BERKER

                                                             Interim Decision #2511




                               MATTER OF BERKER

                            In Deportation Proceedings                     .1


                                      A-11780841

                        Decided by Board August 2, 1976
(1) Under the provisions of the Federal 'Youth Corrections Act (18 U.S.C. 5005, et seq.),
  no distinction is drawn between narcotics offenses relating to simple possession of
  marijuana and narcotics offenses involving more serious drug violations. For that
  reason, distinctions as to the relative gravity of narcotics offenses should not be made in
  applying the benefits of the Federal Youth.Corrections Act to immigration cases.
(2) Expungement of respondent's conviction for conspiracy to possess marijuana with
  intent to distribute in violation of 21 U.S.C. 1346, under the provisions of the Federal
  Youth Corrections Act (18 U.S.C. 5021(b)), opeAted to remove that conviction as a
  basis for deportation under section 241(a)(11) of the Immigration and Nationality Act.
CHARGE:
  Orden Act of 1952—Seetiou 241(a)(11) [8 U.S.C. 1251(a)(11)J—Convicted of any law
                       relating to illicit possession of marijuana
ON BEHALF OF RESPONDENT:            A. Kendall Wood, Esquire
                                    3232 Fourth Avenue
                                    San Diego, CA 92103


   In a decision dated October 30, 1975, the immigration judge found the
respondent deportable as charged and ordered his deportation to Germany. The respondent has appealed from that decision. The appeal will
be sustained and the proceedings will be terminated.
   The respondent, a native and citizen of Germany, was admitted to the
United States for permanent residence in 1958. On July 30, 1975 he was
convicted in the United States District Court for the Southern District
of California of the offense of conspiracy to possess marijuana with
intent to distribute in violation of 21 U.S.C. 846 and was sentenced
pursuant to the Federal Youth Corrections Act, 18 U.S. C. 5005, et seq.
(Hereinafter referred to as "FYCA".) On.December 19, 1973 the imposition of sentence was suspended and the respondent was placed on
probation. Prior to the expiration of the period of his probation, on
August 22, 1975, the court discharged the respondent from probation
and set aside the respondent's conviction pursuant to the expungement
provisions of FYCA. 

(b).
                                           725
Interim Decision #2511

    The immigration judge found the respondent deportable as an alien
who has been convicted of a conspiracy to violate a law relating to the
illicit traffic in marijuana under section 241(a)(11) of the Immigration
and Nationality Act. Counsel for the respondent, however, contends
that under our decision in Matter of Zingis, 14 L & N. Dec. 621 (BIA
1974), the respondent is not deportable.
    In Zingi6 we held that the setting aside of a conviction under FYCA
eliminates the conviction as a basis for deportation under section
241(a)(11) of the Act. I See also Mestre Morera v. INS, 

(1 Cir. 1972).
   However, from dicta in Matter of Espinoza, 

 (BIA
1975), it is reasonable to infer that our holding inZingis limits recognition
of expungernents under FYCA to offenses involving simple possession of
marijuana. Inasmuch as the respondent was convicted of the offense of
conspiracy to possess marijuana with intent to distribute, the immigration judge held that the expungement does not wipe out the conviction as
a basis for deportation under section 241(a)(11).
   Notwithstanding dicta to the contrary in Espinoza, our holding in .gintris applies to all convictions which have been set aside
under the FYCA. In Zingis it is stated that the alien had been convicted
of a "narcoics violation," to wit, violation of a law relating to illicit
traffic in marijuana.
   Furthermore, in Zingis we declared that, in enacting FYCA, Congress expressed its objective as the rehabilitation of youthful offenders
to enable them to become useful citizens in our society. Under FYCA no
distinctions were drawn between the offense of simple possession of
marijuana and offenses involving more serious drug violations. In view
of the Cong:essional policy in this area, distinctions should not be made
in the applic ation of FYCA benefits in immigration cases. Any language
in Espinoza-Rodriguez which suggests a contrary interpretation is
hereby disapproved.
   We note -hat the interpretation of Zingis set out above is in accord
with the mcst recently stated position of the Service.
   Accordingly, the appeal will be sustained and the proceedings will be
terminated.
   ORDER: The appeal is sustained; the.proceedings are terminated_




  1 T71 Mottitr of Andrade, 

 (BIA 1974). we accorded like treatment to

expungements state convictions by youths who were sentenced under a state provision
similar to FYCA.

                                          726