule applying a federal "conviction"

standard rather than a state standa rd is reasonable and is

consistent with congressional intent and th e relevant case law.

Numerous other circuit courts agree. S ee, e.g., ParedesUrrestarazu v. INS, 36 F.3d 801, 811 n. 11 (9th Cir.1994) ("[T]he

meaning of the term "conviction' is a question of federal law");

Molina v. INS, 981 F.2d 14, 19 (1st Cir.1992) ("The federal

Constitution permits Congress to condition its immigration law upon

the absence of a "conviction' as federally defined."); C hong v.

INS, 890 F.2d 284, 285 (11th Cir.1989) ("The BIA was also correct

in not considering the F lorida expungement statute because this

court, other courts of appeals, and the BIA have expressly held

that the term "convicted' in the [INA] must be interpreted in

accordance with federal standards.") Y azdchi v. INS, 878 F.2d 166,

1 67 (5th Cir.1989) ("[T]he consequences which a state chooses to10

attach to a conviction in its courts for purposes of its own law

are for it to say; but they cannot control the consequences to be

given it in a deportation proceeding—a function of federal law.");

Aguilera-Enriquez v. INS, 516 F.2d 56 5, 570 (6th Cir.1975) ("The

definition of "convicted' ... is a matter of federal law, to be

interpreted in harmony with the policies underlying the Immigration

and Nationality Act."); W ill v. INS, 447 F.2d 529, 531 (7th

Cir.1971) ("W e must, however, agree with other circuits that

Congress intended the term "convicted' to be given meaning in light

of federal law and policies rather than on the basis of all the

peculiarities of the laws of the various states." (internal

quotation omitted)).

Moreover, the BIA has discretion to reinterpret the INA if it

employs a "reasoned analysis." R ust v. Sullivan, 500 U.S. 173,

187, 111 S.Ct. 1759, 1769, 114 L.Ed.2d 233 (1991). As the Supreme

Court noted:

[A] revised interpretation deserves deference because an

initial agency interpretation is not instantly carved in stone

and the agency, to engage in informal rulemaking, must

consider varying interpretations and the wisdom of its policy

on a continuing basis. An agency is not required to establish

rules of conduct to last forever, but rather must be given

ample latitude to adapt [its] rules and pol icies to the

demands of changing circumstances.

Id. at 186-87, 111 S.Ct. at 1769 (internal quotations omitted)

(citations omitted). Based on our own analysis and on the

deference that we accord to the BIA, we conclude that the O zkok

federal conviction standard is reasonable, and we will apply it in

the present case. S ee Martinez-Montoya, 904 F.2d at 1021 ("The

federal agency construction is to be upheld if it is reasonable and11

if it is not contrary to Congressional intent.").

B. Application of the Ozkok Standard

There is substantial evidence to affirm the BIA's conclusion

that Wilson is deportable under the Ozkok test. Wilson's arguments

regarding the satisfaction of the three Ozkok e lements are

misplaced and irrelevant, for the three-pronged test is only

applicable "[ w ]here adjudication of guilt has been withheld."

Ozkok, 1988 W L at *4. In this case, however, Wilson was not

sentenced under t he Texas deferred adjudication statute and

adjudication of guilt was not otherwise withheld. On the contrary,

Ozkok considers a person convicte d "if the court has adjudicated

him guilty or has entered a formal judgment of guilt." I d. These

conditions are satisfied in Wilso n's case, as his "Judgment"

explicitly st ated that he was "found and adjudged" guilty of

marijuana possession by the court; only his s entence was

suspended. Thus, there is substantial evidence to support the

BIA's conclusion that Wilson has been "convicted" for purposes of

the federal immigration laws.

C. Finality of the Conviction

Wilson also contends that his conviction had not achieved a

sufficient degree of finality during his probationary period.

According to Wilson, his conviction is not fi nal for deportation

purposes because his probation remained subject to modification or

revocation and because Texas probationers can appeal the revocation

of their probatio n. Once again, we disagree with Wilson's

contentions.12

As we noted in Martinez-Montoya, "[w]e trace the requirement

of finality back to the per curiam decis ion in P ino v. Landon. "

904 F.2d at 1025. Significantly, in Martinez-Montoya, we went on

to make the following observations:

The Pino opinion itself gives little indication as to the

degree of finality required. But what is crucial is that all

subsequent case authority has concluded that unless the alien

has exhausted or waived his rights to direct appeal or the

appeals period has lapsed the criminal proceeding is not

sufficiently final to constitute a conviction for immigration

purposes.

Id. at 1025. We adopted this framework for our "finality"

determination:

Under thi s overwhelming authority, and consistent with the

Ozkok dec ision, we conclude that, unless [petitioner] has

waived or exh austed his right to direct appeals, or the

appeals period has lapsed, he cannot be considered convicted

for immigration purposes.

Id. at 1026.

As mentioned, Wilson was not sentenced under a deferred

adjudication statute; rather, he was "found and adjudged" guilty

and his sentence was suspende d. Considering that Wilson's

"Judgment" of conviction was entered on July 15, 1988, his

thirty-day direct appeals period has clearly lapsed. S ee

Tex.R.App.P. 41(b)(1) ("Appeal is perfected when notice of appeal

is filed within thirty days a fter the day sentence is imposed or

suspended in open court or the day an appealable order is signed by

the trial judge....") (emphasis added). Wilson is simply wrong in

his contention that "the Texas procedure allows the d efendant to

appeal to the Court of Criminal Appeals for review of the trial and

conviction during the probationary period." The statute does13

provide that "[t]he right of the probationer to appeal to the Court

of Criminal Appeals for a rev iew of the trial and conviction, as

provided by law, shall be accorded the probationer at the time he

is placed on probation. " Tex.Rev.Civ.Stat.Ann. art. 42.12, § 8(b)

(Vernon 1979). As mentioned, however, Wilson was placed on

probation on July 15, 1988, and his statutory right of appeal

lapsed shortly thereafter.

Wilson's finality argument based on the ability to appeal a

revocation of probation is also unavailing. Simply put, Wilson's

probationary period has been completed; thus, the right to appeal

any modification or revocation of probation has lapsed and is

inapplicable. Furthermore, Wilson's reliance on the Will opinion

is misplaced, as that court agreed that a conviction is not final

only when "a direct appeal is pending"—a situation that does not

exist in Wilson's case. W ill, 447 F.2d at 533. In short, we agree

that Wilson's conviction has achi eved a sufficient degree of

finality for purposes of the federal immigration laws.

IV. CONCLUSION

For the foregoing reasons, the decision of the BIA in support

of deportability is AFFIRMED.