GUTNICK

 Interim Decision #2075




                           MATTER OF GUTNICK
                       In Deportation Proceedings
                               A-13438882
                   Decided by Board March 17, 1971

 Where, subsequent to respondent's convictions of burglary in Arizona, court
  orders were issued setting aside the judgments of conviction and dismissing the complaints for all purposes pursuant to Article 13-1744 of the
  Arizona Criminal Code as amended by Chapter 221, section 1, effective
  January 1, 1971, such convictions have been expunged and are no longer
  convictions of crimes within the meaning of section 241 (a) (4) of the Immigration and Nationality Act.

CHARGE:
  Order: Act of 1952—Section 241 (a) (4) [8 U.S.C. 1251 (a) (4) ]—Convicted
                       of two crimes involving moral turpitude: Burglary
                       from vehicle and burglary, first degree.

ON BEHALF OF RESPONDENT:                       ON BEHALF OF SERVICE:
  Ruben Montemayor, Esquire                      Bernabe Q. Maldonado
  1414 Tower Life Building                       Trial Attorney
  San Antonio, Texas 78205                       (Brief filed)


   This case is before us on motion of the respondent to reopen
the deportation proceedings and to reconsider the Board's order
of deportation, dated October 30, 1969. The Service does not oppose the respondent's motion. The motion will be granted and the
proceedings terminated.
   The record relates to a 40-year-old unmarried male alien, a native and citizen of Canada, who entered the United States for
permanent residence on May 15, 1963. On November 6, 1968, the
respondent was convicted, after a plea of guilty, in the Superior
Court of the State of Arizona, County of Maricopa, for the offense of burglary from a vehicle. On November 19, 1968, the respondent was convicted, after a plea of guilty, in the Superior
Court of the State of Arizona, County of Pima, for the offense of
burglary, first degree. For both of these offenses the sentence was
suspended and he was placed on probation. In Matter of Gutnick,

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                                               Interim Decision #2075
Interim Decision No. 2011 (BIA, October 30, 1969), the Board
found the respondent deportable under section 241(a) (4) of the
Immigration and Nationality Act as one who, after entry, had
been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. On December
16, 1970, the United States Court of Appeals for the Fifth Circuit
denied review of the case.
   Subsequent to our decision in this matter, Article 13-1744 of
the Arizona Criminal Code under added laws, Chapter 221, section 1, was enacted into law by the Arizona legislature effective
January 1, 1971. This provides that a defendant who has fulfilled
the conditions of probation or who has been discharged from probation prior to the termination of the stated period shall be permitted by the court:
.. . to withdraw his plea of guilty and enter a plea of not guilty or if he
has been convicted after a plea of not guilty, the court may set aside the
verdict of guilty. In either case the court may thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all 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 person 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 have the same effect as if
probation had not been granted or the accusation or information dismissed.

   With the motion, counsel for the respondent presented Court
Orders issued on January 18, 1971 and January 20, 1971, respectively, pursuant to the newly enacted Article 13-1744 of the Arizona Criminal Code, setting aside the judgments of conviction
previously entered against the respondent and dismissing the
complaints for all purposes.
   In Matter of Ibarra-Obando, 

 (A.G., 1967),
the Attorney General held that a conviction which was later expunged under section 1203.4 of the Penal Code of California is
not a conviction of a crime for the purposes of section 241 (a) (4)
of the Act. With the exception of the permissive term "may," Article 13-1744 of the Arizona Criminal Code is identical with section 1203.4 of the California Penal Code. We are satisfied that the
two convictions in question in this case have been expunged and
are no longer convictions of crimes within the meaning of section
241 (a) (4). Accordingly, we will grant the respondent's motion,
withdraw our prior order of deportation, and terminate the proceedings.

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Interim Decision #2075
   ORDER: It is ordered that the motion to reopen and reconsider be and the same is hereby granted.
  It is further ordered that, upon reconsideration of this matter
as requested in the motion to reopen and reconsider, the prior
order of deportation of the Board dated October 30, 1969, be and
the same is hereby withdrawn; and that the deportation proceedings be and the same are hereby terminated.




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