We realize that three other Circuits have ruled to the contrary. Kolios v. INS, 532 F.2d 786 (1st Cir. 1976) (2-1 decision), cert. denied, ___ U.S. ___, 97 S.Ct. 234, 50 L.Ed.2d 165 (1976) (No. 1685); Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971); Cruz-Martinez v. INS, 404 F.2d 1198 (9th Cir. 1968), cert. denied, 394 U.S. 955, 89 S.Ct. 1291, 22 L.Ed.2d 491 (1969). In each of these cases the defendant was under twenty-six; i.e., he, like Rehman, could have been eligible for expungement under the Federal Youth Corrections Act.
This court has had prior occasion to consider the nature of Texas' adult probation law and has rejected the argument that it "serves to expunge or erase the conviction." Gonzalez de Lara v. United States, 5 Cir., 1971, 439 F.2d 1316, 1318; Gutierrez-Rubio v. Immigration Naturalization Service, 5 Cir., 1972, 453 F.2d 1243, 1244, cert. denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972); see Qureshi v. Immigration Naturalization Service, 5 Cir., 1975, 519 F.2d 1174, 1176; United States v. Driscoll, 5 Cir., 1972, 454 F.2d 792, 799. "Rather than a statute that completely erases the conviction . . . the provision . . . is accurately characterized as one that rewards a convicted party for good behavior during probation by releasing him from certain penalties and disabilities otherwise imposed upon convicted persons by Texas law." Gonzalez de Lara v. United States, supra, 439 F.2d at 1318.
Although there is some authority for such a result, we based our decision in de Lara upon principles of federalism which are in no way bounded by the nature of the offense involved. 439 F.2d 1316 (5th Cir. 1971).See Garcia-Gonzales v. Immigration Naturalization Service, 344 F.2d 804, 808-810 (9th Cir. 1965).
In United States v. Padia, 584 F.2d 85, 86 (5th Cir. 1978), we affirmed a conviction of receiving firearms in interstate commerce by a convicted felon, stating that probation does not erase the conviction but only "rewards a convicted party for good behavior during probation by releasing him from certain penalties and disabilities otherwise imposed upon convicted persons by Texas law." Id. (citing Gonzalez de Lara v. United States, 439 F.2d 1316, 1318 (5th Cir. 1971)).See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n. 6, 113-14, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).
The BIA was also correct in not considering the Florida expungement statute because this court, other courts of appeals, and the BIA have expressly held that the term "convicted" in the Act must be interpreted in accordance with federal standards. Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971). AFFIRMED.
We stated: "`[t]he manner in which a Texas court chooses to deal with a party subsequent to his conviction is simply not of controlling importance' where, as here, `a function of federal, not state law . . . is concerned.'" Id. at 86 (quoting Gonzalez de Lara v. United States, 439 F.2d 1316, 1318 (5th Cir. 1971)). The trial court, therefore, was correct in following Padia and denying the motion to dismiss.
See Op.Atty. Gen., 1970, No. M-640. See also Gonzalezde Lara v. United States, 439 F.2d 1316 (5th Cir. 1971) (alien convicted of Texas drug felony deportable under federal statute providing for the deportation of aliens convicted of drug offenses despite fact that Texas court had set conviction aside). Under Texas law the main distinction between felons whose convictions have been set aside and all other felons is that the former can exercise their civil rights, including the right to vote, while the latter cannot.
For 17 years this rationale has been accepted by judicial decision, with no contrary action on the part of Congress. See, e. g., Gonzales de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971); Cruz-Martinez v. INS, 404 F.2d 1198 (9th Cir. 1968), cert. denied, 394 U.S. 955, 89 S.Ct. 1291, 22 L.Ed.2d 491 (1969); Kelly v. INS, 349 F.2d 473 (9th Cir.), cert. denied, 382 U.S. 932, 86 S.Ct. 326, 15 L.Ed.2d 344 (1965); Garcia-Gonzales v. INS, 344 F.2d 804 (9th Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965). See generally C. Gordon H. Rosenfield, Immigration Law and Procedure, § 4.17 and notes 22-23c (October 1975 Supp.).
See United States v. Kelly 519 F.2d 794, 796, (8th Cir. 1975); United States v. Mostad, 485 F.2d 199, 200-201 (8th Cir. 1973); United States v. Glasgow, 478 F.2d 850, 852 (8th Cir. 1973); See also Thrall v. Wolfe, 503 F.2d 313, 316-318 (7th Cir. 1974). Cf. Gonzalez de Lara v. United States, 439 F.2d 1316, 1318 n.9 (5th Cir. 1971), and Ninth Circuit cases cited therein. It is so ordered.
The manner in which Texas chooses to deal with a party subsequent to his conviction is simply not of controlling importance insofar as a deportation proceeding — a function of federal, not state, law — is concerned." Gonzalez de Lara v. United States, 439 F.2d 1316, 1318 (5th Cir. 1971) (emphasis added).Accord Tsimbidy-Rochu v. Immigration and Naturalization Service, 414 F.2d 797 (9th Cir. 1969).