Interim Decision #22O5
MATTbR OF ANDRADE
In Deportation Proceedings
A-11351779
Decided by Board May 31, 1973
Expungement under California law of a conviction as a youth offender is not
tantamount to an expungement pursuant to the provisions of the Federal
Youth Corrections Act (18 U.S.C. 5021(a)); hence, respondent is deportable
under section 241(a)(11) of the Immigration and Nationality Act, as amended,
on the basis of his conviction of the offense of possession of marijuana in
violation of section 11530 of the Health and Safety Code of California,
notwithstanding an expungement of the conviction under section 1772 of the
California Welfare and Institutions Code.*
CHARGE:
Order: Act of 1952—Section 241(aX11) [8 U.S.C. 1251(a)(11)]--Any time has been
convicted of a violation of any law or regulation relating to the illicit possession of marijuana.
ON BEHALF OF RESPONDENT: Gary H. Manulkin, Esquire
3609 North Mission Road
Los Angeles, California 90031
(Briefs filed)
This is an appeal from a decision of an immigration judge
denying the respondent's application for suspension of deportation
pursuant to section 244(aX2) of the Immigration and Nationality
Act, finding him deportable as charged in the order to show cause,
and denying him the privilege of voluntary departure. The appeal
will be dismissed.
The respondent is a 22 year-old single male, native and citizen of
Mexico. He entered the United States as an immigrant on November 19, 1957. On January 26, 1971 he was convicted in the Superior
Court of the State of California, for the County of Los Angeles, of
the offense of possession of marijuana in violation of section 11530
of the Health and Safety Code of the State of California. Respond-
* Superseded. See Matter of Andrade, Interim Decision No. 2276 (B IA, Apr. 5,
1974).
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Interim Decision #2205
ent conceded his deportability on the charge contained in the
order to show cause (Tr. pp. 3, 4).
Counsel in his brief on appeal contends (1) the immigration
judge wrongfully and erroneously denied the respondent's application for suspension of deportation; (2) the immigration judge
wrongfully and erroneously denied the respondent's application
for voluntary departure; (3) the immigration judge improperly
considered the respondent's conviction to be a bar to a finding of
good moral character, notwithstanding the fact that the conviction
had subsequently been expunged pursuant to the California Penal
Code. Counsel also submitted evidence of the expungement of the
record of the conviction here.
After careful consideration of the record, including contentions
made by counsel on appeal, we are satisfied that the hearing was
fair, that deportability has been established by evidence that is
clear, convincing and unequivocal. Since the respondent would
have been found excludable under section 212(aX23) he may not be
regarded as a person of good moral character under the provisions
of section 101(fX3). Accordingly, not having established good moral
character the respondent is ineligible for the discretionary relief of
suspension of deportation or voluntary departure.
With reference to respondent's claim that the conviction has
been expunged, we note that the Attorney General has ruled that
an expungement of a narcotic conviction under the law of the
State of California has no effect upon a final finding of deportability under section 241(aXll) of the Immigration and Nationality
Act, Matter of A—F---, 8 I. & N. Dec. 429 (B IA, 1959). See alsb
Matter of G--;
9 I. & N. Dec. 159 (BIA, 1961). The courts have
sustained the Attorney General's ruling. See Garcia-Gonzales v.
INS,
344 F.2d 804 (CA. 9, 1965), cert. denied
382 U.S. 840; ;idly v.
INS,
349 F.2d 473 (C.A. 9, 1965), cert. denied
389 U.S. 932; Brcrumrigg v. INS,
356 F.2d 877 (C.A. 9, 1966); Cruz-Martinez v. INS,
404
F.2d 1198 (C.A. 9, 1968), cert. denied
394 U.S. 955; Gonzalez de Lard
v. United States,
439 F.2d 1316 (C.A. 5, 1971). Moreover, the mere
fact that the alien here was a minor at the time the crime was
committed does not of itself exempt him from the operation of the
deportation statute, U.S. ex rel. Circelta v. Sahli,
216 F.2d 33 (C.A.
7, 1954), cert. denied
348 U.S. 964; Matter of R- 5
1 I. & N. Dec. 613
;1943). C£ Adams v. United States,
299 F.2d 327 (C.A. 9, 1962);
Vernanclez-Valensuela v. Rosenberg,
304 F.2d 639 (C.A. 9, 1962).
Counsel in his supplemental brief on appeal urges that a
comparison of the California expungement statute (section 1772 of
the California Welfare and Institutions Code) with the expimgenent of a narcotic conviction pursuant to the Federal Youth
Dorrections Act (18 U.S.C. 5021(a)) indicates that the effect and
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Interim Decision #2205
purpose are precisely the same, citingMorera v. INS, 462 F.2d 1030
(CA. 1, 1971). We do not agree with this contention. What counsel
is urging is that if the State of California expunges the conviction,
disabilities flowing from it are eliminated and the federal penalty
of deportation should not then be imposed.
Deportation is a function of federal and not of state law. It
would be anomalous for a federal action, based upon a state
conviction, to be controlled by how a state may choose subsequently to treat the event. It is the fact of state conviction, not the
manner of state punishment for that conviction, that is crucial,
Garcia-Gonzales v. INS, supra. Moreover, it is clear from the
legislative history of the Federal Youth Corrections Act that
Congress intended that a "youth offender" would not have a
continuing criminal record if his conviction was set aside pursuant
to 18 U.S.C. 5021. But Congress made it equally clear that this was
a federal law binding only in the federal courts and excluding any
state action. Here, unlike Morera, supra, expungement of the
narcotic conviction was pursuant to state law under a procedure
not on the merits. On the other hand, section 5021 of the Federal
Youth Corrections Act clearly contemplates more than a "technical erasure."
In our review of this record we find that the respondent was
accorded a fair hearing; that the decision of the immigration judge
was based upon the evidence adduced at the hearing; that the
evidence upon which the decision was based was clear, convincing
and unequivocal; and that the immigration judge properly applied
the pertinent legal principles. We are aware of the sympathetic
factors present in this case. Respondent's suspension application
reflects that he has numerous close relatives in the United States,
including four brothers, who are United States citizens, and his
father, mother and a sister, who are lawful permanent residents.
Nevertheless, we have no alternative but to affirm the decision of
the immigration judge and dismiss the appeal. Accordingly, the
following order will be entered.
ORDER; The appeal is dismissed.
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