HADDAD

                                                            Interim Decision #2594




                               MATTER OF HADDAD

                             In Exclusion Proceedings
                                      A-30956128

                         Decided by Board June 28, 1.977
(1)Applicant was admitted to the United States for permanent residence in 1971. On May
  13, 1975, he was paroled into the United States to await exclusion proceedings following
  his return from a visit to Jordan to visit his ailing mother. The exclusion proceedings
  were brought under section 212(a)(23) of the Immigration and Nationality Act based
  on his conviction in 1974 of possession of marihuana in violation of Section
  18.1070(41)(4)(d), Michigan Statutes Annotated. However, prior to the exclusion hearing, he moved in the Michigan Court for dismissal of the proceedings and discharge
  under Section 18.1070(47), Michigan Statutes Annotated, which was granted November
  25, 1975.
(2)Section 18.1070(47), Michigan Statutes Annotated, is a first offender statute. It is a
  state counterpart to 21 U.S.C. 844(b)(1), the Federal first offender statute. A conviction
  expunged under a state counterpart of the Federal first offender statute cannot be used
  as a ground of exclusion under section 212(a)(23) of the Immigration and Nationality
  Act. Compare Matter of Werk, Interim Decision 2589 (Bit& 1977).
EXCLUDABLE:

  Act of 1952—Section 212(a)(23) [8 U.S.C. 1182(2)(23)1—Convicted prior to entry of a
                crime related to the possession of marihuana
ON BEHALF OF APPLICANT: Janet Calvo, Esquire
                                  Legal Aid Society
                                  11 Park Place
                                  New York, New York 10007
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members


   In a decision dated August 25, 1976, an immigration judge found the
applicant inadmissible under section 212(a)(23) of the Immigration and
Nationality Act. The applicant has appealed. The appeal will be sustained.
   The applicant, a native and citizen of Jordan, was admitted to the
United States for permanent residence in 1971. Con November 18, 1974,
he was found guilty of possession of marihuana, a violation of Section
18.11070(41(4)(d)), Michigan Statutes Annotated, in the District Court or
the 87th Judicial District of the State of Michigan. He was sentenced to
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pay $300 court costs, a *50.00 fine, a $4.00 statutory fee, and to serve
one years probation.
  In January of 1975, the applicant returned to Jordan to visit his ailing
mother. Upon his return to this country on May 13, 1975, he was paroled
into the United States to await exclusion proceedings. Before a hearing
was held on his admissibility, the applicant moved the District Court
judge in Michigan who had sentenced him on the marihuana charge to
dismiss the proceedings and to discharge him pursuant to Michigan
Statutes Annotated Section 18.1070(47). (See Appendix A.) An order
granting the motion was issued on November 25, 1975.
  The issue argued below and raised again on appeal is whether the
applicant is excludable tinder section 212(a)(23) of the Immigration and
Nationality Act in light of the action taken by the Michigan court under
Michigan Statutes Annotated Section 18.1070(47).
   In a recent interim decision, Matter of Werk, Interim Decision
2589 (BIA, May 26, 1977), we held that a conviction which has been
expunged under a state counterpart to 21 U.S.C. 844(b)(1), a Federal
first offender statute (See Appendix B), will not be considered a conviction for purposes of deportation. We have concluded that the rationale of
the Werk decision should also apply to eliminate such expunged convictions as grounds for exclusion under section 212 of the Immigration and
Nationality Act.
   From the text of section 1M.1070(47) of the Michigan Statutes Annotated, we have concluded that the respondent's conviction was expunged under a statute which is a state counterpart to 21 U.S.C.
844(b)(1). As a consequence, the appeal will be sustained.
   ORDER: The appeal is sustained and the applicant's admission as a
returning resident is authorized.


                                      APPENDIX A


Michigan Statutes Annotated 18.1070(47).
    Probation, no previous related convictions; violation of conditions; discharge and
  dismissal; effect; limitation; nonpublic record, purpose; rehabilitation program; fee
  See 47. (1) When any person who has not previously been convicted of any offense
  under this act or under any statute of the United States or of any state relating to
  narcotic drugs, coca leaves, mariluana, or stimulant, depressant or hallucinogenic
  drugs, pleads guilty to or is found guilty of possession of a controlled substance under
  subsection (4) of section 41 or of use of a controlled substance under subsection (5) of
  section 41, the court, without entering a judgment of guilt and with the consent of the
  accused, may defer further proceedings and place him on probation upon terms and
  conditions. Upon violation of a term or condition, the court may enter an adjudication of
  guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions,
  the court shall discharge the person and dismiss the proceedings against him. Discharge

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 and dismissal under this section shall be without adjudication of guilt and is not a
 conviction for purposes of this section or for purposes of disqualifications or disabilities
 imposed by law upon conviction of a crime, including the additional penalties imposed
 for second or subsequent convictions under section 48. There may be only one discharge
 and dismissal under this section with respect to any person. The records and identification
 division of the department of state police shall retain a nonpublic record of an arrest and
 discharge or dismissal under this section. This record shall be furnished to any court or
 police agency upon request for the purpose of showing that a defendant in a criminal
 action involving the use of a controlled substance covered in this act has already once
 availed himself of the provisions of this section.


                                      APPENDIX B

21 United States Code 844(b)(1).
    If any person who has not previously been convicted of violating subsection (a) of this
 section, any other provision of this subchapter or subchapter II of this chapter, or any
 other law of the United States relating- to narcotic drugs, marihuana, or depressant or
 stimulant substances, is found guilty of violation of subsection (a) of this section after
 trial or upon a plea of guilty, the court may, without entering a judgment of guilty and
 with the consent of sooll person, defer further proceedings and place him on probation
 upon such reasonable conditions as it may require and for such period, not to exceed one
 year, as the court may prescribe. Upon violation of a condition of the probation, the
 court may enter an adjudication of guilt and proceed as otherwise provided. The court
 may, in its diserotinn, dismiss the proceedings against such person and discharge him
 from probation before the expiration of the maximum period prescribed for such
 person's probation. If during the period of his probation such person does not violate
 any of the conditions of the probation, then upon expiration of such period the court
 shall discharge such person and dismiss the proceedings against him. Discharge and
 dismissal under this subsection shall be without court adjudication of guilt, but a
 nonpublic record thereof shall be retained by the Department of Justice solely for the
 purpose of use by the courts in determining whether or not, in subsequent proceedings,
 such person qualifies under this subsection. Such discharge or dismissal shall not be
 deemed a conviction for purposes of disqualifications or disabilities imposed by law upon
 conviction of a crime (including the penalties prescribed under this part for second or
 subsequent convictions) or for any other purpose. Discharge and dismissal under this
 section may occur only once with respect to any person.




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