int,erim Lreemi.011 ifL4 IV
MATTER OF ZING'S
In Deportation Proceedings
A-7900466
Decided by Board March 14, 1974
The setting aside of a narcotics conviction pursuant to the provisions of the
Federal Youth Corrections Act (18 U.S.C. 5021(b)) operates to eliminate the
conviction as a basis for deportation under section 241(aX11) of the Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952—Section 241(aX11) [8 U.S.C. 1251(a)(11)J—Convicted of
violation of law relating to illicit traffic in marijuana,
to wit, the District of Columbia Code, section 33-402.
ON BEHALF OF RESPONDENT: Jack Wasserman, Esquire
1707 II Street, N.W.
Washington, D. C. 20006
This case is before us on certification from an order of the
immigration judge terminating deportation proceedings. The decision of the immigration judge will be affirmed.
The record relates to a 24-year-old single male alien, a native of
Germany, who entered the United States for permanent residence
on November 24, 1950, when he was one year of age. He was
convicted of a narcotics violation, on February 20, 1968, upon a.
plea of guilty, in the Superior Court of the District of Columbia. At
sentencing, on May 7, 1968, he received a suspended sentence and
one year probation. Thereafter the Immigration Service commenced deportation proceedings. An order of deportation was
entered on December 10, 1968 and was sustained by us on May 5,
1969. After the judge of the Superior Court was apprised of the
deportation order, he entered an order, dated July 28, 1970,
resentencing the respondent' under the Federal Youth Correc-
1 The service has not raised as an issue the question of whether the court had
authority to resentence the respondent and whether the act of so doing
eliminates the adult narcotics offense from our consideration. We shall, therefore, assume that the court was authorized in the action it took and that the new
sentence is the only one with which we are concerned.
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interun vecamou. 3r ‘ra
tions Act, 18 U.S.C. 5005, et seq. 2 The respondent could have been
sentenced under the Federal Youth Corrections Act originally, as
he was then less than 21 years of age. The judge's order extended
probation until January 2, 1971 and was nunc pro tune to May 7,
1969, the date on which the original sentence expired. The Federal
Youth Corrections Act contains a provision that convictions thereunder may be automatically set aside prior to the expiration of
probation.2 The court terminated the respondent's probation on
December 8, 1970, and issued a "Certificate of Vacation of Conviction," stating that "this Court discharged Marls Zingis from
probation prior to the expiration of the maximum period of his
probation and therefore the judgement of conviction entered by
this Court on 2-20-1968 ... has been set aside pursuant to the
provisions of Section 5021(b), Title 18, U.S. Code." Thereupon, the
respondent moved us to reopen and reconsider our decision ordering his deportation. We granted the motion and remanded to the
immigration judge on November 10, 1971 for a certified court
record of the complete disposition of the criminal offense. On
remand the immigration judge terminated the proceedings on the
basis of Mestre Morera v. INS, 462 F.2d 1030 (C.A. 1, 1972), and
certified the case to this Board.
The issue before us is whether the setting aside of a conviction
under the Federal Youth Corrections Act can operate to eliminate
the conviction as a basis for deportation under section 241(a)(11) of
the Immigration and Nationality Act. The same question was
considered in the case of Mestre Morera v. INS, supra, wherein the
court decided to set aside the order of deportation. We are in
accord with the holding of that case, and in agreement with the
immigration judge's decision to follow it.
In enacting the Federal Youth Corrections Act, Congress expressed its objectives as the rehabilitation of youthful offenders to
enable them to become useful citizens in our society, U.S. Code
Congressional Service, 81st Congress, 2d Sess., page 3983 (1950).
The desire of Congress to give youth a new chance would be
2 "§ 5006. Definitions. ...(e) 'Youth offender' means a person under the age of
twenty-one years at the time of conviction; ...."
…
"5 solo. Sentenoo. (a) If the court is of the opinion that the youth offender does
not need commitment, it may suspend the imposition or execution of sentence
and place the youth offender on probation."
s 45021. Certificate setting aside conviction. ... (b) Where a youth offender
has been placed on probation by the court, the court may thereafter, in its
discretion, unconditionally discharge such youth offender from probation prior
to the expiration of the maximum period of probation theretofore fixed by the
court, which discharge shall automatically set aside the conviction, and the
court shall issue to the youth offender a certificate to that effect."
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thwarted by deportation. Its policy to provide for expungement of
offenses by juveniles is as important a congressional policy as the
policy to deport narcotics offenders.
We are aware that the Ninth Circuit has expressed disapproval
of the holding in Mestre Morera v. INS, supra, Andrade-Gamin v.
INS, No. 73-474 (C. A. 9, 1973), affg Matter of Andrade-Gamiz,
Interim Decision No. 2205 (BIA 1973). The Ninth Circuit cited
Hernandez-Valenzuela v. Rosenberg, 204 F.2d 639 (C.A. 9, 1962), for
the proposition that the result in Mestre Morera v. INS, supra, had
already been rejected by the Ninth Circuit. Actually, Hernandez-Valenzuela v. Rosenberg, supra, is distinguishable from Mestre
Morera v. INS, supra, because the two cases did not reach the
same issue. Hernanclez-Valenzuela v. Rosenberg, supra, involved a
Federal Youth Corrections Act conviction which had not yet been
set aside. The alien urged that the conviction was not final,
because of the possibility that it could be later set aside. The court
rejected the alien's argument and stated "... the possibility of
future grace in no respect affects the present fact of guilt." In
Mestre Morera v. INS, supra, and in the case before us, the
convictions have already been set aside. Thus the holding in
Hernandez-Valenzuela v. Rosenberg, supra, did not necessarily
stand for the proposition that a narcotics conviction under the
Federal Youth Corrections Act which has been set aside remains
as a basis for deportation, because in that cash the conviction had
not been set aside. Therefore Lhe cases are distinguishable and
reconcilable.
Furthermore, we believe that Andrade-Gctmiz v. INS, supra, is
distinguishable from Mestre Morera v. INS, supra, and that the
Ninth Circuit in deciding the former case did not need to reach the
issue of the effect of a narcotics conviction which has been set
aside under the Federal Youth. Corrections Act, because Andrade-Gamiz's case did not involve a Federal Youth Corrections Act
conviction, but rather a state expungement under California law.
There is ample authority in the Ninth Circuit for the result
reached in Andrade-Gamin v. INS, supra, without reaching the
issue presented in Mestre Morera v. INS, supra. The Ninth Circuit
has held repeatedly that expungement of a narcotics conviction
pursuant to the California expungement statute does not remove
the conviction as a basis for deportation, Broumrigg v. INS,
356
F.2d 877 (C.A. 9, 1966); Kelly v. INS,
349 F.2d 473 (C.A. 9, 1965),
cert. denied
382 U.S. 932 (1965); Garcia-Gonzalez v. INS, 344 F2d
804 (C.A. 9, 1965). These cases support the decision of the Attorney
General in Matter of A—F—, 8 L & N. Dec. 429 (BIA, A.G. 1959), by
which decision this Board is, of course, bound.
It is reasonable to distinguish the Federal Youth Corrections
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Interim Decision frzwu
Act from state expungement laws. Because the former is a
Federal statute, there is no danger that it will render deportability
of aliens subject to the vagaries of state law. Avoiding such a
result was a primary object of the Attorney General in Matter of
A— F—, supra, in which he deemed state court expungements of
narcotics convictions of no effect on deportability. Furthermore, a
California expungement is not a total expungement, because it
may be considered upon sentencing of a second offense or as the
basis for the loss of various licenses and other privileges. In
addition, the California statute applies to all offenders, unlike the
Federal Youth Corrections Act which applies only to youthful
offenders.
These distinctions are significant. Under the provisions of the
Federal Youth Corrections Act, the conviction, when it is set aside,
is totally set aside. It may not be used in any way. It is a greater
remedy than a pardon, Tatum v. United States, 310 F2d 854 (D.C.
Cir., 1967). It is available solely to juveniles.
For these reasons, we have concluded that the immigration
judge's decision in terminating deportation proceedings was correct.
ORDER: The decision of the immigration judge is affirmed.
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