De Lara v. United States

20 Citing cases

  1. Rehman v. Immigration Naturalization Service

    544 F.2d 71 (2d Cir. 1976)   Cited 13 times
    In Rehman, we held that an alien who received a Certificate of Relief for a marijuana conviction had not been "convicted" for immigration purposes where full expungement of a federal conviction would have been available if he had been prosecuted in federal court. Rehman, 544 F.2d at 75.

    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.

  2. United States v. Padia

    584 F.2d 85 (5th Cir. 1978)   Cited 12 times
    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."

    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.

  3. Gutierrez-Rubio v. I.N.S.

    453 F.2d 1243 (5th Cir. 1972)   Cited 5 times

    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).

  4. U.S. v. Daugherty

    264 F.3d 513 (5th Cir. 2001)   Cited 223 times
    Upholding constitutionality of § 922(g) under Commerce Clause

    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).

  5. Chong v. Immigration and Naturalization Serv

    890 F.2d 284 (11th Cir. 1989)   Cited 6 times

    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.

  6. United States v. Lehmann

    613 F.2d 130 (5th Cir. 1980)   Cited 23 times
    Following Padia's holding that "a prior conviction did exist where a defendant, convicted of a crime in Texas, was given probation"

    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.

  7. Shepherd v. Trevino

    575 F.2d 1110 (5th Cir. 1978)   Cited 40 times
    Holding that the Texas system for restoring convicted felons to the franchise, which only provided a mechanism for restoration of voting rights to those felons convicted in state as opposed to federal court, bore a rational relationship to the state's interest in limiting the franchise to "responsible voters"

    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.

  8. Kolios v. Immigration Naturalization Service

    532 F.2d 786 (1st Cir. 1976)   Cited 9 times

    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.).

  9. United States v. Potts

    528 F.2d 883 (9th Cir. 1975)   Cited 35 times
    Overruling circuit precedent and expanding criminal liability under statute will not be applied retroactively because of due process considerations

    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.

  10. Qureshi v. I. N. S., Dept. of J. of U.S.

    519 F.2d 1174 (5th Cir. 1975)   Cited 18 times

    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).