b"August 9, 1978\n\n78-44\n\nMEMORANDUM OPINION FOR THE GENERAL\nCOUNSEL, UNITED STATES WATER\nRESOURCES COUNCIL\nStatus of the Pacific Northwest River Basin\nCommission Under the Federal Unemployment Tax\nAct\n\nThis responds to your request for our opinion concerning the status of the\nPacific Northwest River Basin Commission (PNWRBC) under the Federal\nUnemployment Tax Act (FUTA), 26 U.S.C. \xc2\xa7 3301 et seq. We understand the\nsituation to be as follows: Pub. L. No. 94-566, 26 U.S.C. \xc2\xa7 3309, requires that\nStates provide unemployment compensation for State and local government\nemployees in order to qualify for Federal benefits under FUTA. It also\nauthorizes them to tax local governmental units for this purpose. The State of\nWashington has passed conforming legislation and contends that the PNWRBC\nis a taxable local governmental unit under State law. The Water Resources\nCouncil, on the contrary, contends that the PNWRBC is a \xe2\x80\x9c wholly or partially\nowned\xe2\x80\x9d Federal instrumentality exempt from State unemployment taxes under\n26 U.S.C. \xc2\xa7 3306(c)(6)(A).\nWhether the PNWBRC is exempted from State taxation under that provision\ndepends on whether its employees are eligible for unemployment compensation\nunder the Unemployment Compensation for Federal Employees Program\n(UCFE), 5 U.S.C. \xc2\xa7\xc2\xa7 8501 etseq'.^P ub. L. No. 94-566 was intended to extend\nunemployment compensation to State and local government employees.2 Its\nproponents understood that employees of the United States and wholly or\npartially owned Federal instrumentalities were already covered by UCFE; the\n\n'U C FE provides for paym ent o f unem ploym ent com pensation, at Federal expense, to \xe2\x80\x9c federal\nem ployees\xe2\x80\x9d as if their \xe2\x80\x9c federal service\xe2\x80\x9d has been em ploym ent covered by the unem ploym ent\ncom pensation law o f the State o f an em ployee\xe2\x80\x99s last duty station. See 5 U .S .C . \xc2\xa7\xc2\xa7 8502-8504. A\n\xe2\x80\x9c federal em ployee\xe2\x80\x9d includes, with exceptions not relevant here, a person \xe2\x80\x9c in the em ploy o f the\nUnited States o r an instrum entality which is wholly or partially ow ned by the U nited S tates.\xe2\x80\x9d 5\nU .S .C . \xc2\xa7 8501(1), (3). The language is identical to that in 26 U .S .C . \xc2\xa7 3306(c)(6)(A).\n2See S. Rept. 94-1265, 94th C o n g ., 2d sess., at 7-8; H. Conf. Rept. 94-1745, 94th C o n g ., 2d\nsess., at 11.\n\n177\n\n\x0cbill was meant to provide equivalent treatment for State and local employees.3\nTherefore, if PNWRBC employees are eligible for Federal benefits under\nUCFE, the State has no obligation under 26 U.S.C. \xc2\xa7 3309 to provide\nunemployment compensation for them and has no collateral authority to collect\nan unemployment tax from the Commission.\nThe UCFE program is administered by the Department of Labor (Labor). We\nrequested Labor\xe2\x80\x99s opinion on whether employees of the PNWRBC are eligible\nfor UCFE benefits. Labor has informed us that the PNWRBC \xe2\x80\x9c is covered by\nthe UCFE program as a partially-owned federal instrumentality.\xe2\x80\x9d Having\nreviewed Labor\xe2\x80\x99s ruling, we concur in its view of the status of the PNWRBC.\nAccordingly, it is our opinion that the Commission is exempted from the State\nof Washington\xe2\x80\x99s unemployment tax.\nL eon U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n>See 122 Cong. Rec. H. 7411-12 (July 20, 1976).\n\n178\n\n\x0c"


b'Recess Appointments Issues\n[The follow ing m em orandum reviews a num ber of legal and constitutional issues relating to the\nPresident\'s power to make appointm ents during a recess of the Senate, concluding that there have\nbeen no developm ents which call into question the conclusions of a I960 Attorney General\no p in io n ,41 O p A tt\xe2\x80\x99y G e n . 463. It also contrasts the language, effects and purposes o f the Pocket\nVeto and Recess Appointm ents Clauses.]\n\nOctober 25, 1982\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis is in response to your memorandum regarding the recess appointments\nissues. That memorandum\xe2\x80\x99s appendix, entitled \xe2\x80\x9c Legal Issues re: Recess Ap\xc2\xad\npointments,\xe2\x80\x9d addresses a number of questions which may arise with respect to\nappointments during the current Senate recess. The current recess is an intrases\xc2\xad\nsion recess of the second session of the 97th Congress of almost two months\nduration. The Senate adjourned on October 2, 1982 to a date certain, November\n29, 1982. See H. Con. Res. 421, 97th Cong., 2d Sess., 128 Cong. Rec. S I3410,\nand 128 Cong. Rec. D1325 (daily ed. Oct. 1, 1982). You have asked us to\n(a) confirm that there have been no developments that would call into question\nthe validity of the (Acting) Attorney General\xe2\x80\x99s 1960 opinion on recess appoint\xc2\xad\nments (41 Op. Att\xe2\x80\x99y Gen. 463), and (b) advise whether we see any problem with\nthe appendix\xe2\x80\x99s summary of the pertinent legal rules governing the exercise of\nrecess appointment authority under Article II, \xc2\xa7 2, clause 3 of the Constitution,\nand of the effects of the provisions of 5 U.S.C. \xc2\xa7 5503, setting limits on the\ncircumstances under which recess appointees may be paid.\nWith respect to your second question, we believe that the legal summary\ncontained in the appendix to your memorandum, in general, correctly states the\napplicable legal principles. As you note, the key provisions governing recess\nappointments are Article II, \xc2\xa7 2, clause 3 of the Constitution1 and 5 U.S.C.\n\n1Article II, \xc2\xa7 2. clause 3 provides.\nThe President shall have Power to fill up all Vacancies that may happen dunng the Recess of the\nSenate, by granting Commissions which shall expire at the End of their next Session.\n\n585\n\n\x0c\xc2\xa7 5503(1976).2 It has long been established that Article II, \xc2\xa7 2, clause 3 gives the\nPresident the power to fill vacancies by recess appointments both when the\nvacancies occur during the recess and when they existed prior to the recess but\nhad not been filled, either because a nomination had not been made or because a\nnominee had not been confirmed prior to the adjournment. 41 Op. Att\xe2\x80\x99y Gen. at\n465. However, as you note, \xc2\xa7 5503(a) prohibits payment of recess appointees if\nthe vacancies to which they are appointed existed while the Senate was in session,\nunless one of three conditions contained in that subsection is satisfied.\nWe agree that:\n1. Recess appointments may be made during extended intrasession recesses of\nthe Senate, like the present recess of well over 30 days duration, and such\nappointees may be paid under \xc2\xa7 5503 where that section\xe2\x80\x99s conditions are satis\xc2\xad\nfied. See 41 Op. Att\xe2\x80\x99y Gen. at 466-67, and the authorities cited therein. In this\nconnection, it is perhaps worth repeating a point made in the 1960 Attorney\nGeneral opinion. 41 Op. Att\xe2\x80\x99y Gen. at 472-73, n. 13. The Comptroller General\nhas interpreted \xc2\xa7 5503(a)(2) as prohibiting payment only where the person\nreceiving the recess appointment was already serving under a prior recess\nappointment. 52 Comp. Gen. 556,557 (1973); 3 6 Comp. Gen. 444(1956). Thus,\nif someone other than a prior recess appointee whose nomination was pending at\nthe time of adjournment is appointed, \xc2\xa7 5503(a)(2) does not bar payment.\n2. The prevailing view is that the language \xe2\x80\x9c next Session\xe2\x80\x9d in Article II, \xc2\xa7 2,\nclause 3 refers to the session following the adjournment sine die of the current\none. Thus, a recess appointment made during an intrasession recess expires upon\nthe adjournment sine die of the session of Congress which follows the adjourn\xc2\xad\nment sine die of the session during which the intrasession recess occurs. It\nfollows that, at least in the absence of a special session, recess appointments\nmade during the current recess (or prior recesses of the current session) would\nexpire when the first session o f the 98th Congress adjourned sine die. 41 Op.\nA tt\xe2\x80\x99y Gen. at 465. The Comptroller General has ruled that recess appointees may\nbe paid consistently with \xc2\xa7 5503 for the same period. 28 Comp. Gen. 30 (1948).\n3. In the event the 97th Congress were recalled for a special session after the\nadjournment sine die of its second session, an unsettled question might arise\n2 Section 5503(a) prohibits paying the salary of a recess appointee to an office required by law to be filled by and\nwith the advice and consent o f the Senate, where the vacancy in the office existed while the Senate was still in\nsession, unless one o f three conditions is met:\n(1) if the vacancy arose within 30 days before the end of the session of the Senate;\n(2) if, at the end o f the session, a nomination for the office, other than the nomination of an individual\nappointed during the preceding recess o f the Senate, was pending before the Senate for its advice and\nconsent; or\n(3) if a nomination for the office w as rejected by the Senate within 30 days before the end of the\nsession and an individual other than the one whose nomination was rejected thereafter receives a\nrecess appointment.\nSection 5503(b) requires a nomination to fill the office o f a recess appointee who has been paid under one of these\nthree exceptions to be submitted to the Senate within 40 days after the beginning of its next session.\nPresent 5 U .S .C . \xc2\xa7 5503 is the 1966codification of form er5 U .S.C. \xc2\xa7 56, 54 Stat. 751 (1940). See Pub. L. No.\n89 -5 5 4 , 80 Stat. 378, 475 (1966). The Senate and House reports both state simply that \xe2\x80\x9c [s]tandard changes are\nmade to conform with the definitions applicable and the style of this title as outlined in the preface to the report."\nH .R . Rep. No. 901, 89th C ong., IstSess. 85 (1965); S. Rep. No. 1380,89th Cong., 2d Sess. 105(1966). Thus, any\nchanges in wording since the times of the 1960 Attorney General opinion and the post-1940 Comptroller General\'s\nopinions w ould appear to have been made without any intention to make substantive changes.\n\n586\n\n\x0cwhether appointments made during the present election recess would expire at\nthe end of the special session, or at the end of the first session of the 98th\nCongress, i.e ., whether the \xe2\x80\x9c next Session\xe2\x80\x9d under Article II, \xc2\xa7 2, clause 3 was\nthe special session or the first session of the 98th Congress. A parallel unsettled\nquestion might arise with respect to their pay under \xc2\xa7 5503(a). We agree that a\nspecial session should probably be viewed as the \xe2\x80\x9c next Session\xe2\x80\x9d for purposes\nboth of the constitutional provision and \xc2\xa7 5503(a).\n4. Section 5503(b) requires the submission of a nomination to the Senate for\nany post filled by a recess appointment covered by \xc2\xa7 5503(a) \xe2\x80\x9c not later than 40\ndays after the beginning of the next session of the Senate.\xe2\x80\x9d The effect of a\nviolation of \xc2\xa7 5503(b) is to terminate the pay of the recess appointee. 52 Comp.\nGen. at 557-58. It remains unsettled whether the language \xe2\x80\x9c next session\xe2\x80\x9d in\n\xc2\xa7 5503(b) refers to a post-recess reconvening of the same Congress, or to the\nbeginning of the session of Congress which succeeds the adjournment sine die of\nthe current one. We agree that the safer course is to adhere to the advice of the\n1960 Attorney General opinion and submit nominations of recess appointees to\nthe Senate when it reconvenes after its intrasession election recess. See 41 Op.\nAtt\xe2\x80\x99y Gen. at 477.3We believe this is the safer course even though the post-recess\nsession of the Senate is likely to last less than 40 days, and it might plausibly be\nargued that compliance with \xc2\xa7 5503(b) is unnecessary where the Senate adjourns\nbefore the President is required to submit a nomination. If a nomination is\nsubmitted, no question can arise whether the recess appointee is entitled to be\npaid under \xc2\xa7 5503(b). If \xc2\xa7 5503(b) is violated, of course, a recess appointee may\ncontinue to serve, but cannot be paid after the 40th day following the beginning of\nthe next session until he is nominated and confirmed by the Senate, though his\nright to pay would relate back to the 41st day if he were so nominated and\nconfirmed. 52 Comp. Gen. at 558. As noted in the 1960 opinion, 41 Op. Att\xe2\x80\x99y\nGen. at 478-79, the Comptroller General has interpreted \xc2\xa7 5503(a)(2) as not\nterminating the pay of such subsequently nominated recess appointees prior to\nthe time they would otherwise have terminated. 28 Comp. Gen. 121 (1948). I.e .,\n\xc2\xa7 5503(b)(2) will not operate to terminate the pay of recess appointees when the\nSenate next adjourns after reconvening on November 29 as a result of submitting\ntheir nominations.\n5. Since the Senate adjourned to a date certain and not sine die existing recess\nappointments made prior to the current recess will continue to be valid through\nthe current recess. The adjournment sine die of the 97th Congress after it\nreconvenes on November 29, 1982, will terminate those existing recess appoint\xc2\xad\nments which were made prior to the beginning of the second session of the 97th\nCongress.\n6. When the Senate reconvenes on November 29, 1982, questions may arise\nwith respect to resubmission of the nominations of persons holding recess\nappointments. We agree that the better course is to submit the nominations of\n3 The 1960 Attorney General opinion recommends the submission of nominations for those who received recess\nappointments to vacancies which opened after the adjournment o f the Senate, even though \xc2\xa7 5503 does not cover\nthose appointments. 41 Op. A tt\xe2\x80\x99y Gen. at 478 n.21.\n\n587\n\n\x0cprior as well as current recess appointees after the Senate reconvenes in\nNovember unless there has been unanimous consent to suspend Standing Rule\nXXXI(6) of the Senate with respect to their nominations. Standing Rule XXXI(6)\nprovides:\nNominations neither confirmed nor rejected during the session\nat which they are made shall not be acted upon at any succeeding\nsession without being again made to the Senate by the President;\nand if the Senate shall adjourn or take a recess for more than thirty\ndays, all nominations pending and not finally acted upon at the\ntime of taking such adjournment or recess shall be returned by the\nSecretary to the President, and shall not again be considered\nunless they shall again be made to the Senate by the President.4\nOur search of the Congressional Record indicates that there was unanimous\nconsent to suspend the operation of that rule with respect to all but seven pending\nnominations.5 Resubmission o f the one recess nomination would avoid the risk\nthat \xc2\xa7 5503(b) might be interpreted to terminate his pay. Section 5503(a)(2) has\nbeen interpreted as not risking premature termination of the pay of recess\nappointees as a result of such submissions. See paragraph (5) supra and 41 Op.\nA tt\xe2\x80\x99y Gen. at 478\xe2\x80\x9479, citing 28 Comp. Gen. 121 (1948).\nWith respect to your first question, we agree that there have been no develop\xc2\xad\nments which call into question the validity of the pertinent conclusions in the\n1960 opinion of Acting Attorney General Walsh. As your memorandum notes,\nthe two intervening reported cases involving recess appointments are not incon\xc2\xad\nsistent with either the 1960 opinion or your appendix\xe2\x80\x99s summary.6 Also, two\nrecent cases challenging recess appointments made by President Reagan do not\ncast any doubt on the conclusions of your summary.7\n4 Senate Manual 1981, at pp. 58-59 (Senate Doc. No. 9 7 -1 )\n3 128 Cong. Rec. S13269 (daily ed. O ct. 1, 1982). Those seven nominations were\nHarvey J. Staszewski, Jr. To be a m em ber of the U .S. Metric Board; Frederic V. Malek, to be\nGovernor, U S Postal Service; John Van de Water to be Chairman of the National Labor Relations\nBoard; Wendy Borcherdt, to be D eputy Undersecretary for Intergovernmental and Interagency\nAffairs, Department of Education; an d . . Robert A. D e stro ,. . . Constantine Nicholas Dombahs,\n. . . and Guadalupe Quintanilla, to be . . Member[s] of the Commission on Civil Rights.\nOnly Mr. Van de Water was a recess appointment. 17 Weekly Comp Pres Doc. 883 (Aug 13, 1981)\n6 United States v. Allocco, 305 F2d 704 (2d Cir. 1962); Staebler v. Carter, 464 F Supp 585 (D D.C. 1979).\nIn the Staebler case, the District Court rejected a challenge to the recess appointment of his successor by a\nholdover m ember of the Federal Election Commission The Court stated, inter aha:\nThere is nothing to suggest that the Recess Appointments Clause was designed as some sort of\nextraordinary and lesser method o f appointment, to be used only in cases of extreme necessity.\n. . There is no justification for implying additional restrictions not supported by the constitutional\nlanguage.\nRecess appointments have traditionally not been made only in exceptional circumstances, but\nwhenever Congress was not in session\n464 F. Supp at 597.\nIn Allocco, the criminal defendant unsuccessfully challenged the recess appointment of his trial judge The\nSecond Circuit held that President Eisenhower had authority under the Recess Appointments Clause to fill the\ndistrict court vacancy which occurred two days before the Congress adjourned sine die on August 2, 1955. The\nCourt rejected the argument that the Recess Appointments Clause covers only vacancies wKich open during a recess\n305 F.2d at 709-15.\n7 Bowers v. Moffet, Civil Action No. 82-0195 (D .D .C . 1982), was dismissed voluntarily without opinion after\nJudge H art indicated that he intended to dismiss the case It involved, inter aha, a challenge to President Reagan\xe2\x80\x99s\nC o n tin u e d\n\n588\n\n\x0cWe also do not believe that thfe two recent pocket veto cases cast any doubt on\nour conclusions. These two cases, Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir.\n1974), and Kennedy v. Jones, 412F. Supp. 353 (D.D.C. 1976),8even if we agreed\nwith the legal conclusions contained in them, which we do not,9 would not call\ninto question the conclusion in the I960 Attorney General\xe2\x80\x99s opinion with respect\nto recess appointments. While the Pocket Veto and Recess Appointments Clauses\ndeal with similar situations, that is, the President\xe2\x80\x99s powers while Congress or the\nSenate is not in session, their language, effects and purposes are by no means\nidentical. First, the language of the two clauses differs significantly. The Pocket\nVeto Clause speaks of an adjournment of the Congress which prevents the return\nof a bill; the Recess Appointments Clause speaks of filling all vacancies during a\nrecess of the Senate. Had the two clauses been intended to cover the same\nsituation, it is reasonable to assume that they would have been worded more\nsimilarly. Even if \xe2\x80\x9c recess\xe2\x80\x9d and \xe2\x80\x9c adjournment\xe2\x80\x9d do not have clearly distinguisha\xc2\xad\nble meanings in the Constitution, an adjournment which prevents the return of a\nbill appears to be addressed to a different situation than is \xe2\x80\x9c a recess.\xe2\x80\x9d Second, the\neffects of a pocket veto and of a recess appointment are different. Legislation\nwhich is pocket vetoed can be revived only by resuming the legislative process\nfrom the beginning. A recess appointment, on the other hand, results only in the\nrecess appointment of Kenneth E. Moffet to be Federal Mediation and Conciliation Service Director on January 11,\n1982, dunng the intersession recess of the 97th Congress.\nM cC alpinv D ana, No. 82-0542 (D D.C. 1982). which was decided on cross motions for summary judgment in\nthe Distnct Court on O cto b ers, 1982, involved a challenge to President Reagan\xe2\x80\x99s appointments of seven members\nof the Board of the Legal Services Corporation, also during the intersession recess of the 97th Congress in December\nand January of 1981 Although the President nominated nine of the appointees after the Senate convened for the\nsecond session, none of them has been confirmed. The Legal Services Corporation Act provides for appointment of\nthe Board members by the President with the advice and consent of the Senate However, the Act contains no express\nprovision for recess appointments, and also provides that the Board members are not Officers of the United States\nThe Court concluded that the legislative history of the \xe2\x80\x9cAct reflects Congress\xe2\x80\x99 intent that the President should have\nno restraint imposed upon his power to make recess appointments to the LSC Board of Directors \xe2\x80\x9d McCalpin v\nDana, slip op at 5 Neither the statute\'s declaration that the LSC Board members are not Officers of the United\nStates nor congressional concern with the Board\'s political independence suggests a contrary conclusion:\nThe ability to make recess appointments is a very important tool in ensuring that there is a minimum\nof disruption in governmental operations due to vacancies in office.\n. and there is no reason to\nbelieve that the President\xe2\x80\x99s recess appointment power is less important than the Senate\'s power to\nsubject nominees to the confirmation process. In fact, the presence of both powers in the Constitution\ndemonstrates that the Framers of the Constitution concluded that these powers should co-exist. The\nsystem of checks and balances crafted by the Framers remains binding and strongly supports the\nretention of the President\'s power to make recess appointments\nId at 14 The Court went on to say that had such a restraint on the President\xe2\x80\x99s recess appointments power been\nintended it would have been of doubtful constitutionality under the functional analysis of Buckley v Valeo. 424 U.S.\n1, 124-43 (1976) (per curiam) Id. at 16.\n8 Kennedy v Sampson stated broadly that the Pocket Veto Clause of Article I. \xc2\xa7 7, clause 2 of the Constitution\ndoes not apply lo intrasession adjournments, however, the case involved a pocket veto made during an intrasession\nadjournment of only six days\xe2\x80\x99 duration In Kennedy v Jones the government entered into a consent judgment for the\nplaintiff in a case challenging the validity of two pocket vetoes: one, an intersession pocket veto, the other an\nintrasession pocket veto dunng an election recess of 31 days President Ford, at the time judgment was entered in the\nKennedy v. Jones case, announced publicly he would not invoke his pocket veto powers during intrasession or\nintersession recesses where the originating House of Congress had specifically authorized an officer or other agent to\nreceive return vetoes during such periods Department of Justice Press Release, Apr 13. 1976. President Reagan\nhas not made any similar announcement\nQLifetime Communities. Inc is seeking to litigate the validity of President Reagan\xe2\x80\x99s intersession pocket veto of\nH.R. 4353 on rehearing in its New York bankruptcy proceeding now pending before the Second Circuit. No.\n82-5505. Appellee. The Administrative Office of the U.S Courts, represented by the Civil Division of the\nDepartment of Justice, filed a response on September 27. 1982. agreeing that the newly raised pocket veto issue\nshould be reheard on the merits by the panel\n\n589\n\n\x0ctemporary filling of a position fo ra period prescribed by the clause itself. Finally,\nthe purposes of the clauses are different. The Pocket Veto Clause ensures that the\nPresident will not be deprived of his constitutional power to veto a bill by reason\nof an adjournment of Congress. The Recess Appointments Clause enables the\nPresident to fill vacancies which exist while the Senate is unable to give its advice\nand consent because it is in recess. In light of the different wording, effects, and\npurposes of the two clauses, we do not believe the pocket veto cases should be\nread as having any significant bearing on the proper interpretation of the Recess\nAppointments Clause.\nT h eo d o r e B. O lson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n590\n\n\x0c'


b"Proposed Legislation Providing Authority for the\nArmed Forces to Recover Remains of Persons Deceased\nas a Result of Armed Forces Operations\nC ongress\xe2\x80\x99 authority to m ake rules for the United States armed forces under the Constitution, art.\nI, \xc2\xa7 8, cl. 14, allow s it to enact legislation governing the recover of the remains of members of\nthe arm ed forces. Any grant to the armed forces o f jurisdiction over the remains of non\xc2\xad\nm ilitary persons killed as a result o f armed forces operational activities, however, may exceed\nC ongress\xe2\x80\x99 constitutional authority.\n\nFebruary 20, 1987\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nO f f ic e\n\nof\n\nA s s is t a n t A t t o r n e y G\n\neneral,\n\nL e g is l a t iv e A f f a ir s\n\nA proposed bill would give the armed forces \xe2\x80\x9cprimary jurisdiction to recover\nand examine the remains of (1) any member of an armed forces; or (2) any\nother person, .. . whose death is believed to have been the result of any\noperational activity of the armed forces.\xe2\x80\x9d According to the Department of\nDefense, at present:\n[Jurisdiction to recover the remains and investigate the death of\nany person generally rests with the government having jurisdic\xc2\xad\ntion over the location where the remains were found, regardless\nof the cause or suspected cause of death. In the United States,\nsuch jurisdiction generally rests with State or local govern\xc2\xad\nments, because Federal legislation has not preempted that right.\nConsequently, \xe2\x80\x9cthe armed forces are often denied, or are unable to obtain, the\nkind of information which could be obtained from full post-mortem examinations.\xe2\x80\x9d\nWe see no constitutional impediment to a statute giving the armed forces\nprimary jurisdiction over the remains of members of the armed forces. Such a\nstatute would seem to fall squarely within Congress\xe2\x80\x99 power under Article I, \xc2\xa7 8,\ncl. 14 of the Constitution \xe2\x80\x9c[t]o make Rules for the Government and Regulation\nof the land and naval Forces.\xe2\x80\x9d\nThe proposed bill, however, goes further. It potentially would preempt most\nstate authority over the remains of anyone who is believed to have been killed\nas a result of any military operations. Examples would include those killed as a\nresult of a military jet crashing in a residential area or those killed as a result of\npoisonous gas leaked from a military transport truck. The power to make rules\n22\n\n\x0cfor the armed forces does not extend this far. See Kinsella v. United States ex\nrel. Singleton, 361 U.S. 234 (1960). In that case, the Supreme Court rejected\nthe claim that Congress has power to subject civilians to court martial jurisdic\xc2\xad\ntion under Article I, \xc2\xa7 8, cl. 14, noting that power extends only to persons\nwhose \xe2\x80\x9cstatus . . . can be regarded as falling within the term \xe2\x80\x98land and naval\nForces.\xe2\x80\x99\xe2\x80\x9d Id. at 241 (emphasis in original). The Court continued:\nWithout contradiction, the materials furnished show that mili\xc2\xad\ntary jurisdiction has always been based on the \xe2\x80\x9cstatus\xe2\x80\x9d of the\naccused, rather than on the nature of the offense. To say that\nmilitary jurisdiction \xe2\x80\x9cdefies definition in terms of military \xe2\x80\x98sta\xc2\xad\ntus\xe2\x80\x99\xe2\x80\x9d is to defy the unambiguous language of Art. I, \xc2\xa7 8, cl. 14,\nas well as the historical background thereof and the precedents\nwith reference thereto.\nId. at 243 (footnote omitted).\n\nThe Necessary and Proper Clause does not enhance Congress\xe2\x80\x99 power to\nenact the proposed bill.1That Clause empowers Congress \xe2\x80\x9c[t]o make all Laws\nwhich shall be necessary and proper for carrying into Execution [Congress\xe2\x80\x99\nenumerated powers], and all other Powers vested by this Constitution in the\nGovernment of the United States, or in any Department or Officer thereof.\xe2\x80\x9d\nAlthough the Necessary and Proper Clause affords Congress wide latitude in\nthe choice of means to accomplish ends within the purview of its enumerated\npowers, see McCulloch v. Maryland 6, 17 U.S. (4 Wheat.) 316, 420 (1819), it\nconfers no additional substantive authority. Thus, if Congress\xe2\x80\x99 power under\nArticle I, \xc2\xa7 8, cl. 14 extends only to members of the land and naval forces, then\nthe Necessary and Proper Clause cannot be interpreted to give Congress the\npower to regulate civilians as a means of regulating the armed forces.2 This was\nthe conclusion of the Court in Kinsella, supra. Thus, after concluding that\nArticle I, \xc2\xa7 8, cl. 14 extends only to actual members of the armed forces, the\nCourt rejected the contention that the Necessary and Proper Clause authorizes\nCongress to \xe2\x80\x9cinclude civilian dependents within the term \xe2\x80\x98land and naval\nforces\xe2\x80\x99 as a proper incident to [the Article I, \xc2\xa7 8, cl. 14] power and necessary to\nits execution.\xe2\x80\x9d Id. at 247-48.3\n1It m ay, how ever, be possible to read C ongress' enum erated pow ers, in conjunction with the Necessary and\nProper C lause, to authorize the application o f certain m ilitary regulations to civilians who have voluntarily\nsubjected them selves to such regulation, such as the civilian pilot o f a chartered military flight. Unlike the\nregulation o f civilians generally, regulation o f such individuals m ay be necessary M[t]o raise and support\nA rm ies/\xe2\x80\x99 and \xe2\x80\x9c [t]o provide and m aintain a N avy.\xe2\x80\x9d\n2This is so even though as an adm inistrative m atter it may som etim es be difficult to distinguish between the\nremains o f those w ho are, and those who are not, m embers o f the arm ed forces. Although there may be an\nargument that a statute giving the m ilitary initial jurisdiction over remains in these more lim ited circum \xc2\xad\nstances w ould be constitutional, the bill as drafted is not so limited.\n3 N or can the statute be justified as a necessary and proper m eans o f carrying into execution \xe2\x80\x9c the executive\nPower\xe2\x80\x9d or that attendant to the President\xe2\x80\x99s role as \xe2\x80\x9cC om m ander in C h ie f\xe2\x80\x99 or any o f the other powers vested\n\xe2\x80\x9cin the G overnm ent o f the United States, o r in any Department o r O fficer thereof.\xe2\x80\x9d The D epartm ent of\nD efense does not reveal how the States* prim ary jurisdiction over the remains o f civilians killed as a result of\nm ilitary operations would affect the President\xe2\x80\x99s ability to exercise the executive power or to function as\nC om m ander in Chief.\n\n23\n\n\x0cTo be upheld, the proposed bill must be a proper exercise of one of Con\xc2\xad\ngress\xe2\x80\x99 other enumerated powers. Although the Supreme Court has interpreted\nthe Commerce Clause expansively, see Perez v. United States, 402 U.S. 146\n(1971); Daniel v. Paul, 395 U.S. 298 (1969); Wickard v. Filbum , 317 U.S. 111\n(1942), reliance on the commerce power in this instance presses even the\nextraordinary breadth of the commerce power found by the Supreme Court,\nand, in our view, disregards the enumerated power most relevant4 and in so\ndoing invades a core responsibility and prerogative of the States\xe2\x80\x99 reserved\npowers. Although we cannot say with confidence that the Court would refuse to\nuphold even this extraordinary measure as an appropriate exercise of the\ncommerce power, see Garcia v. San Antonio Metropolitan Transit Authority,\n469 U.S. 528 (1985), neither can we conclude that the bill would not exceed\nCongress\xe2\x80\x99 admittedly broad commerce power.\nUnder these circumstances, we do not believe it is appropriate for the\nadministration to propose legislation that requires Congress to rely on a virtu\xc2\xad\nally unlimited view of the commerce power. Therefore, we suggest that the bill\nbe redrafted to apply only to the remains of members of the armed forces.\nD o u g l a s W . K m ie c\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n4 T here is an additional consideration th a t is not w ithout force. If, as w e think. Congress is not em pow ered\nto preem pt the States* jurisdiction over th e remains o f civilians under the enum erated pow er m ost closely\nrelated to the purpose o f the b ill \xe2\x80\x94 the p o w e r to m ake rules governing the arm ed forces \xe2\x80\x94 then the commerce\npow er should not lightly be interpreted to circum vent the lim itation inherent in the delegation o f that power.\nF or exam ple. A rticle I, \xc2\xa7 8, cl. 4 em pow ers Congress \xe2\x80\x9c [t]o establish . . . uniform Law s on the subject of\nB ankruptcies throughout the United S ta te s.\xe2\x80\x991 This pow er does not authorize Congress to enact private\nb ankruptcy law s. See Railway Labor Executives' Ass'n v. Gibbons, 455 U .S. 457 (1982). Thus, it w ould be\nlegally q u estio n ab le to interpret the C om m erce C lause to authorize C ongress to enact nonuniform bankruptcy\nlaws.\n\n24\n\n\x0c"


b'Effective Date of the Reporting Requirement Imposed by the\nMultinational Force in Lebabon Resolution\nThe three-month reporting requirement im posed by \xc2\xa7 4 of the Multinational Force in Lebanon\nResolution (Lebanon Resolution) commenced as of the date o f enactm ent of that Resolution,\nOctober 12, 1983. The specification in \xc2\xa7 4 of the Lebanon Resolution that reports should be\nmade \xe2\x80\x9c [a]s required by section 4(c) of the W ar Powers Resolution\xe2\x80\x9d is intended to incorporate\nonly the reporting obligation, not the timing mechanism, set forth in the War Powers Resolution.\n\nDecember 21, 1983\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nC oun sel\n\nto th e\n\nP r e s id e n t\n\nThis confirms our oral advice to you in response to your request for our\nviews on when the President must submit to Congress the first of the periodic\nreports on the situation in Lebanon that are required by \xc2\xa7 4 of the Multinational\nForce in Lebanon Resolution, S.J. Res. 159 (Oct. 12,1983) (\xe2\x80\x9cLebanon Resolu\xc2\xad\ntion\xe2\x80\x9d). That section requires the President to submit certain information to\nCongress on the situation in Lebanon \xe2\x80\x9cas required by section 4(c) of the War\nPowers Resolution [50 U.S.C. \xc2\xa7 1543(c)]. . . but in no event shall he report less\noften than once every three months.\xe2\x80\x9d In full text, the section reads as follows:\nAs required by section 4(c) of the War Powers Resolution, the\nPresident shall report periodically to the Congress with respect\nto the situation in Lebanon, but in no event shall he report less\noften than once every three months. In addition to providing the\ninformation required by that section on the status, scope, and\nduration of hostilities involving United States Armed Forces,\nsuch reports shall describe in detail \xe2\x80\x94\n(1) the activities being performed by the Multinational\nForce in Lebanon;\n(2) the present composition of the Multinational Force in\nLebanon, including a description of the responsibilities and\ndeployment of the armed forces of each participating country;\n(3) the results of efforts to reduce and eventually eliminate\nthe Multinational Force in Lebanon;\n(4) how continued United States participation in the Multi\xc2\xad\nnational Force in Lebanon is advancing United States foreign\npolicy interests in the Middle East; and\n197\n\n\x0c(5)\nwhat progress has occurred toward national political\nreconciliation among all Lebanese groups.\nFor the reasons discussed below, we conclude that the three-month reporting\nrequirement set forth in the Lebanon Resolution began to run upon enactment\nof the Resolution on October 12,1984, and therefore the first report will be due\nthree months from that date, on January 12, 1984.1\nThe Lebanon Resolution does not expressly state that the three-month re\xc2\xad\nporting period commences on a particular date. Therefore, we would ordinarily\nconclude that the reporting period would commence as of the date of enactment\nof the Resolution. See generally United States v. Commonwealth Auto Sales,\nInc., 463 F. Supp. 12, 13 (M.D. Pa. 1978). However, because \xc2\xa7 4 specifies that\nthe reports should be made \xe2\x80\x9cas required by the War Powers Resolution,\xe2\x80\x9d and\nCongress in \xc2\xa7 2(b) of the Lebanon Resolution purported to \xe2\x80\x9cdetermine . . . that\nthe requirements of section 4(a)(1) of the War Powers Resolution became\noperative on August 29,1983,\xe2\x80\x9d we must look at the question more closely.\nSection 4(c) of the War Powers Resolution requires that, \xe2\x80\x9cwhenever United\nStates Armed Forces are introduced into hostilities or into any situation de\xc2\xad\nscribed in subsection (a) of this section, the President shall . . . report to the\nCongress periodically on the status of such hostilities or situation as well as on\nthe scope and duration of such hostilities, but in no event shall he report to the\nCongress less often than once every six months.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1543(c).2 As\nindicated in note 1, supra, Senator Byrd has taken the position that the threemonth period imposed by \xc2\xa7 4 of the Lebanon Resolution began to run on\nAugust 29, 1983. This position appears to be based on the argument that the\n1The occasion fo r y our request is a letter to the President from Senator B yrd o f December 5 ,1983, in which\nS enato r Byrd takes the position that the three-m onth period specified in the Lebanon Resolution began to run\non A ugust 29, 1983, rather than on O cto b er 12, 1983. W e note that pursuant to the President\'s letter to\nSpeaker O \xe2\x80\x99N eill o f O ctober 19, 1983, in w hich the President stated his intention to submit the reports\nrequired by S.J. Res. 159 \xe2\x80\x9c no less frequently than once ev ery sixty days,\xe2\x80\x9d a report dated D ecem ber 14, 1983\nwas transm itted to the S p eak er and the P resident pro tempore o f the Senate by the President. A lthough not\ndirectly relevant to the point at issue, we o b serv e that if Sen ato r B yrd\'s interpretation o f \xc2\xa7 4 of S.J. Res. 159\nw ere correct, then the first report would h a v e been due, under the P resident\'s O ctober 19, 1983 letter, on\nO ctob er 27, only tw o w eeks after S J. Res. 159 became law. Thus, according to Senator B yrd\'s interpretation,\nthe President w ould presum ably be viewed b y the Speaker as having failed to honor his intention, expressed\non O ctober 19, to report at sixty-day intervals. However, if S peaker O \'N eill had understood the President to\nhave prom ised the first report by October 2 7 , it must be assum ed that the Speaker would have expressed his\nconcern shortly after O ctober 27. We are unaw are that any such concern has been expressed.\n2 The situations described by subsection (a ) include any case in which United States Armed Forces are\nintroduced, in the absence o f a declaration o f war, \xe2\x80\x94\n(1) into hostilities o r into situations where im m inent involvem ent in hostilities is clearly\nindicated by the circum stances;\n(2) into the territory, airspace or w aters o f a foreign nation, while equipped for com bat, except\nfo r deploym ents w hich relate solely to supply, replacem ent, repair, o r training o f such forces; or\n(3) in num bers w hich substantially enlarge U nited States Armed Forces equipped for combat\nalready located in a foreign nation.\n50 U .S.C . \xc2\xa7 1543(a). W e note that neither \xc2\xa7 1543(a) nor \xc2\xa7 1543(c) requires that the President specify the\nsubsection under w hich inform ation is b e in g provided. Reports to C ongress, which have generally been\ncharacterized as \xe2\x80\x9cconsistent w ith\xe2\x80\x9d the W ar Pow ers R esolution, have traditionally not specified the subpara\xc2\xad\ngraph o f subsection (a) that m ay arguably have been triggered by the particular facts and circum stances\ninvolved.\n\n198\n\n\x0clanguage in that section, \xe2\x80\x9c[a]s required by section 4(c) of the War Powers\nResolution,\xe2\x80\x9d expresses a congressional intent that the three-month reporting\nperiod began to run on August 29, 1983, the date recited by Congress in \xc2\xa7 2(b)\nof the Lebanon Resolution as the operative date on which, according to the\nCongress, \xc2\xa7 4(a)(1) of the War Powers Resolution was triggered with respect to\nLebanon.3 Under this interpretation, the first report on the situation in Lebanon\nwould have been due on November 29, 1983.\nThis interpretation of the Lebanon Resolution assumes that the reporting\nrequirement imposed by \xc2\xa7 4 of the Resolution was not intended to be an\nindependent obligation imposed in the context of the compromise worked out\nbetween the Executive and Legislative Branches, but rather was intended only\nto supplement \xc2\xa7 4(c) of the War Powers Resolution by requiring \xc2\xa7 4(c) reports\nto include certain additional categories of information and to be submitted at\nthree-month, rather than six-month, intervals.\nWe believe, however, that the reporting obligation imposed by \xc2\xa7 4 of the\nLebanon Resolution must be interpreted in light of the full text, background,\nand legislative history of that Resolution. Seen in context, we believe the threemonth reporting requirement stands alone as an independent reporting obliga\xc2\xad\ntion imposed with respect to the situation in Lebanon, an obligation linked\ndirectly to the eighteen-month authorization by the Lebanon Resolution for\nparticipation of United States Armed Forces in the Multinational Force in\nLebanon.\nWe reach this conclusion for several reasons. First, we observe that the\nauthority provided by \xc2\xa7 6 of the Lebanon Resolution for the participation of\nUnited States Armed Forces in the Multinational Force in Lebanon extends for\nan eighteen-month period commencing with the date of enactment of the\nResolution.4 Thus, at the only point in the Lebanon Resolution at which\nCongress specifically focused on the commencement of a time period, Con\xc2\xad\ngress chose to have the time period commence on the date of enactment of the\nResolution itself. Congress could, of course, have chosen to commence the\neighteen-month authorization as of August 29, but it did not do so. We believe\nit is both logical and reasonable to conclude that Congress contemplated that\nthe reports to be submitted pursuant to the terms of the Lebanon Resolution\nwould be submitted in phase with the eighteen-month authorization \xe2\x80\x94 i.e., at\nthree-month intervals at the end of the third, sixth, ninth, twelfth, fifteenth, and\neighteenth months of the authorization.\nSecond, there is no suggestion in the congressional debates or reports ac\xc2\xad\ncompanying enactment of the Lebanon Resolution that Congress intended the\nthree-month period to run from August 29, 1983. We have been unable to\n3 We note that in signing S.J. Res. 159 into law, the President specifically stated that he did not \xe2\x80\x9cnecessarily\njoin in or agree w ith\xe2\x80\x9d some expressions o f Congress in that Resolution, including \xe2\x80\x9cthe congressional\ndeterm ination that the requirem ents o f section 4(a)(1) o f the W ar Powers Resolution becam e operative on\nAugust 29, 1983.\xe2\x80\x9d\n4 In signing S.J. Res. 159 into law , the President stated that \xc2\xa7 6, providing an eighteen-m onth authorization\nfor deploym ent o f U nited States Armed Forces in Lebanon, should not \xe2\x80\x9cbe interpreted to revise the President\xe2\x80\x99s\nconstitutional authority to deploy U nited States Armed Forces.\xe2\x80\x9d\n\n199\n\n\x0clocate in that legislative history any specific discussion of when the periodic\nreporting requirement with respect to Lebanon would commence. Debate over\nthe reporting requirement focused only on the length of the interval between\nreports. Draft resolutions in both the House and Senate initially provided for a\nsix-month reporting period but, because of concerns about the volatility of the\nsituation in Lebanon and the perceived need for more frequent information,\nboth Houses agreed upon a three-month reporting period. See, e.g., S. Rep. No.\n242, 98th Cong., 1st Sess. 9-10 (1983); 129 Cong. Rec. 26036 (1983) (remarks\nof Senator Mathias); id. at 26145 (1983) (text of H.R.J. Res. 364); id. at 26494\n(1983) (remarks of Rep. Zablocki). These congressional discussions concern\xc2\xad\ning the reporting period do not suggest in any way that the commencement of\nthe period would be triggered as of the date Congress \xe2\x80\x9cdetermined\xe2\x80\x9d in the same\nresolution that \xc2\xa7 4(a)(1) of the War Powers Resolution had been triggered \xe2\x80\x94\ni.e., as of August 29, 1983 \xe2\x80\x94 rather than as of the date of enactment of the\nResolution.\nThird, the language of early House and Senate draft resolutions that would\nhave imposed a six-month reporting period suggests strongly that Congress did\nnot contemplate that its determination regarding the operative date for trigger\xc2\xad\ning of the War Powers Resolution, August 29, 1983, would also commence the\nrunning of the time for the reporting requirement imposed by the Lebanon\nResolution. Those drafts provided, in much the same language as was ulti\xc2\xad\nmately used in S.J. Res. 159, that the reports were to be submitted \xe2\x80\x9c[a]s\nrequired by section 4(c) of the War Powers Act . . . but in no event shall he\nreport less often than once every six months." See 129 Cong. Rec. 26145\n(1983) (text of H.R.J. Res. 364); S. Rep. No. 242, supra, at 30-31 (text of S.J.\nRes. 166) (emphasis added). If the drafters had intended that the time for\nsubmission of reports under the proposed Lebanon Resolution would begin to\nrun on August 29, it would not have been necessary to specify that the reports*\nbe submitted at six-month intervals, since that requirement was already pro\xc2\xad\nvided in \xc2\xa7 4(c) of the War Powers Resolution, and the language imposing the\nsix-month requirement therefore would have been completely superfluous.5\nWhat Congress must have contemplated was that the six-month period, later\nreduced to three months, would commence at the same time as the eighteenmonth authorization.\n5 It could, o f course, be argued that this six-m onth requirem ent was inadvertently included in bills such as\nH .R .J. Res. 364 by drafters unaware that \xc2\xa7 4(c) o f the W ar Pow ers R esolution already required semiannual\nrepo rtin g . H ow ever, it m ust b e remembered that H.R.3. Res. 3 6 4 was authored by the late Chairm an Zablocki\no f the H ouse C o m m ittee on Foreign A ffairs, who was also a prim e d rafter and sponsor o f the W ar Powers\nR esolution in 1973. C hairm an Zablocki\'s introductory rem arks explaining the provisions o f H.R.J. Res. 364\nto his co lleag u es on the floor o f the H ouse on Septem ber 2 8 , 1983, m ake quite clear that he viewed the\nreporting requirem ent o f H .R .J. Res. 364, w hich w as then a six-m onth requirem ent, as independent from the\nreporting oblig atio n im posed by \xc2\xa7 4(c) o f the W ar Pow ers Resolution. He stated that H.R.J. Res. 364\n\xe2\x80\x9c [r]equires a sem iannual reporting requirem ent on the status, scope and d uration o f hostilities involving U.S.\nforces.\xe2\x80\x9d 129 C ong. Rec. 26112 (1983). T o accept Senator B y rd \xe2\x80\x99s suggested reading o f the Lebanon Resolu\xc2\xad\ntion w ould require us to conclude that C hairm an Zablocki did not understand the terms o f \xc2\xa7 4(c) o f the W ar\nPow ers R esolution, and to disregard this im portant evidence o f congressional intent, neither o f which we are\nprepared to do.\n\n200\n\n\x0cOur interpretation does not render superfluous the language \xe2\x80\x9c[a]s required\nby section 4(c) of the War Powers Resolution\xe2\x80\x9d used in \xc2\xa7 4 of the Lebanon\nResolution. That language can reasonably be understood to incorporate by\nreference the substantive obligation set forth in \xc2\xa7 4(c) of the War Powers\nResolution for the submission of reports on the status, scope, and duration of\nhostilities described in \xc2\xa7 4(a) of the War Powers Resolution. It need not\nnecessarily \xe2\x80\x94 and we believe should not \xe2\x80\x94 be interpreted to incorporate, in\naddition, the timing mechanism of the War Powers Resolution. Moreover, \xc2\xa7 4\nof the Lebanon Resolution actually reiterates those substantive requirements of\n\xc2\xa7 4(c) of the War Powers Resolution, which we believe is further evidence of\nCongress\xe2\x80\x99 intent that \xc2\xa7 4 of the Lebanon Resolution be a separate, independent\nreporting requirement tailored to the unique circumstances of the situation in\nLebanon.6\nFinally, we believe that directly linking the specific reporting requirement\nimposed by \xc2\xa7 4 of the Lebanon Resolution to the date determined by Congress\nto be the operative date for invocation of the War Powers Resolution would\nthreaten to undercut the compromise reached by the Executive and Legislative\nBranches on the underlying constitutional controversy surrounding application\nof the War Powers Resolution to the situation in Lebanon. We view the\nreporting requirement imposed with respect to Lebanon to be part of that\noverall compromise, which was engineered to avoid perhaps irreconcilable\nconflict between those Branches in the context of an ongoing crisis. Given this\nbackground, and in the absence of any persuasive language or legislative\nhistory to the contrary, we conclude that the three- month reporting require\xc2\xad\nment imposed by \xc2\xa7 4 of the Lebanon Resolution commenced as of the date of\nenactment of that Resolution, October 12, 1983.\nT h eo d o re B. O lso n\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n6 W e note in this regard that the legislation at issue here was truly unique in that no sim ilar legislation had\never been considered and adopted by Congress since the enactm ent o f the W ar Powers R esolution in 1973.\n\n\x0c'


b'Treatment of Expunged State Convictions Under the\nImmigration and Nationality Act\nUnder the definition of \xe2\x80\x9cconviction\xe2\x80\x9d contained in the Immigration and Nationality Act, for a conviction\nnot involving a first-time simple possession of narcotics, an alien remains convicted, and thus\nremovable under the Act, notwithstanding a subsequent state action to vacate or set aside the\nconviction that does not reflect a judgment about the merits of the underlying adjudication of guilt.\n\nJanuary 18, 2005\n\nOPINION IN DEPORTATION PROCEEDINGS\nThe Board of Immigration Appeals (\xe2\x80\x9cBIA\xe2\x80\x9d or \xe2\x80\x9cBoard\xe2\x80\x9d) referred its decision in\nthis matter for my review pursuant to 8 C.F.R. \xc2\xa7 3.1(h)(1)(ii) (1997). 1 In its decision,\nthe BIA determined that a new federal definition of \xe2\x80\x9cconviction\xe2\x80\x9d did not undermine\nAttorney General precedent that held that a person convicted of a firearms offense\nunder state law is not subject to deportation under section 241(a)(2)(C) of the\nImmigration and Nationality Act (\xe2\x80\x9cINA\xe2\x80\x9d), 8 U.S.C. \xc2\xa7 1251(a)(2)(C) (1994), 2 if that\nconviction has been subsequently \xe2\x80\x9cexpunged.\xe2\x80\x9d Pending my decision, the BIA\nreversed itself and concluded that the new federal definition of \xe2\x80\x9cconviction\xe2\x80\x9d means\nthat an alien remains convicted notwithstanding a subsequent state action to expunge\nthe conviction. In re Roldan, 22 I. & N. Dec. 512, 523 (B.I.A. 1999). The Ninth\nCircuit subsequently reversed the BIA\xe2\x80\x99s decision in Roldan with respect to aliens\nconvicted of first-time drug possession offenses under state law. Lujan-Armendariz\nv. INS, 222 F.3d 728, 750 (9th Cir. 2000). The Ninth Circuit\xe2\x80\x99s decision does not\naffect the applicability of Roldan to firearms offenses, but, in light of the Ninth\nCircuit\xe2\x80\x99s decision, I find it appropriate to certify the Board\xe2\x80\x99s decision and set forth\nclearly the Executive Branch\xe2\x80\x99s interpretation of the relevant statute.\nFor the reasons stated below, I find that the new federal definition of \xe2\x80\x9cconviction\xe2\x80\x9d means that for a conviction not involving first-time simple possession of\nnarcotics, an alien remains convicted, and thus removable under current section\n237 of the INA, notwithstanding a subsequent state action to vacate or set aside the\nconviction. The BIA\xe2\x80\x99s decision is reversed and remanded.\n\n1\n\nNow 8 C.F.R. \xc2\xa7 1003.1(h)(1)(ii) (2004).\nAfter the initial deportation order was entered in this matter, former section 241 of the Immigration and Nationality Act was redesignated as section 237 by section 305(a)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546,\n3009-598. The redesignated provision has been codified, with modifications that are not relevant here,\nas section 1227 of title 8, U.S. Code.\n2\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nI.\nA.\nErick Marroquin-Garcia entered the United States without inspection in 1980.\nHe adjusted to the status of lawful permanent resident alien pursuant to section\n245A of the INA in December of 1989. See 8 U.S.C. \xc2\xa7 1255a (1994). He pleaded\nguilty to unlawful possession of a firearm under California law on October 22,\n1990. He was convicted in state court and placed on five years\xe2\x80\x99 probation. The\nstate court ordered, as conditions of probation, that Marroquin-Garcia spend 365\ndays in the county jail and pay $100 restitution and the costs of his probation. In re\nMarroquin, A90 509 015, slip op. at 2 (B.I.A. Feb. 21, 1997).\nThe Immigration and Naturalization Service (\xe2\x80\x9cINS\xe2\x80\x9d) instituted deportation\nproceedings against Marroquin-Garcia on the basis of his state firearms conviction. On September 13, 1994, an immigration judge ordered Marroquin-Garcia\ndeportable pursuant to what was then section 241(a)(2)(C) of the INA. See\nMarroquin at 2. At that time, section 241(a)(2)(C) of the INA stated in pertinent\npart that \xe2\x80\x9c[a]ny alien who at any time after entry is convicted under any law of\npurchasing . . . possessing, or carrying . . . any weapon, part, or accessory, which\nis a firearm or destructive device (as defined in section 921(a) of title 18) in\nviolation of any law is deportable.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1251(a)(2)(C) (1994).\nDuring the pendency of his appeal to the BIA, Marroquin-Garcia filed a motion\nin the Superior Court for the County of Los Angeles for relief pursuant to section\n1203.4(a) of the California Penal Code. Section 1203.4(a) provides, inter alia, that\n[i]n any case in which a defendant has fulfilled the conditions of\nprobation for the entire period of probation, or has been discharged\nprior to the termination of the period of probation, or in any other\ncase in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under\nthis section, the defendant shall, at any time after the termination of\nthe period of probation, if he or she is not then serving a sentence for\nany offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or\nher plea of guilty or plea of nolo contendere and enter a plea of not\nguilty . . . [and] the court shall thereupon dismiss the accusations or\ninformation against the defendant and except as noted below, he or\nshe shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.\nThe Superior Court granted Marroquin-Garcia\xe2\x80\x99s motion for relief under this\nexpungement statute on December 18, 1994, and ordered Marroquin-Garcia\xe2\x80\x99s\n\n2\n\n\x0cTreatment of Expunged State Convictions Under the INA\n\n\xe2\x80\x9cfelony charge reduced . . . to a misdemeanor,\xe2\x80\x9d his plea of guilty set aside and\nvacated, and the complaint against him dismissed. Marroquin at 2.\nRelying on the BIA\xe2\x80\x99s decision in In re Luviano, 21 I. & N. Dec. 235 (B.I.A.\n1996), Marroquin-Garcia argued on appeal to the BIA that the expungement of his\nconviction meant that he had not been \xe2\x80\x9cconvicted\xe2\x80\x9d for purposes of section\n241(a)(2)(C) of the INA. As discussed more fully below, the BIA had held in\nLuviano that prior Attorney General opinions compelled the conclusion that an\nalien whose conviction for a non-narcotics-related offense had been expunged\npursuant to section 1203.4(a) of the California Penal Code had not been \xe2\x80\x9cconvicted\xe2\x80\x9d for purposes of section 241(a)(2)(C) of the INA. 21 I. & N. Dec. at 237 (citing\nIn re Ibarra-Obando, 12 I. & N. Dec. 576 (B.I.A. 1966; A.G. 1967)); In re G\xe2\x80\x93,\n9 I. & N. Dec. 159 (B.I.A. 1960; A.G. 1961). At the time the BIA was deciding\nMarroquin, the Board\xe2\x80\x99s decision in Luviano was pending before the Attorney\nGeneral. In light of a new federal definition of \xe2\x80\x9cconviction,\xe2\x80\x9d enacted in section\n322(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of\n1996 (\xe2\x80\x9cIIRIRA\xe2\x80\x9d), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628, the BIA\ndecided Marroquin-Garcia\xe2\x80\x99s appeal rather than wait for the Attorney General\xe2\x80\x99s\ndecision in Luviano. In Marroquin, the BIA concluded that the new federal\ndefinition of conviction did not affect the Board\xe2\x80\x99s decision in Luviano and\ntherefore that decision was still controlling. Hence, the BIA found MarroquinGarcia could not be deported based on the firearms offense. Marroquin at 6.\nBefore addressing the merits of the Board\xe2\x80\x99s decision, I will first review the\nrelevant history of this issue in greater detail.\nB.\nPrior to the enactment of the new federal statutory definition, the INA did not\ndefine \xe2\x80\x9cconviction.\xe2\x80\x9d The federal courts, the Attorney General, and the BIA were\ntherefore provided with little legislative guidance as to how to interpret the\nstatutory provisions that subjected to deportation those persons who had been\n\xe2\x80\x9cconvicted\xe2\x80\x9d of certain types of offenses. Two distinct lines of Attorney General\nprecedent developed that addressed the effect of an expungement on a conviction\nthat would otherwise provide a basis for an order of deportation under the federal\nimmigration laws. Before discussing these lines of precedent, however, I must\nclarify the term \xe2\x80\x9cexpungement.\xe2\x80\x9d Throughout this opinion I will use the term\nexpungement to refer to the process of clearing a defendant\xe2\x80\x99s record of a prior\nconviction. This expungement is achieved generally through two means: either a\nstatute permits a deferred adjudication of a conviction such that a judgment is\nnever entered, or a court vacates or sets aside a judgment of conviction from the\nbooks under a rehabilitative statute. As the Ninth Circuit has described the\ndifference,\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\n[under a] \xe2\x80\x9cvacatur\xe2\x80\x9d or \xe2\x80\x9cset-aside\xe2\x80\x9d [statute], a formal judgment of\nconviction is entered after a finding of guilt, but then is erased after\nthe defendant has served a period of probation or imprisonment and\nhis conviction is ordered dismissed by the judge. . . . [Under a] \xe2\x80\x9cdeferred adjudication\xe2\x80\x9d [statute], no formal judgment of conviction or\nguilt is ever entered. Instead, after the defendant pleads or is found\nguilty, entry of conviction is deferred, and then during or after a period of good behavior, the charges are dismissed and the judge orders\nthe defendant discharged.\nLujan-Armendariz v. INS, 222 F.3d 728, 735 n.11 (9th Cir. 2000).\nReturning to the Attorney General precedents, first, there were Attorney General decisions that held that aliens who had been convicted of what section\n241(a)(4) of the INA termed \xe2\x80\x9ccrimes of moral turpitude,\xe2\x80\x9d such as forgery or fraud,\nwere not subject to deportation if their convictions had been expunged. See IbarraObando, 12 I. & N. Dec. 576; In re G\xe2\x80\x93, 9 I. & N. Dec. 159. Second, there was an\nAttorney General decision that held that aliens who had been convicted of what\nsection 241(a)(11) termed \xe2\x80\x9cnarcotics offenses,\xe2\x80\x9d such as the distribution of\nmarijuana, were subject to deportation even if their conviction had been expunged.\nSee In re A\xe2\x80\x93F\xe2\x80\x93, 8 I. & N. Dec. 429 (B.I.A., A.G. 1959). 3 In 1970, Congress carved\nout a narrow exception for simple federal possession offenses when it enacted the\nFederal First Offender Act (\xe2\x80\x9cFFOA\xe2\x80\x9d). The FFOA applies only to first-time drug\noffenders who are guilty only of simple possession. It expunges such convictions\n(after the successful completion of a probationary period) and was intended to\nlessen the harsh consequences of certain drug convictions, including their effects\non deportation proceedings. Under the FFOA, no legal consequences may be\nimposed following expungement as a result of the defendant\xe2\x80\x99s former conviction.\n18 U.S.C. \xc2\xa7 3607 (2000). After considering the effect of the FFOA, the BIA\nannounced an exception to the holding of In re A\xe2\x80\x93F\xe2\x80\x93, finding that a first-time\nsimple drug possession offender, whose conviction was set aside pursuant to a\nstate statute, would not be deported if he or she would have been eligible for\ntreatment under the FFOA had the charges been filed in federal court. See In re\nManrique, 21 I. & N. Dec. 58, 64 (B.I.A. 1995); In re Werk, 16 I. & N. Dec. 234,\n235\xe2\x80\x9336 (B.I.A. 1977).\nAt the time that the BIA decided Luviano, neither of the existing lines of administrative precedent addressed directly the circumstance at issue in Luviano,\nwhich concerned the effect of an expungement on a person who had been convict3\nThere, the Attorney General held that Congress\xe2\x80\x99s progressive strengthening of the deportation\nlaws with respect to aliens who had committed narcotics offenses that would subject them to\ndeportation under what was then section 241(a)(11) of the INA revealed Congress\xe2\x80\x99s intent to subject\nsuch aliens to deportation even if their convictions had been technically \xe2\x80\x9cexpunged\xe2\x80\x9d pursuant to section\n1203.4(a) of the California Penal Code.\n\n4\n\n\x0cTreatment of Expunged State Convictions Under the INA\n\ned of what the former section 241(a)(2)(C) termed a \xe2\x80\x9cfirearms\xe2\x80\x9d offense. Nevertheless, the BIA concluded in Luviano that the prior Attorney General opinions had\nestablished a rule that applied to all convictions that were not narcotics-related and\nthat had been expunged. The BIA concluded that this rule precluded such convictions from serving as the basis for an order of deportation.\nAfter the BIA issued its decision in Luviano, Congress enacted section 322(a)\nof IIRIRA, which amended the INA to define the term \xe2\x80\x9cconviction\xe2\x80\x9d for the first\ntime. The new definition provides:\n[t]he term \xe2\x80\x9cconviction\xe2\x80\x9d means with respect to an alien, a formal\njudgment of guilt of the alien entered by a court or, if adjudication of\nguilt has been withheld, where\n(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient\nfacts to warrant a finding of guilt, and\n(ii) the judge has ordered some form of punishment, penalty, or\nrestraint on the alien\xe2\x80\x99s theory to be imposed.\nIIRIRA \xc2\xa7 322(a), 110 Stat. at 3009-628; INA \xc2\xa7 101(a)(48)(A), 8 U.S.C.\n\xc2\xa7 1101(a)(48)(A) (2000). Because Congress passed the new federal statutory\ndefinition during the pendency of respondent\xe2\x80\x99s appeal, the new statutory\ndefinition of \xe2\x80\x9cconviction\xe2\x80\x9d applies here. See IIRIRA \xc2\xa7 322(c), 110 Stat. at 3009629 (explaining that the new statutory definition shall apply \xe2\x80\x9cto convictions . . .\nentered before, on, or after the date of the enactment of [IIRIRA]\xe2\x80\x9d). On May 31,\n1996, after the enactment of IIRIRA, the Commissioner of the INS referred the\nBoard\xe2\x80\x99s decision in Luviano to the Attorney General.\nThe Attorney General\xe2\x80\x99s review of the Luviano decision was pending at the time\nMarroquin-Garcia\xe2\x80\x99s appeal came to the BIA, but in light of the new federal\ndefinition in IIRIRA, the BIA concluded that it should decide the merits of\nMarroquin-Garcia\xe2\x80\x99s appeal, rather than wait for the Attorney General\xe2\x80\x99s decision in\nLuviano. In construing this new federal definition, the BIA determined that the\nstatutory text did not make clear whether, or to what extent, Congress intended to\ntreat expunged convictions, of any type, as \xe2\x80\x9cconvictions\xe2\x80\x9d for purposes of the\nimmigration laws. The BIA therefore turned to the legislative history. It relied\nprimarily on a joint explanatory statement in the conference report to the IIRIRA\nthat addressed the new definition. See Marroquin at 4\xe2\x80\x935. The joint explanatory\nstatement made particular mention of the BIA\xe2\x80\x99s pre-Luviano decision in In re\nOzkok, 19 I. & N. Dec. 546 (B.I.A. 1988), in which the BIA had established rules\nfor determining whether a state court\xe2\x80\x99s decision to withhold an adjudication of\nguilt prior to the entry of a formal judgment of conviction\xe2\x80\x94as opposed to vacating\nor setting aside a conviction already entered\xe2\x80\x94precludes a judge\xe2\x80\x99s or jury\xe2\x80\x99s finding\nof guilt, or a defendant\xe2\x80\x99s plea of guilty, from being deemed a \xe2\x80\x9cconviction\xe2\x80\x9d under\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nthe INA. 4 H.R. Conf. Rep. No. 104-828, at 199, 223 (1996). The BIA noted that,\nin contrast to the joint explanatory statement\xe2\x80\x99s relatively detailed discussion of\nOzkok, \xe2\x80\x9cthere was no discussion whatsoever\xe2\x80\x9d of the BIA and Attorney General\ndecisions that had established the rules for determining whether formal judgments\nof conviction that had been entered and subsequently vacated or set aside constituted \xe2\x80\x9cconvictions\xe2\x80\x9d under the INA. Marroquin at 5.\nThe BIA concluded from the joint explanatory statement\xe2\x80\x99s express reference to\nOzkok, and its failure to mention the other type of expungement decisions, that\nCongress did not intend for the INA\xe2\x80\x99s new definition of \xe2\x80\x9cconviction\xe2\x80\x9d to supplant\nLuviano\xe2\x80\x99s rule for determining whether a state court conviction that had been\nformally entered, but subsequently vacated or set aside, constituted a \xe2\x80\x9cconviction\xe2\x80\x9d\nunder the INA. Id. The BIA determined that the new statutory definition of\n\xe2\x80\x9cconviction\xe2\x80\x9d simply codified and refined the rules that the BIA had set forth in\nOzkok, for determining whether, the circumstance in which a formal judgment of\nconviction has been withheld prior to entry, a finding of guilt constitutes a\n\xe2\x80\x9cconviction\xe2\x80\x9d under the INA. Id. The BIA therefore held that, notwithstanding the\nnew federal statutory definition of \xe2\x80\x9cconviction,\xe2\x80\x9d Luviano continued to control\nwhen a conviction had been vacated or set aside, and thus Marroquin-Garcia had\nnot been \xe2\x80\x9cconvicted\xe2\x80\x9d for purposes of section 241(a)(2)(C) of the INA because his\nconviction for a non-narcotics-related offense had been set aside pursuant to the\nsame California expungement law in Luviano. Marroquin at 6.\nThe BIA referred this matter for my review as well. \xe2\x80\x9cIf the Attorney General\nultimately determines that a conviction for a firearms offense survives for\nimmigration purposes despite a state procedure for expungement, the [Immigration\nand Naturalization] Service is free to reinstate deportation proceedings against the\nrespondent here,\xe2\x80\x9d the BIA explained. Id. \xe2\x80\x9cAt present, however, the [Immigration\nand Naturalization] Service cannot seek the respondent\xe2\x80\x99s deportation under section\n241(a)(2)(C) of the Act on the basis of a criminal case in which the plea of guilty\nhas been set aside and vacated and the charges have been dismissed.\xe2\x80\x9d ld.\nAfter the BIA referred its decision in this case to me, the Board issued its opinion in Roldan. In that case, the BIA considered whether an expunged narcotics\nconviction could form the basis for an order of deportation in light of the new\ndefinition of conviction in IIRIRA. Although Roldan appears to involve a deferred\nadjudication, 5 the BIA found \xe2\x80\x9cit necessary to reconsider . . . the effect to be given\n4\nOver the years, the BIA had wrestled with the question of when a \xe2\x80\x9cconviction\xe2\x80\x9d occurs under state\nstatutes providing for varying degrees of deferred adjudication. It settled on a three-factor definition in\nOzkok. Under Ozkok, an alien was considered \xe2\x80\x9cconvicted\xe2\x80\x9d when: (1) the alien had been found guilty or\npleaded guilty or nolo contendere or had admitted sufficient facts to warrant a finding of guilty; (2) the\njudge had ordered some form of punishment; and (3) a judgment of guilt could be entered without\nfurther proceedings relating to guilt if the person violated terms of his probation or other court order.\n19 I. & N. Dec. at 551\xe2\x80\x9352.\n5\nSee id., 22 I. & N. Dec. at 514 (\xe2\x80\x9cthe [state court] withheld adjudication of judgment, sentenced\nhim to 3 years\xe2\x80\x99 probation and imposed several monetary penalties\xe2\x80\x9d); id. (\xe2\x80\x9cthe respondent filed a motion\n\n6\n\n\x0cTreatment of Expunged State Convictions Under the INA\n\nto any state action, whether it is called setting aside, annulling, vacating, cancellation, expungement, dismissal, discharge, etc., of the conviction, proceedings,\nsentence, charge, or plea, that purports to erase the record of guilt of an offense\npursuant to a state rehabilitative statute,\xe2\x80\x9d 22 I. & N. Dec. at 520. The BIA\ndetermined that Congress intended to establish a uniform federal rule that\nprecluded the recognition of subsequent state rehabilitative expungements of\nconvictions. More precisely, the BIA found that because Congress clearly intended\nthat an alien with a deferred adjudication should be considered convicted,\nCongress also must have intended that an alien with a \xe2\x80\x9ctechnical erasure of the\nrecord of conviction\xe2\x80\x9d should be considered convicted. Id. at 521. As the BIA\nstated,\n[i]t simply would defy logic for us, in a case concerning a conviction\nin a state which effects rehabilitation through the technical erasure of\nthe record of conviction, to provide greater deference to that state\xe2\x80\x99s\ndetermination that a conviction no longer exists. Under either scenario, the state has decided that it does not consider the individual convicted based on the application of a rehabilitative statute.\n. . . Congress clearly does not intend that there be different immigration consequences accorded to criminals fortunate enough to violate\nthe law in a state where rehabilitation is achieved through the expungement of records evidencing what would otherwise [have been]\na conviction under section 101(a)(48)(A), rather than in a state where\nthe procedure achieves the same objective simply through deferral of\njudgment.\nId. Based on its examination of the statutory text and legislative history, the BIA\nconcluded that it would \xe2\x80\x9cinterpret the new definition to provide that an alien is\nconsidered convicted for immigration purposes upon the initial satisfaction of the\nrequirements of section 101(a)(48)(A) of the Act, and that he remains convicted\nnotwithstanding a subsequent state action purporting to erase all evidence of the\noriginal determination of guilt through a rehabilitative procedure.\xe2\x80\x9d Id. at 523. The\nBIA qualified its holding by noting that its decision did not address the situation\nwhere a state court vacates a conviction on the merits or on grounds relating to a\nstatutory or constitutional violation. Id. The BIA thus overruled Luviano and\nMarroquin. Id. at 512.\n\nin the Idaho state court for early release from probation and dismissal of the charge in accordance with\nthe withheld judgment\xe2\x80\x9d); id. at 530 (Board Member Villageliu, dissenting in part and concurring in\npart, joined by Chairman Schmidt and Board Members Rosenberg and Guendelsberger) (characterizing\nmajority\xe2\x80\x99s discussion of IIRIRA\xe2\x80\x99s definition in relation to vacated convictions as dicta). But see id. at\n513 (describing respondent as \xe2\x80\x9ca first offender whose guilty plea was vacated\xe2\x80\x9d).\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nIn Lujan-Armendariz, the Ninth Circuit considered the BIA\xe2\x80\x99s decision in Roldan. The court was skeptical of the BIA\xe2\x80\x99s conclusion that the new definition\ncovered vacated or set-aside convictions as well as deferred adjudications. See id.,\n222 F.3d at 742. The Ninth Circuit noted that the amendment said nothing about\nvacated convictions and could well be interpreted to establish only when a\nconviction occurred without determining what might be the effect of a later\nexpungement. Id. at 741\xe2\x80\x9342. The court did not decide this issue, however, and\nconcluded instead that because the new definition in IIRIRA did not repeal the\nFFOA, equal protection principles mandated that aliens whose convictions had\nbeen expunged pursuant to state law were still entitled to the same treatment as\nthose whose convictions had been expunged under federal law. Id. at 748\xe2\x80\x9350.\nTherefore, an alien could not be deported based on a state conviction of simple\npossession where that conviction was expunged by the state, if a federal simple\npossession conviction could have been expunged under the FFOA. In other words,\nbecause the new definition of conviction did not repeal the FFOA, if an alien\xe2\x80\x99s\nconviction for a simple possession narcotics offense was expunged under a state\nequivalent of the FFOA, that conviction could not serve as the basis for an order of\ndeportation, because, had the alien received the expungement under the FFOA,\nthat conviction could not form the basis for the order of deportation. See id. at 750.\nWith this history in mind, I now turn to the question of the proper interpretation\nof \xe2\x80\x9cconviction,\xe2\x80\x9d at least with respect to non-narcotics cases.\nII.\nA.\nAs set forth above, the relevant statutory provision defines a \xe2\x80\x9cconviction\xe2\x80\x9d to be\n\xe2\x80\x9ca formal adjudication of guilt of the alien entered by a court.\xe2\x80\x9d INA\n\xc2\xa7 101(a)(48)(A), 8 U.S.C. \xc2\xa7 1101(a)(48)(A). This definition, though broad, is\nclearly not intended to encompass convictions that have been formally entered but\nsubsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf.\nIn re P\xe2\x80\x93, 9 I. & N. Dec. 293 (A.G. 1961) (concluding that conviction set aside\npursuant to writ of coram nobis for a constitutional defect could not serve as basis\nfor order of deportation). Subsequently set-aside convictions of this type fall\noutside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien\xe2\x80\x99s guilt.\nThis same logic, however, suggests that a different conclusion is warranted for\nconvictions such as the one at issue in this case. As was noted in dissent in\nLuviano, state laws that authorize the subsequent expungement of a conviction\ntypically do so for reasons that are entirely unrelated to the legal propriety of the\nunderlying judgment of conviction\xe2\x80\x94reasons, in other words, that are unrelated to\nconcerns about the factual basis for, or the procedural validity of, the conviction.\n\n8\n\n\x0cTreatment of Expunged State Convictions Under the INA\n\n21 I. & N. Dec. at 247\xe2\x80\x9348 (Board Member Hurwitz dissenting, joined by Board\nMember Vacca). These state expungement laws authorize a conviction to be\nexpunged in order to serve rehabilitative ends and without reference to the merits\nof the underlying adjudication of guilt. Id. Such expunged convictions would\nappear, therefore, to survive as formal adjudications of guilt entered by a court.\nHere, the state expungement law that provided relief for Marroquin-Garcia\npermits state courts to provide relief to all convicted defendants who seek it and\nhave either completed their terms of probation or have been discharged prior to the\ntermination of their probation. See Cal. Penal Code \xc2\xa7 1203.4(a). 6 It affords a\nremedy that is readily distinguishable from, for example, an appellate court\xe2\x80\x99s\nreversal of a conviction on the merits, which is available only to persons who can\ndemonstrate that the entry of the initial conviction was in error. Consistent with\nthis conclusion, section 1203.4(a) of the California Penal Code does not, for\npurposes of California law, \xe2\x80\x9ceradicate a conviction or purge [the] defendant of the\nguilt established thereby.\xe2\x80\x9d Adams v. Cnty. of Sacramento, 1 Cal. Rptr. 2d 138, 141\n(Cal. Ct. App. 1991); accord id. (explaining that the provision \xe2\x80\x9c\xe2\x80\x98was never\nintended to obliterate the fact that defendant has been \xe2\x80\x98finally adjudged guilty of a\ncrime\xe2\x80\x99\xe2\x80\x9d) (quoting Meyer v. Bd. of Med. Exam\xe2\x80\x99rs, 206 P.2d 1085 (1949)). Indeed, a\ndefendant who receives relief from the California provision still remains subject to\ncertain state law civil disabilities that result from the initial entry of a formal\nadjudication of guilt, i.e., the entry of a judgment of conviction. 7\nFor these reasons, the relief provided by the California expungement law does\nnot reflect a judgment about the merits of the underlying adjudication of guilt. It\ndoes not provide relief equivalent to a decision on appeal (or in a collateral\nproceeding) that reverses or vacates a judgment of conviction for insufficiency of\n6\nSection 1203.4(a) of the California Penal Code also authorizes state courts to provide the same\nrelief in any \xe2\x80\x9ccase in which a court, in its discretion and the interests of justice, determines that a\ndefendant should be granted the relief available under this section.\xe2\x80\x9d\n7\nSection 1203.4(a) of the California Penal Code provides that \xe2\x80\x9cin any subsequent prosecution of\nthe defendant for any other offense, the prior conviction may be pleaded and proved and shall have the\nsame effect as if probation had not been granted or the accusation or information dismissed.\xe2\x80\x9d In\naddition, the provision states that \xe2\x80\x9cthe order [granting relief] does not relieve [the defendant] of the\nobligation to disclose the conviction in response to any direct question contained in any questionnaire\nor application for public office, for licensure by any state or local agency, or for contracting with the\nCalifornia State Lottery.\xe2\x80\x9d Finally, the provision provides that \xe2\x80\x9c[d]ismissal of an accusation or\ninformation pursuant to this section does not permit a person to own, possess, or have in his or her\ncustody or contro1 any firearm capable of being concealed upon the person or prevent his or her\nconviction under Section 12021.\xe2\x80\x9d California law further provides that numerous professional and\nbusiness licenses may be denied, revoked, or suspended as a result of a conviction, notwithstanding that\nfact that it has been expunged pursuant to section 1203.4(a). See Luviano, 21 I. & N. Dec. at 246\xe2\x80\x9347\n(Board Member Hurwitz dissenting, joined by Board Member Vacca); see also Ramirez-Castro v. INS,\n287 F.3d 1172, 1175 (9th Cir. 2002) (noting that \xe2\x80\x9cCalifornia Penal Code section 1203.4(a) provides\nonly a limited expungement even under state law\xe2\x80\x9d); Garcia-Gonzales v. INS, 344 F.2d 804, 808 (9th\nCir. 1965) (explaining that it is \xe2\x80\x9csheer fiction to say that the conviction is \xe2\x80\x98wiped out\xe2\x80\x99 or \xe2\x80\x98expunged\xe2\x80\x99\xe2\x80\x9d\nby section 1203.4(a)).\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nthe evidence or for procedural errors at trial. It serves only to ameliorate certain of\nthe punitive consequences that attend a court\xe2\x80\x99s legally valid finding of guilt. Even\nthough the initial judgment of conviction has been set aside pursuant to section\n1203.4(a), the merits of the underlying judgment have not been called into\nquestion and adverse legal consequences continue to follow from it. Thus, that\njudgment would still appear to fall squarely within the plain language of the new\nfederal statutory definition of \xe2\x80\x9cconviction,\xe2\x80\x9d which defines a \xe2\x80\x9cconviction\xe2\x80\x9d under the\nINA to be \xe2\x80\x9ca formal judgment of guilt of the alien entered by a court.\xe2\x80\x9d INA\n\xc2\xa7 101(a)(48)(A), 8 U.S.C. \xc2\xa7 1101(a)(48)(A).\nThe conclusion that the phrase \xe2\x80\x9ca formal judgment of guilt of the alien entered\nby a court\xe2\x80\x9d should be construed to encompass, by its plain terms, convictions that\nhave been vacated or set aside pursuant to expungement statutes like section\n1203.4(a) finds additional support in the treatment that the new federal statutory\ndefinition of \xe2\x80\x9cconviction\xe2\x80\x9d accords an \xe2\x80\x9cadjudication of guilt [that] has been\nwithheld.\xe2\x80\x9d Id. The new federal statutory definition of \xe2\x80\x9cconviction\xe2\x80\x9d clearly\nprovides that a defendant who has been found guilty by a judge or jury, or has\npleaded guilty, has been \xe2\x80\x9cconvicted\xe2\x80\x9d for purposes of the INA if the judge has\n\xe2\x80\x9cwithheld a formal adjudication of guilt\xe2\x80\x9d but has nevertheless imposed penalties or\nrestraints upon the defendant\xe2\x80\x99s liberty. Id. This part of the new federal statutory\ndefinition of \xe2\x80\x9cconviction\xe2\x80\x9d ensures that a defendant who has been found guilty of\nunlawful conduct, and has been punished for that conduct, will not avoid deportation by utilizing a state court procedure that spares the defendant from technically\nbeing adjudged \xe2\x80\x9cconvicted.\xe2\x80\x9d\nThe congressional determination that even some state court decisions to withhold adjudications of guilt prior to the entry of a judgment of conviction should be\ncounted as convictions under the INA supports the more modest conclusion that\nthe phrase \xe2\x80\x9ca formal judgment of guilt of the alien entered by a court\xe2\x80\x9d encompasses judgments of conviction that, at least in the ordinary case, have been\nentered but then vacated or set aside for reasons that do not go to the legal\npropriety of the original judgment and that continue to impose some restraints or\npenalties upon the defendant\xe2\x80\x99s liberty. A conviction that has been vacated or set\naside pursuant to a law like the California statute ordinarily does not differ in\nsubstance from the type of state court decision to withhold an adjudication of guilt\nprior to entry that Congress has explicitly deemed to constitute a \xe2\x80\x9cconviction.\xe2\x80\x9d The\nrelief that the court provides in each type of case does nothing to call into question\nthe propriety of the underlying adjudication of guilt.\nIndeed, this case well illustrates the point. Even though Marroquin-Garcia\xe2\x80\x99s\nconviction has been set aside under section 1203.4(a), the underlying judgment of\nguilt still counts as a \xe2\x80\x9cconviction\xe2\x80\x9d under California law, and he not only has been\nsubjected to punishment as a consequence of that conviction but also remains\nsubject to various civil disabilities as well. The existence of these continuing legal\ndisabilities certainly suggests that, for purposes of determining whether the initial\n\n10\n\n\x0cTreatment of Expunged State Convictions Under the INA\n\nadjudication of guilt may serve as the basis for an order of deportation, the\nexpungement in question should not be equated with a court\xe2\x80\x99s setting aside a\nconviction on the merits in a collateral proceeding or on appeal.\nBecause even an \xe2\x80\x9cadjudication of guilt [that] has been withheld\xe2\x80\x9d may constitute\na \xe2\x80\x9cconviction\xe2\x80\x9d under the new federal definition that Congress has enacted, there\nwould appear to be no reason to construe the phrase \xe2\x80\x9ca formal judgment of guilt\nentered against the alien by a court\xe2\x80\x9d to exclude expunged convictions of the type\nat issue here. Indeed, in light of the treatment that the new federal statutory\ndefinition accords certain state court decisions to withhold an adjudication of guilt\nprior to the entry of a conviction, the conclusion that the new federal statutory\ndefinition fails to encompass the broad category of expunged convictions identified in Luviano would lead to anomalous results.\nFor example, an alien defendant who requested a state court to withhold an\nadjudication of guilt prior to the entry of a conviction could in many cases be\nsubject to deportation. By contrast, an alien who was equally culpable of the same\noffense but waited until after the conviction had been entered to seek the relief that\na provision such as the California expungement law may provide would not be\nsubject to deportation. Under such an approach, a convicted alien who had been\nfound guilty, had served a substantial period of time in prison, and whose conviction had been subsequently vacated, could end up in a more favorable position for\npurposes of federal immigration law than an alien who had never had a conviction\nentered against him or her and had never served any time in prison for the offense.\nIt is doubtful that Congress would have intended to provide greater relief under the\nimmigration laws to alien defendants who had been convicted and served long\nprison terms than to equally culpable alien defendants who had never been\nformally convicted and who had been subject to comparatively minor restraints on\ntheir liberty. There would appear to be little basis, therefore, for construing the\nseemingly plain definition of \xe2\x80\x9cconviction\xe2\x80\x9d that Congress has now enacted to\naccord such disparate treatment to equally culpable aliens. 8\nB.\nAs discussed above, the Ninth Circuit reached a different conclusion only with\nrespect to a narcotics offense that would have fallen within the Federal First\nOffender Act had the charges been brought in federal court. See Lujan8\nMy conclusion is, as was demonstrated in the Board\xe2\x80\x99s decision in Roldan, 22 I. & N. Dec. at 514\xe2\x80\x93\n19, consistent with a proper reading of the legislative history underlying the enactment of 8 U.S.C.\n\xc2\xa7 1101(a)(48)(A). Congress \xe2\x80\x9cdeliberately broaden[ed]\xe2\x80\x9d the meaning of conviction and made guilt\xe2\x80\x94not\nrehabilitation\xe2\x80\x94the dispositive factor in determining whether an individual is to be removed from the\nUnited States. H.R. Conf. Rep. No. 104-828, at 224 (1996). Legislators noted that \xe2\x80\x9cthere exist in the\nvarious States a myriad of provisions for ameliorating the effects of a conviction. As a result, aliens\nwho have clearly been guilty of criminal behavior and who Congress intended to be considered\n\xe2\x80\x98convicted\xe2\x80\x99 have escaped the immigration consequences normally attendant upon a conviction.\xe2\x80\x9d Id.\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nArmendariz, 222 F.3d at 750. With respect to offenses that do not fall within the\nFFOA or a state equivalent, the Ninth Circuit held that the BIA\xe2\x80\x99s interpretation in\nRoldan\xe2\x80\x94i.e., that the new definition of conviction covers vacated or set aside state\nconvictions as well as deferred adjudications\xe2\x80\x94was a permissible construction of\nthe new statutory definition of conviction. See Murillo-Espinoza v. INS, 261 F.3d\n771, 774 (9th Cir. 2001). And other circuits to address the issue have agreed with\nthe BIA that a vacated conviction falls within the new definition of conviction. See\nRenteria-Gonzalez v. INS, 322 F.3d 804, 812\xe2\x80\x9314 (5th Cir. 2002) (applying plain\nmeaning of new IIRIRA definition to find that vacated federal conviction for\ntrafficking in aliens remained conviction for purposes of INA); United States v.\nCampbell, 167 F.3d 94, 98 (2d Cir. 1999) (applying the plain language of new\ndefinition to find that vacated conviction for possession of controlled substance\nconstituted conviction for sentencing purposes; \xe2\x80\x9cno provision excepts from this\ndefinition a conviction that has been vacated\xe2\x80\x9d).\nBecause this case does not involve a conviction for a narcotics offense and a\nsubsequent rehabilitation either under the FFOA or state law, I do not decide\nwhether the Ninth Circuit was correct in concluding that the new definition of\nconviction did not repeal the FFOA, and therefore, as the Ninth Circuit held,\nequal protection guarantees require that an alien with a state conviction who\nwould have been eligible for FFOA relief had the conviction been rendered in\nfederal court receive the same treatment as a alien with a federal conviction. I do\nnote, however, that at least three circuits disagree with the Ninth Circuit. See\nAcosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that \xe2\x80\x9cit seems\nplain that rational-basis review is satisfied here\xe2\x80\x9d); Gill v. Ashcroft, 335 F.3d 574,\n579 (7th Cir. 2003) (finding Ninth Circuit\xe2\x80\x99s decision \xe2\x80\x9cuntenable\xe2\x80\x9d and declining\nto follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697\xe2\x80\x9399 (8th Cir. 2002)\n(disagreeing with Ninth Circuit and declining to address possible repeal of\nFFOA by IIRIRA because no equal protection violation for treating alien\nconvicted under state law differently from alien convicted under federal law\nwhere the sentences were dissimilar and Congress could have intended to\nprovide relief only for federal convictions, over which Congress would have\ncontrol). Indeed, although the BIA acquiesces in the decision in the Ninth\nCircuit, it correctly declines to follow it outside of that circuit. See In re SalazarRegino, 23 I. & N. Dec. 223, 235 (B.I.A. 2002) (\xe2\x80\x9c[E]xcept in the Ninth Circuit, a\nfirst-time simple drug possession offense expunged under a state rehabilitative\nstatute is a conviction under section 101(a)(48)(A) of the [INA].\xe2\x80\x9d). *\nThere remains the final question whether the expungement that MarroquinGarcia received in this case removes that conviction from the scope of the new\nfederal statutory definition of \xe2\x80\x9cconviction.\xe2\x80\x9d As has already been noted, section\n*\n\nEditor\xe2\x80\x99s Note: The Ninth Circuit subsequently overruled Lujan-Armendariz in Nunez-Reyes v.\nHolder, 646 F.3d 684, 689 (9th Cir. 2011) (en banc), stating that \xe2\x80\x9cwe now agree with the BIA and our\nsister circuits.\xe2\x80\x9d\n\n12\n\n\x0cTreatment of Expunged State Convictions Under the INA\n\n1203.4(a) of the California Penal Code does not serve to provide relief that is\nbased on a judgment about the legal propriety of the underlying judgment of\nconviction. It merely provides a means by which certain defendants who have\nbeen lawfully convicted and subjected to punishment may be relieved of many,\nthough not all, of the remaining legal consequences that normally attend an\nadjudication of guilt. Therefore, notwithstanding the relief that petitioner received\nunder section 1203.4(a) of the California Penal Code, he has been \xe2\x80\x9cconvicted\xe2\x80\x9d for\npurposes of what was then section 241(a)(2)(C) of the INA.\nJOHN D. ASHCROFT\nAttorney General\n\n13\n\n\x0c'


b"September 8, 1977\n\n78-82\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nNational Commission on Neighborhoods\n(Pub. L. 95-24)\xe2\x80\x94 Powers\xe2\x80\x94 Appropriations\n\nThis is in response to your request for our opinion on a proposed interagency\nagreement between the Department o f Housing and Urban Development\n(HUD) and the newly established National Commission on Neighborhoods (the\nCommission). The Commission was created by Title II of the Supplemental\nHousing Authorization Act o f 1977.1 This Act, inter alia, authorized additional\nfunds to HUD for housing assistance for lower income Americans. However, in\nestablishing the Comm ission the Act also appropriated funds to HUD not to\nexceed $1,000,000 to carry out the congressional purpose in creating the\nCom m ission.2 Thus, when the Commission can legally function HUD will be\nobliged to transfer the appropriated funds from its account to the Com m is\xc2\xad\nsion.\nThe Commission is to consist o f 20 m em bers.3 As matters now stand, it\nappears that no members of the Commission have been appointed; however,\napparently some of the Com m ission\xe2\x80\x99s staff have been selected.4 So that the\nCom m ission\xe2\x80\x99s existing staff may obtain startup expense, HUD has agreed to\ntransfer such funds upon the signing o f an agreement between the two agencies.\nYou ask whether such an agreement can be executed before the full m ember\xc2\xad\nship of the Commission is appointed. In our opinion, no such agreement can be\nexecuted at this time.\nThe most obvious barrier is the absence o f a party who can legally enter into\nthe agreement with HUD on behalf of the Comm ission. It is clear from the Act\nthat only the Commission may execute such an agreement or designate an\n\n'S ection 203(a) o f Pub. L. 95-24, 91 Stat. 56.\n2Section 207, id.\n3Section 203(b), id.\n4It is difficult to see how the C om m ission can have any staff at this juncture since no members\nhave been appointed and the Act gives the C om m ission sole pow er to appoint and fix the\ncom pensation o f its staff.\n\n366\n\n\x0cindividual to act upon its behalf.5 Nor can the agreement be executed until all\nthe members of the Commission are appointed. Except for the limited authority\ngiven to the Chairman or Vice Chairman by \xc2\xa7 206(c) of the Act, all powers and\nduties are vested in the Com m ission.6 Thus, until all the Com m ission\xe2\x80\x99s\nmembers are appointed, HUD and the Commission cannot execute a legal\nagreement.\nHowever, at such time as the Commission is a functioning body, we see no\nneed for the agreement. The Commission is authorized by the Act to receive\nfunds so long as they do not exceed $1,000,000. All that would be necessary\nwould be a general transfer o f funds from HUD to the Commission.\n\nL eon U\n\nlm an\n\nD eputy A ssistant A ttorney G eneral\nOffice o f L egal Counsel\n\n5In the m ain, the A ct is silent as to the C om m ission\xe2\x80\x99s internal organization, practices, and\nprocedures. The clear im plication is that these m atters are to be decided by the m em bers o f the\nCommission.\n6See \xc2\xa7\xc2\xa7 204 and 206, id.\n\n367\n\n\x0c"