IBARRA-OBANDO

Interim Decision 4E1828




                        MArrus or IRARRA-OBANDO
                       In Deportation Proceedings
                                 A-11404949 .
      Decided by Board August 2, 1966 and November 4 1986
         Decided by Attorney General December 28, 1967
Respondent's conviction in California of petty theft which was later expunged
 under section 1208.4 of the Penal Code of California is not a "conviction" of a
  grime for the purposes of section 241 (a) (4) of the Immigration and Nationality
 .4.0t. [Matter of 0—, 91. & N. Dec. 159. reaffirmed.]
CHARGE:
  Order: Act of 1952 —Section 241(a) (4) [8 U.S.C. 1251(a) (4)] —Convicted of
                        two crimes after entry, to wit: burglary in violation of
                        section 459 of the Penal Code of California, and petty
                        theft in violation of section 488 of that code.
ONBEELAIS OP RESPONDENT:                 Or BEHALF or Slaw= :
 .?'pseph rwer, Esquire                   Irving A. Appleman,
  111-14th Street, N.W.                   Appellate Trial Attorney
  Washington, D.C.
                                            Stephen 11. Baffin
  Isloyd  ildehltuxay, Esquire              Trial AbLorney
  228 McAllister Street                     (Brief submitted)
  San Francisco, California 94102
  (Brief sabniitted)

   The case" comes forward pursuant to certification by the special
inquiry officer of his order dated March 1, 1966 that the proceedings be
terminated.
   The record relates to a native and citizen of Nicaragua, 25 years old,
male, who was admitted to the United States for permanent residence
at Brownsville, Texas on October 31, 1957. On September 17, 1963 he
was convicted in the Municipal Court for the Santa Rosa Judicial District, Sonoma County, California of burglary in violation of section
459 of the Penal Code of California and was sentenced to serve ten
months in the county jail. On December 10, 1965 he was convicted in the
Municipal Court, in the City and County of San Francisco, California
of petty theft in violation of section 488 of the Penal Code of California
and was sentenced to serve 30 days in the county jail. On February 1,

                                      576
                                                    Interim Decision #1828
1966 the special inquiry officer ordered respondent deported to Nicaragua under section 241 (a) (4) of the Immigration and Nationality
Act as an alien who has been convicted of two crimes involving moral
turpitude after entry into the United States.
  On February 2, 1966 the Municipal Court of San Francisco, California issued the following order:
  Under the power vested in me to correct clerical error, and in order to correct
such error in the record of this case, and good cause appearing therefore, (sic)
  IT IS HEREBY ORDERED that the record in this case be corrected to show the
following disposition of the case on December 10, 1965, before me in Department 12:
  Imposition of sentence is suspended, and the defendant placed on probation to
the court for 50 days, provided that as a condition of probation the defendant
shall serve 30 days in County Jail.
   On February 3, 1063 an 'application for dismissal pursuant to section 1203.4 of the Penal Code of California Was made by the Public
Defender and on February 1', 1966 the Municipal Court of San rengicisco ordered that the plea or verdict of guilty heretofore entered be
set aside and a plea of not guilty be entered, and that the information
or complaint be dismissed, and that the defendant is released from
all penalties and disabilities xesulting from said offense.
   The special inquiry officer cited hatter of G—, 

in which the Attorney General upheld the holding of this Board that
an alien, whose conviction by a California court is later expunged
under section 1203.4 of the California Penal his .not been "cons
victed" of a crime for the purpose of section 241 (a).(4) of the Immigration and Nationality Act. However, in view of the decision in'the
case of BUM v. Immigration caul Naturalization Service, 350 Fad 87,
cert. den. February 21, 1966, in which the court indicated it did not
agree with Matter of 49    — , and held that an alien had been convicted
within the muffling of section 241(a) (4), notwithstanding such conviction was expunged under California procedures, the special inquify
officer certified the case to this Board to afford an opportunity to reconsider Matter of 49—, in thelight of Burr..
   Matter of 6 , 9 I.. & N. Dec. 159,. invOlied an alien who entered
                —


the United States in 1955, was convicted in a California court of
forgery of a fictitious name committed June 12, 1959 and was sentenced on July 29, 1959 to a term of one year in the county jail but
simultaneously the sentence was suspended except as to 150 days
thereof and he was placed on 'probation for three years. Following his
release from jail, respondent moved for an expungement of his conviction under section 1203.4 of the Penal Code of California. The
motion was granted, defendant's plea. of "guilty" was entered, probation was terminated and the case dismissed, pursuant to section 1203.4

                                     577
interim Decision #1828
 of the Penal Code. The Board on September 7, 1960 approved the
-order of the special inquiry officer terminating proceedings. The
Board order was referred to the Attorney General pursuant to 8 CPR
3.1(•) (1) (ii).
   Section 1203.4 of the California Penal Code provides that a defendant who has fulfilled the conditions of probation or who has been
discharged from probation prior to the termination • of its stated
period shall be permitted by the court:
   • • • to withdraw his plea of guilty and enter a plea of not guilt ; or if he
has been convicted after a plea of not guilty, the court shall set aside the verdict
of guilty; and in either case the court shall thereupon dismiss the accusations
or information against such defendant, who shall thereafter be released from
ail penalties and disabilities resulting from the offense or crime of which he
 has been convicted. The probationer shall be informed of this right and privilege
 in•his probation papers. The probationer may make such application and change
of plea in Dentin or by attorney, or by the probation officer authorized in writing; Provided, That in any subsequent prosecution of such defendant for any
 other offense, such prior conviction may be pleaded and proved and shall Lava
the same effect as if probation had not been granted or the accusation or information dismissed.
The Attorney General stated that the issue to be deviled was whether
an alien whose conviction is later expunged under this statute is an
"alien . . . who . . . is convicted of a crime.. for the purposes
of section 241(a) (4) of the Immigration and Nationality Act. (Em-
.Pha_sia supplied.) 1 The .Attorney General noted situations set forth
in the proviso as well as other exceptions, but found that in general,
an expungement under section 1203.4 renders a conviction of no force
and releases the defender from penalties and disabilities to which he
-would otherwise be subject; in other words, insofar as the law of Cali-

fornia, is concerned, the expungement statute is generally effective to
*tank a 'difeudiint to 6, Status the same as though he had not been
'convicted.
   For some 15 years the Board of Immigration Appeals has consistently held that a conviction expunge.•under the California, statute does
not afford a basis for deportation under either section 241(a) (4) of
the Immigration and Nationality Act or section 241(a) (11), relating to expulsion of aliens convicted of narcotic violations. Howlithe memorandum submitted by the appellate trial attorney raising the question of whether the California court had jurisdiction to enter its order of
February Z 1965 correcting the clerical error hi the sentence originally intpodecl, has been noted. However, it is believed that thin matter, disputing thp
authority of the Court to make en& an order, which was not considered by the
special inquiry officer nor raised by the trial attorney, should not be considered
initially on appeal but would:appear to be more properly the subject of a motion
to reconsider.

                                       578
                                               Interim Decision #1828
  ever, in Hatter of A—F—, 

 (1959), the Attorney
  General ruled that expungement in narcotic cases had no effect in
  deportation proceedings brought under section 241(a) (11), specifically limiting his decision to cases under section 241(a) (11). The Attorney General did not rule on the issue presented under section 241
  (a) (4) with respect to nonnarcotic offenses, concluding that there
  was a clear national policy militating against the abridgement of the
 term "convicted" in the cases of aliens who were able to obtain cxpungement of narcotic convictions under state law.
    In discussing the Service contention that the decision in Matter of
  A—F—, when considered with Arrellano-F7,orta v. Hoy, 

  •9th Cir., 1958) , cert. den. 

, and Woody. Hoy, 2667.2d 825
  (9th Clr, 1959), was applicable to cases arising under section 241
  (a) (4), the Attorney General pointed, out that section 1203.4 of the
 California Penal Code had not been brought into play in either case
 and, therefore, did not serve to extend the Attorney General's ruling
 in Matter of A—F— beyond the limits of section 241(a) (11).
    The case of Pino.v. Landon, 349:17.S. 901 (1955), involved an alien
 who had been deported under-section 241(a) (4) because of conviction
 of two crimes. In the second conviction • the alien had received a suspended sentence and lied been p it on probation for a period of • one
 year, at the end of the period the court revoked the sentence and;
 under a unique Massachusetts practice requiring the consent of the
 defendant, placed the case "on file".!Th600mt held that it was unable
 to say that this conviction had attained 'each finality as to support
 an order of deportation within the contemplation 'of section 241 of
the Inunigration. and Nationality Act and reversed the. judgment' of
the lower court.
    The Attorney General in Matter of G— observed that cryptic as
this cursory decision might be, it almost certainly evidenced rejection
of the Court of Appeals' view that the con.straction of section 241(a)
 (4) is purely a "federal question" to be determined in terms of the
policy behind its enactment and: without regard to state law and
procedure. The Massachusetts procedure, although revoking the sentence, leaves the plea or finding of guilt undisturbed while the California procedure, by setting aside the plea or finding of guilt, moves
a conviction even further away from an area of finality. Pine v.
Landon would seem, therefore, to make it an a fortiorari conclusion in
a nonnarcotics case that an expungement of an alien's conviction under
section 1203.4 of the California Penal Code withdraws the support
of that conviction from a deportation order under section 241(a) (4)
and brings it to the ground. The Attorney General concluded that
since what judicial precedent there was pointed to the validity of the

                                  579
Interim Decision #1828
long-standing rule of the Board of Immigration Appeals which was
invoked in the matter under consideration, and since there was no
Congressional sign post pointing in the opposite direction, he affirmed
the Board's order.
   Matter of            

 (A.G., 1959), which was referred to by the Attorney General in his decision hi Matter of G—, 

, held that a judgment of the California court, after
finding of guilt, that the proceeding 'be suspended and probation be
granted upon condition that the defendant serve one year in the county
jail, constituted a "conviction" within the meaning of section 241(a)
 (11) of the 1952 Act; and that the finding of deportability under
section 241(a) (11) of the 1952 Act based upon conviction of a state
narcotics offense is not affected by a technical "expungement" or erasure of a conviction record, as authorized by some state statutes, upon
fulfillment of conditions. of probation, such as section 1203.1 of the
California Penal Code or section 1772 of the Welfare and Institutions
Code. The Attorney General's decisions in Hatter of A—F— and Matter of G— were cited with approval by the court in Garcia-Gonzales v.
Immigration and Naturalization Service, 

 (9th Cir., 1965).
The court noted at page 810 its awareness of administrative holdings
that a convicted person who has actually received the benefits of the
provisions of section 1203.4 of the California Penal Code cannot be
deported under section 241(a) (4) of the 1952 Act but stated that it
agreed with the Attorney General as to the intention of Congress in
reference to aliens convicted of offenses mentioned in subsection (11),
expressing no view as to subsection (4)..a
  In Kelly v. Immigration and Naturalization Service, 

(9th Cr., 1965) in which the sole issue involved was whether the
petitioner was convicted within the contemplation of 8 'U.S.C. 1251
(a) (11) after conviction and sentence by a California court for violating a state narcotic provision, when a so-called ."expungement" of the
conviction had taken place under section 1203.4 of the California
Penal Code, the court followed its prior decision in Garcia-Gonzales,
supra, and repeated its agreement with the decision of the Attorney
General in Matter of A—F—, 8 1. & N. Dec. 429, 445-446. The vigorous dissent of Judge Ely in the Kelly case, pages 471 to 480, is noted.
  In Burr v. immigration and Naturalisation Service, 

(9th Cir., February 21, 1966), the alien was . convicted on March 28,
1951 of a crime involving moral turpitude,. received a suspended

   See Hernandez-VaZensuela v. Rosenberg, 

 (9th Cir., 1962)--sentence under California Youth Offender's Act (somewhat similar to 1203.4,
Calitorada Penal code) does not affect deportabffity under   S IT.SIO.A_   1251
(a) (11). "

                                    580
                                               Interim Decision 40828
sentence and was granted probation for a period of ten years on condition that he make restitution and serve ten months of his probationary period in jail, the probationary period to run concurrently
with the probationary period in another case. The alien was found
deportable under 8 U.S.C. 1251 (a) (4) as an alien who has been
convicted of a crime involving moral turpitnde (issuing insufficient
funds check with intent to cheat and defraud) committed within
five years after entry and was sentenced to confinement therefor for a
year or more. The order of deportation was affirmed in Burry. Edgar,

 (9th Cir., 1961). The alien was deported and again
entered the United States on January 7, 1963 and after a deportation
hearing it was determined that he was deportable under 8 U.S.C.
1251(a) (2) and 1252(f) as an alien who had unlawfully reentered
the United States after having previously been deported pursuant
to an order of deportation by reason of having been convicted of a
crime involving moral turpitude. Deportation was ordered on August 3;1964. The court held that the alien was not entitled to a review
of the prior deportation proceeding which ended in an unsuccessful
appeal unless there was newly presented evidence that could not have
been presented in the prior proceedings or the remedy was inadequate
or ineffective, citing section 106(e) of the Immigratiiin and Nationality Act, 8 U.S.C. 1105(c). The court held the alien who could have
raised defenses in the prior deportation hearing but did not, was not
entitled to review in proceedings brought to challenge the subsequent
deportation order entered two years after the alien's unlawful reentry
following the issuance of a deportation warrant. This holding disposed
of the primary issue in the case upholding the prior deportation order
and upholding the current deportation order under 8 U.S.C. 1252(f)
 as an alien who, had unlawfully reentered the United States after
having previously been deported pursuant to an order of deportation
by reason of having been convicted of a crime involving moral
turpitude.
   The court, however, went on to dispose of a number of other issues
raised by the petitioner and restated by the Immigration and Naturalization Service. Although there is no indication either in the administrative file, Matter of B—, A-6451540, or in the record before the
court, that the alien's conviction had been expunged under section
1203.4 of the California Penal Code, the court considered the contention that an alien whose conviction is later expunged has not "been
convicted" and the alien's reliance on Matter of G--, 

.
The court held that it had recently ruled three times to the contrary,
citing Garcia-Gonzales v. Immigration and Naturalization Service, 

; Ramirez-Villa v. Immigration and Naturalization Service,

                                  581
Interim Decision #1828

; Kelly v. immigration and Naturalization Service, 

. The court also stated that under the same reasoning adopted
by that court, in passing upon the effect of a state's expungement of
 conviction, it believes section 1251(a) (4); a federal statute, was intended to have a uniform application, and that the effect of this federal statute would not be made to depend upon the niceties and nuances
 of a state procedure.
    The additional issues considered by the court -may be considered
 in the nature -of dicta inasmuch as the court had disposed of the primary issue which involved the denial of a collateral attack upon the
 prior deportation order of 1959. The court, relying upon the three cases
 referred to, supra, in answer to Matter of G—, 

 (1960),
 was relying upon three cases all of which involved narcotic convictions
 and deportation orders pursuant to section 241(a) (11) of the Immigration and Nationality Act. These decisions were in accord with the
 Attorney ,kl.eneral's holding in Matter of A—F—, 8 L & N. Dec. 429
 (1959). Inasmuch as there was no evidence of an expungement pursuant
to section 1203.4 of the California Penal -Code, the Burr case did not
fall within the scope of the holding in Matter of G—, 9 L & N. Dec.
 159. As the Attorney General pointed out in Matter of G—, supra., the
 decisions in A;ivilarto-Floree v. Boy, 

 (9th Cir., 1958),
and Wood v. Hoy, 

 (9th Cir., 1959) , were not helpful in
assessing the consequences of expungement furthering proceedings under section 241(a) (4) or section 241(a) (11) inasmuch as section 1203.4
of the California Penal Code had not been brought into play in either
case. In like manner, the holding       Barr v Immigration and Natviraization Service, 

, is- onff no assistance.
   The Attorney General in Matter of G—, 

, endorsed
the holding of the Board ;that, a conviction expunged under the California statute does not afford the basis for deportation under section
241 except as to narcotic convictions as spelled out in Matter of A—F-

 (1959). The Attorney General in Matter of 0 2
was persuaded by the decision in Pko v. Landon, 

,
that the Supreme Court rejected the view that the construction of
section 241(a) (4) was purely a "federal question" to be determined in
terms of the policy behind its enactment and with regard to state law
and procedure. Judicial precedents subsequent to the Attorney General's holding in Matter of G— in 1961 do not support a basis for abandoning the rule stated by .the Attorney General in Matter of 0—.
Indeed, the strong dissent of Judge Ely in Kelly v. Immigration and
N atwro2isatio" n Service, 

, is an endorsement of the Attorney
General's view in Matter of G— and even expresses disagreement with


                                  582
                                                Interim Decision #1828
the opinion of the Attorney General as to narcotic convictions as held
in Matter of A—F—, 

.
  We conclude that in view of the expungement under section 1203.4
of the California Penal Code the respondent has not been convicted of
the second crime of petty theft and, therefore, the charge of deportability for conviction of two crimes after entry based upon section
241 (a) (4) of the Immigration and Nationality Act must falls The
decision of the special inquiry officer will be approved.
  We will not at this time certify our order to the Attorney General
as informally requested by the appellate trial attorney at oral argument. We will await a formal request by the Commissioner to refer the
case to the Attorney General as provided in 8 CFR 3.1 (h) (iii).
  ORDER; It is ordered that the decision of the special inquiry
officer dated March 1, 1966 terminating the proceedings be and the
same is hereby approved.
                           BEFORE THE BOARD
      The case comes forward on motion of the Service dated August 29,
1966 requesting reconsideration of our order of August 2, 1966 terminating the proceedings.
   The facts have fully been set forth in our prior order of August 2,
1966 and will be restated briefly. The case came before us pursuant to
certification by the special inquiry officer of his order dated March 1,
1966 terminating proceedings. The record relates to a native and citizen
of Nicaragua, then 25 years old, male, who was admitted to the United
States for permanent residence at Brownsville, Texas on October 31,
1957. On September 17, 1963 he was convicted of burglary in violation
of section 459 of the Penal Code of California and was sentenced to
serve ten months in the county jail. On December 10, 1065 he was
convicted in Municipal Court, San Francisco, California of petty theft
in violation of section 488 of the Penal Code of California and was
sentenced to serve 30 days in the county jail. On February 1, 1966 the
special inquiry officer ordered respondent deported under section 241
 (a) (4) of the Immigration and Nationality Act as an alien who had
been convicted of two crimes involving moral turpitude after entry
into the United States. On February 2, 1966 the Municipal Court of
San Francisco issued an order correcting the clerical error in the
record of conviction, suspended imposition of sentence, placed the
defendant on probation for 50 days, the defendant to serve 30 days as a
condition of the probation. On February 7, 1966 the Court granted an
application for dismissal, ordered that the plea of guilty theretofore

  8   Matter of   9 & N. Dec.169 (A.G.:1961).

                                    583
 Interim Decision #1828
 entered be set aside and a plea of not guilty be entered, and that the
 information or complaint be dismissed and the defendant be released
 from all penalties and disabilities resulting from said offense pursuant to section 1203.4 of the Penal Code of California.
   On the basis of the holding in Matter of G—, 

(Attorney General 1961), the special inquiry officer terminated proceedings. On Anaust 2, 1966, after consideration of the briefs filed by
 the trial attorney and by counsel for the respondent, and upon consideration of oral argument by the appellate trial attorney, we concluded that in view of the expungement under section 1203.4 of the
 California Penal Code the respondent had not been convicted of the
 second crime of petty theft and therefore the charge of deportability
 for conviction of two crimes after entry based upon section 241(a) (4)
of the Immigration and Nationality Act must fall, and we approved
the decision of the special inquiry officer terminating. proceedings.
   The present motion relies principally upon the case of Burr v. Immigration and Natutralization Service, 

.1 In our prior order
 of August 2, 1966 we considered the Burr case at length. The Buff case
involved an alien who had entered the United States an October 8, 1946,
had been convicted on March 28, 1951 of a crime involving moral turpitude, received a suspended sentence, was granted probation for a period of ten years conditioned upon his making restitution and serving
ten months of his probationary period in jail, the alien was found
deportable under 8 U.S.C. 1251 (a) (4) of the Immigration and Nationality Act for crime committed within five years after entry, and
was deported in 1959. He reentered the United States on January 7,
1963 and after a deportation hearing, it was determined that he was
deportable under 8 U.S.C. 1251(a) (2) and 1252(f) as an alien who
had unlawfully reentered the United States after having previously
been deported pursuant to an order of deportation by reason of having
been convicted of a crime involving moral turpitude, etc. The court
held•hat the alien was not entitled to a reivew of the prior deportation
proceeding which had ended in an unsuccessful court appeal (292
F2d 593) unless there was newly presented evidence which could not
have been presented in the prior proceedings or the remedy was inadequate or ineffective, citing section 106(c) of the Immigration and
Nationality Act (8 U.S.C. 1105(c)). The court held that the alien
who could have raised defenses in the prior deportation hearing but
  ' Also cited in the Service's motion were the cases of Garcia-Gonzales v. immigration and Naturalization. Service, 344 11.2d 804 (OM Cir., 1965), which involved
a conviction for unlawful possession of heroin; and Hernandez-Valenauela v.
Rosenberg, 801 lr.2d 689 (0th Cir. 1962), which likewise involved a conviction
for a narcotics offense and a sentence under the Youth Offenders' Act.

                                      584
                                              Interim Decision #1828
did not, was not entitled to a review in proceedings brought to challenge the subsequent deportation order entered two years after the
alien's unlawful reentry following the issuance of a deportation
warrant.
   We held that this holding disposed of the primary issue in the
Burr case upholding the prior deportation order and upholding the
current deportation order under 8 U.S.C. 1252(f). We held that
the additional issues considered by the court were to be considered in
the nature of obiter dicta inasmuch as the court had disposed of the
primary issue which involved the denial of a collateral attack upon_
the prior deportation order of 1959. In deciding these additional issues, the court, relying upon three cases all of which involved narcotic
convictions and deportation orders pursuant to section 241(a) (11),.
held these decisions were in accord with the Attorney General's
holding in Matter of A—F—, 

 (1959). We also held
that inasmuch as there was no evidence of an expungement pursuant to.
section 1203.4 of the California Penal Code, the Burr case did not
fall within the scope of the holding in Matter of G—, 9 I. 85N. Dec. 159.
 (Attorney General 1961), in which the Attorney General pointed out
that prior decisions in Arrellano-Flores v. Hoy, 

 (9tb
Cir. 1958) , and Wood v. Hoy, 266 F2d 825 (9th Cir., 1959) , were not
helpful in assessing the consequences of expungement proceedings
under section 1203.4 of the California Penal Code inasmuch as that
section of the California Penal Code had not been brought into play
in either case. In like manner, we held that the holding in the Burr
case, in which there was no evidence that the conviction had been
expunged pursuant to section 1203.4 of the California Penal Code, was
likewise of no assistance.
  In our order of August 2, 1966 we explored at length the holding
of the Attorney General in Matter of G—, 

, which
involved an alien who is convicted of forgery and was sentenced on
July 29, 1959 to a term of one year, the sentence was suspended except as to 150 days thereof, placed on probation for three years, moved
for an expungement of his conviction under section 1203.4 of the
Penal Code of California which was granted, defendant's plea of
"guilty" was set aside and the case dismissed pursuant to section.
1203.4 of the California Penal Code. The Attorney General held that
an alien whose conviction by a California Court is later expunged
under section 1208.4 of the California Penal Code, has not been
"convicted" of a. crime for the purposes of section 241 (a) (4) of the
Immigration and Nationality Act, noting the exception to the rule.
carved out in Matter .of A.—F—, 

 (1959), holding
that an expungement under section 1203.4 of the California Penal
                                  585
Interim Decision #1828
  Code did not affect a narcotics conviction which served as the basis of
 a ground of deportation under section 241(a) (11) of the Immigration
 and Nationality Act.
    The Attorney General, in Matter of G—, 

, noted
 that since 1943 the Board of Immigration Appeals had consistently
 held that a conviction expunged under the California statute did not
 afford a basis for deportation under section 241(a) (4) of the Immigration and Nationality Act. The Attorney General's holding in Matter of A—F—, awra, was grounded on the history of section 241(a)
  (11) and section 241(b) which is concerned with pardons and judicial recommendations against deportation and concluded that there
 was a clear national policy militating against the abridgement of the
 term "convicted" in the cam of aliens who are able to obtain expungement of narcotics convictions under state law. The Attorney General
in Matter of G—, noted that section 241(a) (4) nevertheless remains
 substantially less severe than section 241(a) (11), especially when
 viewed in conjunction with section 211(b) ; furthermore, and perhaps
 of more significance, it is not the end product of a history pointing
 to a stringent national policy of 'the nature referred to in Matter of
 A—F— regarding narcotics. The Attorney General was unable to
 agree that the holdings of Arreliano-Flores 2 and Wood 8 in neither
                                                                 ,


 of which section 1203.4 of the California Penal Code had been brought
 into play, served to extend his ruling in Matter of A—F—, beyond
the precise boundary marked off for it — i.e., beyond. the limits of
section 241 (a) (11). The Attorney General relied upon the holding in
Milo v. Landon, 

 (1955), which rejected the Court of
Appeals' view that the construction of section 241(a) (4) is purely a
"federal question" to be determined in terms of the policy behind its
enactment and without regard to state law and procedure; and concluded that in a nonnarcotics case, an expungement of an alien's conviction under section 1203.4 of the California Penal Code withdraws
the support of that conviction from a deportation order under section 241(a) (4) and brings it to the ground. The Attorney General
concluded that since what judicial precedent existed pointed to the
validity of the long standing rule of the Board of Immigration Appeals which was invoked in that matter, and since there was no congressional signpost pointing in the opposite direction, he found no
reason to reverse the rule and approved the Board's order approving
the order of the special inquiry officer terminating proceedings.
   We would hesitate to recommend a change in the holding of the
Attorney General in Matter of G—, 

, upon the basis
 2 

 657 (9th Cir. 1058). cert. dented 

.
  

 (9th (3r. 1959).

                                           586
                                               Interim Decision #1$28
of the oblique, subsidiary holding reached in the case of Burr v. Immigration and Naturalization Service, 

, in which there
was no actual expungement under section 1203.4 California Penal
Code. The Burr case adds nothing to Matter of G.— which was not
already considered in the latter case.
   The other matters set forth in the motion are largely a rehash or
a restatement of arguments previously considered and rejected by the
Attorney General in Matter of G—. The two cases which have been
decided in the 9th Circuit since the Attorney General's decision in
Matter of G—, Hernandez-VaZensuela v. Rosenberg, 

 (1962), and Garcia-Gonzales v. Immigration and Naturalization Service, 

 (1965), both involve narcotics offenses and deportation orders under section 241(a) (11) of the Immigration and Nationality Act (8 U.S:C. 1251 (a) (11) ) . The latter case cited with
approval the Attorney General's holding in. Matter of A 17 , 8  -   —



Z. & N. Dec. 429, without expressing any view as to snb-section (4).
   In summary, in Matter of         

, the Attorney General restated the general rule that an alien, -whose conviction by a California court is later expunged under section 1203.4 of the California
Penal Code, has not been "convicted" of a crime for the purpose of
section 241(a) (4) of the Immigration and Nationality Act and limited
his exception to that ruling as expressed in Matter of A—F—, SI. & N.
Dec. 429, to narcotic offenses which, despite an expungement, still remain a basis for deportation under section 211 (a) (11) of the Act. The
primary holding in Burr v. Immigration and Naturalization Service,
350 F211 87 (9th Cir. 1965), was that the prior deportation proceedings, which ended in an unsuccessful appeal to the courts, could not be
collaterally attacked unless newly presented grounds which could not
have been presented in the prior proceedings or the remedy was inadequate or ineffective as provided by section 106 (t) of the Immigration
and Nationality Act (8 U.S.C. 1105(e) ). The additional holdings in
the Burr case involved a crime which constituted a felony and in which
the question of expungement under section 1203.4 of the California
Penal Code was not present. These holdings are urged as grounds for
reconsideration of the Attorney General's rule in Matter of G . In  —


view of the well reasoned rationale of the Attorney General's holding
in Matter of G—, the Blum ease appears to present very weak judicial
precedent upon which to base so significant a step, and does not constitute persuasive judicial precedent upon which to base a holding contrary to Matter of       It may be noted that in the numerous congressional amendments which have been made in the Immigration and
Nationality Act of 1952, culminating in the Act of October 3, 1965,
Congress has given no signpost or indication that the rule in Matter of

                                  587
     321-654-69-39
Interim Decision #1828
0—, of which it undoubtedly was aware, should be abandoned or
modified. The motion will be denied.
  ORDER: It is ordered that the motion be and the same is hereby
denied.

             BEFORE THE ATTORNEY GENERAL ON REVIEW
  In this case the Board of Immigration Appeals has affirmed the decision of the Special Inquiry Officer terminating deportation proceedings. The Board's decision has been referred to me for review at the
request of the Commissioner of Immigration and Naturalization, under
8 CFR 3.1(h) (1)
  These proceedings were instituted on the charge that the respondent had been convicted of two crimes involving moral turpitude and
was thus deportable under section 241(a) (4) of the Immigration and
Nationality Act (8 U.S.C. 1251 (a) (4) ). Subsequently, his second conviction was expunged by a California courtomder section 1202.4 of the
 California Penal Code." The Special Inquiry Officer thereupon terminated these proceedings because of the long-established administrative
rule that a non narcotics conviction which has been expunged pursuant
                  -


to such state procedure is not a "conviction" for the purpose of section
241(a) (4) of the Immigration and Nationality Act. The Immigration
and Naturalization Service wishes me to reconsider that rule, pointing
to Burr v. immigration and Naturalization Service, 

 (9th
Cir. 1965), cert. den. 383 'U.S. 915 (1966), as indicating judicial disagreemert with the rule.
   Prior to 1969 the Board had consistently hold for over fifteen years
that a conviction expunged in accordance with such state procedure
does not afford the basis for deportation either under section 211 ( a) (4)
or under section 241 (a) (11), the latter of which relates to convictions
in narcotics cases. In Matter of A.—F—, 

 (1959),
the Attorney General overruled the Board as to narcotics convictions,
stating, at p.446:
  I limit my disagreement to the precise issue presented—namely, a deportation
Proceeding brought under § 241 (a) (11), as it may be affected by state laws of the
nature of the-Oalifornia statutes considered herein.
In Matter of G—, 9 L & N. Dec. 159 (1961), Attorney General Rogers
held that his ruling in Matter of A—F—was indeed to be limited to
    The Board has properly declined to pass upon the question, raised by the
Immigration and Naturalization Service for the first time on appeal, as to the
jurisdiction of the California court to issue its none pro tune "corrective" order
of February 2, 1966, without which respondent's conviction could not have been
expunged under section 1203.4. That question is this not beftire me now and I
express no views on it.

                                        588
                                                    Interim Decision #1828
 narcotics convictions, because of the particular legislative history of
 section 241(a) (11), which disclosed a "clear national policy militating
 against the abridgement of the term 'convicted' in the cases . . . of
 narcotics convictions" (Id., at 167), but that as to nonnarcotics cases
 there was "no reason to reverse the [Board's long-standing] rule." Id.,
 at 169.
    In the present case the Board, in its order of August 2, 1966, approved the decision of the Special Inquiry Officer and, in its order of
 November 4, 1966, denied the Service's motion requesting reconsideration of its prior order. Both orders were accompanied by opinions
 amply supporting the Board's view that the Service had not demonstrated sufficient reason to warrant administrative re-examination of
 this rule, which has been hi effect since at least 1943.
   Attorney General Rogers, in Hatter of G—, carefully considered the
instant question and concluded that in determining the effect of expungement of convictions on an alien's deportability a distinction is
 warranted between narcotics convictions for the purpose of section
241 (a) (11) and other convictions for the purpose of section 241(a) (4).
   In the Burr case, decided in 1965, the Court of Appeals for the
Ninth Circuit indicated its disagreement with Matter of G—, stating
that its holding in three earlier cases of that year,' to the effect that
expungement of an alien's narcotics conviction does not affect his deportability, "applies equally" to deportability in a non-narcotics case.
350 F.2d• at 90. This statement, however, was clearly not necessary to
the decision in Burr. The issue raised there by the alien as to the
effect of expungement of a non-narcotics conviction on deportability
was purely hypothetical, since he sought to attack collaterally a prior
deportation grounded on a conviction which had not been and could
not have been expunged.' In this context the court properly rejected
the alien's contention summarily. It could have done so by distinguishing Matter of G— as inapplicable because it involved non-narcotics convictions which had actually been expunged.
  Moreover, it should be noted that although in Burr the court
cursorily equated narcotics convictions with non-narcotics convictions,

   Garcia-Gonzales v. INS, 

 (9th Clr. 1965), cert. den. 382 UPS.
840 (1965) ; Ramirez-Villa v. INS, 

 (9th Clr. 1965), cert. den. 

 (1965) ; Eellj v. INS, 

 (9th Ob. 1965), cert. den. 

 (1965).
   As the Acting General Counsel of the Service noted in his memorandum in
support to the Service's motion for reconsideration of the Board's August 2
order (p. 4), Burr could not have qualified for expungement under section
1203.4 of the California Penal Code; and as noted in the Solicitor General's
brief in opposition to Burr's petition for certiorari (p. 8), he could not horn
qualified for expungement under ueclion 1203.4a.

                                     589
Interim Decision #1828
 only a few months earlier a different panel of the same court, in one
 of the cases relied on in Burr, had referred to the distinction made
 by the Attorney General in Matter of        between narcotics and other
 convictions, following a full discussion of the general question of the
 effect of expungment on deportability, and expressly disclaimed any
 views as to that distinction, deliberately limiting its holding to narcotics cases. Garoia-Gonsaliesv.INS,supra, at 810.
    Similarly, in the most recent Ninth Circuit case involving the question of the effect of expungement on deportability for a narcotics
 conviction, the court merely reaffirmed its 1965 holding that expungement under California Penal Code § 1203.4 "does not wipe out the
 conviction , . . for the purposes of §241(a)(11) of the Immigration
and Nationality Act." Brownrigg v. INS, 

 877, 878 (1966)
 (emphasis added). It seems significant that Judge Barnes, who wrote
the Brownrigg opinion and had also written the Burr opinion, did
not cite the latter as precedent for or otherwise assert a broader
ruling, to the effect that expungement does not wipe out a conviction
for the purpose of determining deportability under any provision of
the Immigration and Nationality Act.
   In these circumstances, I do not feel that the court's statement in
Burr, which is relied upon by the Service, requires reconsideration
of the Attorney General's carefully considered ruling in Matter of

  The Board's decision is affirmed.