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\deflang1033\pard\plain\f3\fs17 
\par No. 94-1907
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par MORRIS WINSTON WILSON, PETITIONER
\par 
\par v.
\par 
\par IMMIGRATION AND NATURALIZATION SERVICE
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE FIFTH CIRCUIT
\par 
\par BRIEF FOR THE RESPONDENT IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par FRANK W. HUNGER
\par Assistant Attorney General
\par 
\par THOMAS W. HUSSEY
\par ALISON R. DRUCKER
\par ELLEN SUE SHAPIRO
\par Attorneys
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ___________________(footnotes)
\par 
\par QUESTION PRESENTED
\par 
\par The court of appeals determined that petitioner, an
\par alien who pleaded guilty to a narcotics offense and
\par against whom a judgment of guilt was entered, was
\par "convicted" for purposes of deportation under 8
\par U.S.C. 1251(a)(2)(B)(i) (1988 & Supp. IV 1992), author-
\par izing deportation of persons convicted of narcotics
\par offenses. In determining that petitioner had been
\par convicted, the court was guided by the holding of
\par the Board of Immigration Appeals in In re Ozkok, 19
\par I. & N. Dec. 546, 551 (1988), that a conviction exists
\par for immigration purposes "if the court has adjudi-
\par cated [the alien] guilty or has entered a formal
\par adjudication of guilt." The question presented is:
\par Whether the decision in Ozkok is invalid and the
\par court of appeals' decision is consequently erroneous.
\par (I)
\par ------------------------------------- Page Break ----------------------------------------
\par                     
\par TABLE OF CONTENTS
\par 
\par Opions below   . . . . 1 
\par Jurisdiction  . . . . 1
\par Statement  . . . . 2
\par Argument  . . . . 6
\par Conclusion . . . . 11 
\par 
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Chong v. INS, 890 F.2d 284(llth Cir. 1989)   . . . . 7 
\par Deris, In re, Interim Dec. 3102 (BIA Apr. 19, 1989)   . . . . 9 
\par Der-Rong Chour v. INS, 578 F.2d 464 (2d Cir. 1978),
\par cert. denied, 440 U. S. 980(1979)  . . . . 8
\par Dickerson v. New Banner Institute, Inc., 460 U.S. 103
\par (1983)  . . . . 4
\par Tarrokhi v. INS, 900 F.2d 697 (4th Cir. 1990)   . . . . 8 
\par Florez-de Solis v. INS, 796 F.2d 330(9th Cir. 1986)   . . . . 8 
\par Golshan, In re,18 I.&N. Dec. 92(BIA 1981)  . . . . 9
\par Kahlenberg v. INS, 763 F.2d 1346 (11th Cir. 1985),
\par cert. denied, 475 U.S. 1120(1986)  . . . . 8
\par Manrique, In re, Interim Dec. 3250 (BIA May 19, 1995) . . . . 9, 10
\par Martinez-Montoya v. INS, 904 F.2d 1018(5th Cir.
\par 1990)   . . . . 4, 6, 7
\par Molina V. INS, 981 F.2d 14(lst Cir. 1992)   . . . . 7 
\par Ozkok, In re, 19 I.&N. Dec. 546( BIA 1988)   . . . . 3, 4, 6 
\par Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir.
\par 1994)  . . . . 7
\par Pino v. Landon, 349 U. S. 901(1955)   . . . . 5, 6 
\par Pino v. Nicolls, 215 F.2d 237 (lst Cir. 1954), rev'd, 349
\par Us. 901 (1955)  . . . . 5
\par Ravindran v. INS, 976 F.2d 754 (lst Cir. 1992)  . . . . 8
\par Rehman v. INS, 544 F.2d 71(2d Cir. 1976)  . . . . 7, 8
\par Rivera-Zurita v. INS, 946 F.2d 118 (10th Cir. 1991)  . . . . 8 
\par Tejeda-Mata v. INS, 626 F.2d 721 (9th Cir. 1980), cert.
\par denied, 456 U. S. 994(1982)  . . . . 8, 9
\par Valadez-Salas v. INS, 721 F.2d 251 (8th Cir. 1983)  . . . . 8 
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                     
\par IV
\par 
\par Cases-Continued:
\par 
\par Yahkpua v. INS', 770 F.2d 1317(5th Cir. 1985)  . . . . 8
\par Yanez-Popp v. INS, 998 F.2d 231(4th Cir. 1993)  . . . . 4, 7 
\par 
\par Statutes:
\par 
\par Comprehensive Crime Control Act of 1984, Pub. L. No.
\par 98-473, Tit. II, 98 Stat.. 1837:
\par    212(a)(2), 98 Stat. 2003 (18 U.S.C. 3607 (Supp. IV
\par   1986)  . . . . 10
\par  219(a), 98 Stat. 2027  . . . .10 
\par    235(a)(l), 98 Stat. 2031   . .  . .10 
\par Sentencing Reform Act, Pub. L. No. 99-217, 4, 99 Stat.
\par 1728    . . . .  . . . . ..
\par Federal First Offender Act, 18 U.S.C. `3607  . . . . 10
\par Firearms Owners' Protection Act, 18 U.S.C. 921  . . . . 
\par Immigration and Nationality Act, 8 U.S.C. 1101 et seq.:
\par    106(c), 8 U.S.C. l105a(c)  . . . . 6, 8
\par    241(a)(2)(B)(i), 8 U.S.C. 1251(a)(2)(B)(i) (1988 &
\par    SUPP. IV 1992) . . . . 2, 3, 6
\par  
\par 21 U.S.C. 844  . . . .10 
\par 21 U.S.C. 844(b)  . . . . 10 
\par Texas Penal Code Ann. art. 4.05 (West 1994)  . . . . \
\

\par ---------------------------------------- Page Break ----------------------------------------
\par                     
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM. 1995
\par 
\par        No. 94-1907
\par 
\par MORRIS WINSTON WILSON, PETITIONER
\par 
\par IMMIGRATION AND NATURALIZATION SERVICE
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par    FOR THE FIFTH CIRCUIT
\par 
\par BRIEF FOR THE RESPONDENT IN OPPOSITION
\par 
\par OPINIONS BELOW
\par 
\par The opinion of the court of appeals (Pet. App. A1-
\par A15) is reported at 43 F.3d 211. The opinion of the
\par Board of Immigration Appeals (Pet. App. B1-B8) is
\par unreported.
\par 
\par JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par February 1, 1995. The petition for a writ of certiorari
\par was filed on May 2, 1995. The jurisdiction of this
\par Court is invoked under 28 U.S.C. 1254(1).
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                      
\par 2
\par 
\par         STATEMENT
\par 
\par 1. Petitioner is a citizen and native of St.. Chris-
\par topher. In March 1985 he entered the United States
\par as a non-immigrant visitor. In May 1988, following
\par his marriage to a United States citizen, his status.
\par was adjusted to that of lawful permanent resident.
\par Pet. App. A2.
\par On July 15, 1988, petitioner pleaded guilty in Texas
\par state court to unlawful possession of more than four
\par ounces but less than five pounds of marijuana, in
\par violation of Art. 4.05 of the Texas Penal Code (West
\par 1994). The Judicial District Court of Dallas County
\par entered a judgment stating that "[i]t is therefore
\par found and adjudged by the court, that the said
\par Defendant is guilty of the felony offense." Pet. App.
\par A2. Petitioner was sentenced to four years' imprison-
\par ment and a $500 fine, but the court suspended the
\par sentence of imprisonment in favor of a four-year
\par period of probation. Ibid.
\par Petitioner served his sentence of probation. On
\par July 17, 1992, the court entered an order discharging
\par petitioner from probation. That order set aside the
\par conviction, dismissed the indictment, and released
\par petitioner from "all penalties and disabilities
\par resulting from  the Judgment of Conviction in this
\par cause." A.R. 57;1 Pet. App. A2-A3.
\par 2. On May 31, 1992, several weeks before the end of
\par petitioner's probation, the Immigration and Natu-
\par ralization Service (INS) issued an order to show
\par cause why petitioner should not be deported under
\par Section 241(a)(2)(B)(i) of the Immigration and
\par Nationality Act (INA), 8 U.S.C. 1251(a)(2)(B)(i) (1988
\par 
\par ___________________(footnotes)
\par 
\par 1 The Administrative Record is cited herein as "A.R ."
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                 
\par 3
\par 
\par & Supp. IV 1992). Pet. App. A3. That Section
\par provides that "[a]ny alien who at any time after entry
\par has been convicted of a violation of * * * any law or
\par regulation of a State, the United States, or a foreign
\par country relating to a controlled substance * * * is
\par deportable."2 Petitioner admitted the allegations
\par against him, but contended that his conviction did not
\par qualify as a conviction for immigration purposes
\par because, upon completion of his sentence, the court
\par set aside the indictment and all penalties and
\par disabilities resulting from the conviction. Pet. App.
\par A3; A.R. 49,71-74. In an oral decision on July 1, 1993,
\par the immigration judge rejected petitioner's argument
\par and found that the formal judgment of guilt entered
\par against petitioner amounted to a "conviction" under
\par Section 241, rendering him deportable. Pet. App. A3;
\par A.R. 37-41. The Board of Immigration Appeals (BIA)
\par agreed, and dismissed the appeal. Pet. App. B1-B8.
\par 3. In a per curiam opinion, the Fifth Circuit
\par affirmed. Pet. App. A1-A15. The court held that peti-
\par tioner's conviction met the standard set forth in the
\par BIA's decision in In re Ozkok, 19 I. &N, Dec. 546, 551
\par (BIA 1988), under which the BIA "shall consider a
\par person convicted if the court has adjudicated him
\par guilty or has entered a formal judgment of guilt."
\par Pet. App. A12. The court acknowledged that "the
\par Ozkok standard represents a departure from the
\par BIA's previous position, which required `the action of
\par the court [to be] considered a conviction by the state
\par 
\par ___________________(footnotes)
\par 
\par 2 The Section expressly exempts a conviction for "a single
\par offense involving possession for one's own use of 30 grams or
\par less of marijuana? 8 U.S.C. 1251(a)(2)(B)(i) (1988 & Supp. IV
\par 1992), but petitioner's conviction did not fall under that
\par exception. Pet. App. A3 n.1.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                  
\par 4
\par 
\par for at least some purpose.'" Id. at A6 (citing Ozkok,
\par 19 I. & N. Dec. at 549 n.4; Martinez-Montoya v. INS,
\par 904 F.2d 1018, 1021 (5th Cir. 1990)). The court held
\par that the BIA's revised interpretation of "conviction"
\par was a reasonable one, however, consistent with
\par congressional  intent  and  with  this Court's
\par precedents. Pet. App. A9-A12.
\par The court rejected petitioner's contention that the
\par Firearms Owners' Protection Act (FOPA), 18 U.S.C,
\par 921, manifested congressional intent to employ the
\par BIA's pre-Ozkok interpretation of "conviction" under
\par the INA. Pet. App. A7-A9. Petitioner asserted that
\par the FOPA undermined the premise of Ozkok that the
\par meaning of "conviction" under the INA is a question
\par of federal law. He pointed to the fact that Ozkok had
\par referred to this Court's holding in Dickerson v. New
\par Banner Institute, Inc., 460 U.S. 103 (1983\}, that the
\par definition of "conviction" under the federal firearms
\par statute was a question of federal law.  Because
\par Congress in the FOPA overruled Dickerson and
\par expressly provided that the meaning of `(conviction"
\par is "to be determined in accordance with the law of the
\par jurisdiction in which the proceedings were held," 18
\par U.S.C. 921, petitioner urged that Ozkok, too, was
\par invalid. The court of appeals, however, concurred
\par with the Fourth Circuit's observation in Yanez-Popp
\par v. INS, 998 F.2d 231, 236 (1993), that Dickerson "still
\par stands for the general proposition that federal law
\par governs the application of Congressional statutes in
\par the absence of a plain language to the contrary." Pet.
\par App. A8. The-court below concluded that "the fire-
\par arms amendment mandates a state definition of
\par conviction only for the firearm statute that it
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                  
\par 5
\par 
\par amends. For the purposes of the INA, the amend-
\par ment is inapplicable." Pet. App. A8-A9.
\par The court of appeals also rejected petitioner's
\par contention that the Ozkok standard conflicts with
\par Pino v. Landon, 349 U.S. 901 (1955) (per curiam).
\par Pino addressed the effect under the INA of an alien's
\par petty larceny offense where the state court found him
\par guilty but placed the case "on file," thereby deferring
\par the imposition of any judgment or sentence and also
\par postponing any consequent appeal. See Pet. App. A9.
\par This Court's one-paragraph decision in Pino stated:
\par On the record here we are unable to say that the
\par conviction has attained such finality as to support
\par an order of deportation within the contemplation
\par of 241 of the Immigration and Nationality Act.
\par The judgment is reversed.
\par 349 U.S. 901,901. Of importance to petitioner was the
\par fact that, in the course of its opinion, the First
\par Circuit in Pino had noted that "the meaning of the
\par word `convicted' is a federal question," Pet. App. A10
\par (quoting Pino v. Nicolls, 215 F.2d 237, 243 (1954));
\par petitioner gleaned from the Supreme Court's reversal
\par a rejection of that view. The court below observed,
\par however, that this Court in Pino "expressed no
\par disagreement with the First Circuit's characteriza-
\par tion of `conviction' as a federal question," but simply
\par had not addressed the issue. Pet. App. A10.
\par Pino also provided no basis for petitioner's con-
\par tention that his conviction was not final, and that it
\par therefore could not be the basis for his deportation.
\par Pet. App. A13-A14. Although Pino itself gives little
\par guidance regarding the standard of finality, the court
\par noted, "all subsequent case authority has concluded
\par that unless the alien has exhausted or waived his
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par                  
\par 6
\par 
\par rights to direct appeal or the appeals period has lapsed
\par the criminal proceeding is not sufficiently final to
\par constitute a conviction for immigration purposes."
\par Id. at A13 (quoting Martinez-Montoya, 904 F.2d at
\par 1026). The court observed that petitioner was not
\par sentenced under a deferred adjudication statute;
\par rather, his conviction was final on July 25, 1988, and
\par his 30-day appeal period lapsed in August of that year.
\par Pet. App. A13-A14.
\par 
\par        ARGUMENT
\par 
\par 1. Petitioner contends that the court of appeals
\par erred in determining that he was convicted of a nar-
\par cotics offense and is therefore subject to deportation
\par under Section 241(a)(2)(B)(i) of the Immigration and
\par Nationality Act (INA), 8 U.S.C. 1251(a)(2)(B)(i) (1988
\par & Supp. IV 1992)  The Board of Immigration Appeals
\par announced  the  governing  interpretation of
\par "conviction" in In re Ozkok, 19 I. & N. Dec. 546 (BIA
\par 1988), and petitioner does not question that his
\par conviction meets the Ozkok standard. Rather, he
\par asserts (Pet. 8-12, 16-21) that Ozkok is invalid because
\par it conflicts with congressional intent, and with this
\par Court's decision in Pino v. Landon, 349 U.S. 901
\par (1955) (per curiam).3
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3 Although petitioner contends that the court of appeals'
\par fundamental error -was in failing to view interpretation of
\par "conviction" as a question of state law, petitioner has failed
\par even to assert that, if Texas law controlled, the judgment
\par against him would not be treated as a conviction. Moreover,
\par petitioner erroneously assumes that, if Ozkok were invalid,
\par state law would govern. Even the BIA's pre-Ozkok interpre-
\par tation of "conviction'! was a federal-law standard-albeit one
\par that placed greater emphasis on the consequences the States
\par attached to judgments of conviction. Indeed, petitioner himself
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                    
\par 7
\par 
\par The court of appeals correctly rejected petitioner's
\par attack on Ozkok, and its decision is consistent with
\par the uniform adherence to the Ozkok standard by other
\par courts of appeals. See, e.g., Paredes - Urrestarazu v.
\par INS, 36 F.3d 801,811 n.11 (9th Cir. 1994); Yanez-Popp
\par v. INS, 998 F.2d 231, 234-237 (4th Cir. 1993); Molina v.
\par INS, 981 F.2d 14, 18-23 (1st Cir. 1992); Martinez-
\par Montoya v. INS, 904 F.2d 1018, 1021, 1024 (5th Cir.
\par 1990); Chong v. INS, 890 F.2d 284, 285 (11th Cir.
\par 1989) (per curiam). No further review is therefore
\par warranted.
\par 2. a. Petitioner also contends that, as a first
\par offender convicted of simple possession of marijuana,
\par he should be exempt from deportation under the
\par analysis of Rehman v. INS, 544 F.2d 71 (2d Cir. 1976).
\par Pet. 12-16. Rehman held that an alien was not sub-
\par ject to deportation because his conviction of posses-
\par sion of marijuana under New York law was accom-
\par panied by a "certificate of relief from disabilities," 544
\par F.2d at 72, and because, had he been prosecuted under
\par federal law, he would have been entitled as a first
\par offender to full expungement of his conviction under
\par 21 U.S.C. 844. Judge Lumbard reasoned that
\par 
\par                                               
\par ___________________(footnotes)
\par 
\par implicitly acknowledges as much. See Pet. 12 (referring to the
\par pre-Ozkok decision in Rehman v. INS, 544 F.2d 71 (2d Cir.
\par 1976), as agreeing with the decision below "that the definition
\par of what constitutes `conviction' is an issue of federal and not
\par state law"). What petitioner apparently seeks is not application
\par of state as opposed to federal law, but application of the BIA's
\par pre-Ozkok (federal-law) standard, under which even a formal
\par judgment of conviction was not a basis for deportation unless
\par the state attached legal consequences to it. See pages 3-4,
\par supra.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                   
\par 8
\par 
\par where mandatory deportation would frustrate the
\par purposes of a state's relief statute, and federal law
\par provides for erasure of federal convictions under
\par circumstances identical to those of the case at
\par issue, it seems to us that the state's leniency
\par policy can be respected without fear of under-
\par mining enforcement of federal deportation laws.
\par States' freedom to remove persons from the ambit
\par of deportation law would extend no further than
\par where Congress itself has gone for federal
\par criminals.
\par 
\par 544 F.2d at 75.
\par 
\par Rehman provides no basis for further review here.
\par The claim that petitioner's deportation is incon-
\par sistent with coordinate state and federal policies
\par regarding treatment of first offenders is beyond the
\par scope of the questions presented in the petition.
\par Moreover, petitioner raises this contention for the
\par first time in this Court his failure to raise it in the
\par immigration courts or before the Fifth Circuit waived
\par it."
\par 
\par ___________________(footnotes)
\par 
\par 4 Section 106(c) of the INA, 8 U.S.C. l105a(c), requires an
\par alien to exhaust "the administrative remedies available to him
\par as of right under the immigration laws and regulations" before
\par seeking review of an adverse deportation determination in the
\par courts of appeals. That provision forecloses judicial review of
\par claims aliens fail to- raise m their administrative appeals. See,
\par e.g., Ravindran v. INS, 976 F.2d 754, 761 (1st Cir. 1992);
\par Rivers-Zw-ita v. INS, 946 F.2d 118, 120 n.2 (l0th Cir. 1991);
\par Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990); Florez-de
\par Solis v. INS, 796 F.2d 330, 335 (9th Cir, 1986); Yahkpua v.
\par INS, 770 F.2d 1317, 1320 (5th Cir. 1985); Kahlenberg v. INS,
\par 763 F.2d 1346, 1352 (11th Cir. 1985), cert. denied, 475 U.S. 1120
\par (1986); Valadez-Salas v. INS, 721 F.2d 251,252 (8th Cir. 1983);
\par Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980), cert.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                   
\par 9
\par 
\par b. Although petitioner did not raise the issue
\par below or properly present it here, he may actually be
\par exempt from deportation as a first offender. The
\par Board of Immigration Appeals (BIA) in In re
\par Manrique, Interim Dec. 3250 (BIA May 19, 1995),
\par modified its position regarding the immigration
\par consequences of a first narcotics offense prosecuted
\par under state law. Before Manrique, an alien pro-
\par secuted for a narcotics offense under state law was
\par ineligible for deportation due to his status as a first
\par offender only if the statute under which he was
\par prosecuted was the state "equivalent" or "counter-
\par part" to the Federal First Offender Act (FFOA),
\par 18 U.S.C. 3607.5 See, e.g., In re Deris, Interim Dec.
\par 3102 (BIA Apr. 19, 1989); ln re Golshan, 18 L & N.
\par Dec. 92 (BIA 1981). In the interest of uniform imple-
\par mentation of the immigration laws, however, the BIA
\par in Manrique determined that even an alien whose
\par conviction is set aside pursuant to a state statute that
\par is not equivalent to the FFOA should nonetheless be
\par exempt from deportation based upon the conviction if
\par 
\par ___________________(footnotes)
\par 
\par denied, 456 U.S. 994 (1982); Der-Rong Chour v. INS, 578 F.2d
\par 464, 468 (2d Cir. 1978), cert. denied, 440 U.S. 980 (1979).
\par 5 Manrique had been convicted of possession of cocaine
\par under Louisiana law and was sentenced to five years' probation
\par and to payment of a fine of $5,000. Applying the BIA's former
\par standard, the immigration judge held that the Louisiana statute
\par under which Manrique had been prosecuted was not an exact
\par equivalent of the FFOA because it was not limited to controlled
\par substance offenses, but authorized first-offender treatment for
\par a broader range of offenses. Because petitioner failed to raise
\par it, the question whether the Texas law under which peti-
\par tioner's conviction was expunged was equivalent to the FFOA
\par was never addressed in the immigration proceedings or the
\par court of appeals.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par                    
\par 10
\par 
\par he would have been eligible for first-offender
\par treatment had he been prosecuted under federal law.
\par Manrique, slip op. 11.6
\par Manrique applies to aliens prosecuted under state
\par law who demonstrate that:  (1) they are first
\par offenders, not previously convicted of violating any
\par federal or state law relating to controlled substances;
\par (2) they have pled been found guilty of the offense of
\par simple possession of a controlled substance; (3) they
\par have not previously been accorded first offender
\par treatment under. any law; and (4) the state court has
\par entered an order pursuant to a state rehabilitative
\par statute under which the alien's criminal proceedings
\par have been deferred pending successful completion of
\par probation or the proceedings have been or will be
\par dismissed after probation. Slip op. 12.
\par Petitioner may meet those criteria.7 If he had
\par raised the issue below and properly presented it here,
\par 
\par ___________________(footnotes)
\par 
\par 6 The federal first offender statute in effect when the initial
\par immigration decision was made in this case, 21 U.S.C. 844(b),
\par was repealed by the Comprehensive Crime Control Act of 1984,
\par Pub. L. No. 98-473, Tit. II,  219(a), 235(a)(l), 98 Stat, 2027,
\par 2031, amended by the Sentencing Reform Act, Pub. L. No. 99-
\par 217, 4,99 Stat. 1728, but Congress simultaneously reenacted a
\par revised version of the first offender statute, effective
\par November 1, 1987. Pub. L. No. 98-473, Tit. II,  212(a)(2), 98
\par Stat. 2003, codified at 18 U.S.C. 3607 (Supp. IV 1986).
\par 7 It appears that petitioner had no prior federal or state
\par controlled substance convictions, and that he had not
\par previously been accorded first offender treatment under any
\par law. He pled guilty to the charge of possession of marijuana.
\par Petitioner served four years' probation, and the state court
\par thereafter set aside the conviction, dismissed the indictment,
\par and released petitioner from all disabilities of the conviction;
\par the $500 fine, however, was not set aside.
\par 
\par --------------------------------------- Page Break ----------------------------------------                   
\par 
\par 11
\par 
\par we would suggest that the decision of the court of
\par appeals be vacated and the case remanded for further
\par proceedings in light of Manrique.8  Because the
\par court of appeals correctly decided the issues
\par petitioner presented to it, however, we believe that
\par the appropriate course is to deny the current petition.
\par The INS would not, however, oppose a motion by
\par petitioner to reopen proceedings before the BIA to
\par litigate the question whether Manrique applies to
\par exempt petitioner from deportation.
\par      
\par  CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par 
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par FRANK W. HUNGER
\par Assistant Attorney General
\par 
\par THOMAS W. HUSSEY
\par ALISON R. DRUCKER
\par ELLEN SUE SHAPIRO
\par Attorneys
\par 
\par AUGUST 1995
\par 
\par ___________________(footnotes)
\par 
\par 8 The BIA in Manrique itself remanded that case to the
\par immigration judge to determine whether the alien met the new
\par criteria.
\par 
\par 
\par }