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Office of Legal Counsel OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OF JUSTICE CONSISTING OF SELECTED MEMORANDUM OPINIONS ADVISING THE PRESIDENT OF THE UNITED STATES, THE ATTORNEY GENERAL, AND OTHER EXECUTIVE OFFICERS OF THE FEDERAL GOVERNMENT IN RELATION TO THEIR OFFICIAL DUTIES EDITOR Nathan A. Forrester VOLUME 29 2005 WASHINGTON 2014 Attorneys General John D. Ashcroft Alberto R. Gonzales Assistant Attorneys General Office of Legal Counsel Steven G. Bradbury (Acting) Daniel L. Levin (Acting) Deputy Assistant Attorneys General Office of Legal Counsel Michelle E. Boardman Steven G. Bradbury (Principal) Noel J. Francisco Renée Lettow Lerner C. Kevin Marshall Howard C. Nielson, Jr. iii OFFICE OF LEGAL COUNSEL Attorney-Advisers (2005) Aditya Bamzai Daniel L. Koffsky Louis A. Chaiten Caroline D. Krass Paul P. Colborn Jonathan F. Mitchell John C. Demers Brian S. Prestes Michael J. Edney Leslie A. Simon John A. Eisenberg George C. Smith Rosemary A. Hart Luke A. Sobota Steffen N. Johnson David J. Weiner Jeremy D. Kernodle Brian M. Willen iv FOREWORD The Attorney General has directed the Office of Legal Counsel to publish selected opinions on an annual basis for the convenience of the Executive, Legislative, and Judicial Branches of the government, and of the professional bar and the general public. The first twenty-eight volumes of opinions published covered the years 1977 through 2004. The present volume covers 2005. Volume 29 includes Office of Legal Counsel opinions that the Department of Justice has determined are appropriate for publication. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. The Judiciary Act of 1789 authorized the Attorney General to render opinions on questions of law when requested by the President and the heads of executive departments. This authority is now codified at 28 U.S.C. §§ 511–513. Pursuant to 28 U.S.C. § 510, the Attorney General has delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the Attorney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of his or her function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units of the Department of Justice. 28 C.F.R. § 0.25. As always, the Office expresses its gratitude for the efforts of its paralegal and administrative staff—Elizabeth Farris, Melissa Kassier, Richard Hughes, Joanna Ranelli, Dyone Mitchell, and Lawan Robinson—in shepherding the opinions of the Office from memorandum form to online publication to final production in these bound volumes. v Opinion of the Attorney General in Volume 29 Contents Page Treatment of Expunged State Convictions Under the Immigration and Nationality Act (January 18, 2005) ......................................................... 1 Opinions of the Office of Legal Counsel in Volume 29 Contents Page Application of Record Destruction Requirements to Information Received From the National Instant Criminal Background Check System (January 11, 2005) ................................................................................... 17 Status of the Director of Central Intelligence Under the National Security Intelligence Reform Act of 2004 (January 12, 2005) .............................. 28 Religious Objections to the Postal Service Oath of Office (February 2, 2005) ................................................................................... 37 Application of the Emoluments Clause to a Member of the President’s Council on Bioethics (March 9, 2005) .................................................... 55 Whether Appropriations May Be Used for Informational Video News Releases (March 11, 2005) ...................................................................... 74 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 (June 1, 2005) .......................................................................................... 76 Authority of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to Permit Importation of Frames, Receivers, and Barrels of Non- Importable Firearms (July 6, 2005) ......................................................... 91 Whether the President May Sign a Bill by Directing That His Signature Be Affixed to It (July 7, 2005) ..................................................................... 97 Whether Conflict of Interest Laws Apply to a Person Assisting a Supreme Court Nominee (July 22, 2005) ............................................................... 127 Assignment of Certain Functions Related to Military Appointments (July 28, 2005) ........................................................................................ 132 Authority Under the Defense Base Closure and Realignment Act to Close or Realign National Guard Installations Without the Consent of State Governors (August 10, 2005) .................................................................. 139 Proposed Amendments to Military Commission Order No. 1 (August 12, 2005) ................................................................................... 155 vii Application of 18 U.S.C. § 207(c) to Proposed Communications Between Retired Navy Flag Officer and Marine Corps Commanders in Iraq Regarding Security Issues (September 13, 2005) ................................... 159 Appointments to the Board of the Legal Services Corporation (September 20, 2005) .............................................................................. 166 Waiver of Sovereign Immunity With Respect to Whistleblower Provisions of Environmental Statutes (September 23, 2005) ................................... 171 Application of 18 U.S.C. § 1913 to “Grass Roots” Lobbying by Union Representatives (November 23, 2005) .................................................... 179 viii OPINION OF THE ATTORNEY GENERAL OF THE UNITED STATES Treatment of Expunged State Convictions Under the Immigration and Nationality Act Under the definition of “conviction” contained in the Immigration and Nationality Act, for a conviction not involving a first-time simple possession of narcotics, an alien remains convicted, and thus removable under the Act, notwithstanding a subsequent state action to vacate or set aside the conviction that does not reflect a judgment about the merits of the underlying adjudication of guilt. January 18, 2005 OPINION IN DEPORTATION PROCEEDINGS The Board of Immigration Appeals (“BIA” or “Board”) referred its decision in this matter for my review pursuant to 8 C.F.R. § 3.1(h)(1)(ii) (1997).1 In its decision, the BIA determined that a new federal definition of “conviction” did not undermine Attorney General precedent that held that a person convicted of a firearms offense under state law is not subject to deportation under section 241(a)(2)(C) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(2)(C) (1994),2 if that conviction has been subsequently “expunged.” Pending my decision, the BIA reversed itself and concluded that the new federal definition of “conviction” means that an alien remains convicted notwithstanding a subsequent state action to expunge the conviction. In re Roldan, 22 I. & N. Dec. 512, 523 (B.I.A. 1999). The Ninth Circuit subsequently reversed the BIA’s decision in Roldan with respect to aliens convicted of first-time drug possession offenses under state law. Lujan-Armendariz v. INS, 222 F.3d 728, 750 (9th Cir. 2000). The Ninth Circuit’s decision does not affect the applicability of Roldan to firearms offenses, but, in light of the Ninth Circuit’s decision, I find it appropriate to certify the Board’s decision and set forth clearly the Executive Branch’s interpretation of the relevant statute. For the reasons stated below, I find that the new federal definition of “convic- tion” means that for a conviction not involving first-time simple possession of narcotics, an alien remains convicted, and thus removable under current section 237 of the INA, notwithstanding a subsequent state action to vacate or set aside the conviction. The BIA’s decision is reversed and remanded. 1 Now 8 C.F.R. § 1003.1(h)(1)(ii) (2004). 2 After the initial deportation order was entered in this matter, former section 241 of the Immigra- tion and Nationality Act was redesignated as section 237 by section 305(a)(2) of the Illegal Immigra- tion Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-598. The redesignated provision has been codified, with modifications that are not relevant here, as section 1227 of title 8, U.S. Code. 1 Opinions of the Office of Legal Counsel in Volume 29 I. A. Erick Marroquin-Garcia entered the United States without inspection in 1980. He adjusted to the status of lawful permanent resident alien pursuant to section 245A of the INA in December of 1989. See 8 U.S.C. § 1255a (1994). He pleaded guilty to unlawful possession of a firearm under California law on October 22, 1990. He was convicted in state court and placed on five years’ probation. The state court ordered, as conditions of probation, that Marroquin-Garcia spend 365 days in the county jail and pay $100 restitution and the costs of his probation. In re Marroquin, A90 509 015, slip op. at 2 (B.I.A. Feb. 21, 1997). The Immigration and Naturalization Service (“INS”) instituted deportation proceedings against Marroquin-Garcia on the basis of his state firearms convic- tion. On September 13, 1994, an immigration judge ordered Marroquin-Garcia deportable
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