Interim Decision #2543
MATTER OF MOELLER
In Deportation Proceedings
A-12371591
Decided by Board December 16, 1976
(1) Respondent, a 35-year-old native of Germany who was admitted for permanent
residence in 1962 was convicted in 1974 for the felonious possession of marihuana.
Respondent contended on appeal that the destruction of his record of conviction under
section 11361.5 of the Health and Safety Code of California made him not amenable to
deportation under section 241(a)(11) of the Immigration and Nationality Act.
(2) Where the marijuana or narcotics conviction is not under the Federal Youth Corrections Act or its Statp prynivalent, unconditional pardons. erasures of criminal records,
expungements and annulments of records of convictions do not affect deportability
under section 241(a)(11) of the Act. Similarly, destruction of records of conviction
pur.%iant to a statute designed to benefit the convicted population at large (Imstead of
just the youthful offender) has no effect on deportability under section 241(a)(11).
Matter of Lima, Interim Decision 2490 distinguished.
(3) Since respondent has a record of lawful admission for permanent residence dating back
to 1962, and there is no record that he departed the United States following his
marihuana conviction, the record will be remanded to the immigration judge to permit
respondent in deportation proceedings to file an application for a waiver of the instant
ground of deportability under section 212(e) of the Act.
CHARGE:
Order Act of 1952—Section 241(a)(11) t8 U.S.C. 1251(a)(11)]—Convicted of violation
relating to illicit possession of marihuana
ON BEHALF. DP RESPONDENT: ON BEHALF OF SERVICE:
Terence Hallinan, Esquire Philip P. Leadbetter
819 Eddy Street Trial Attorney
San Francisco, California 94109
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
The respondent appeals from a decision of an immigration judge dated
April 19, 1976 where he was found deportable as charged and his
deportation to Germany was ordered. The record will be remanded for
further proceedings.
The respondent is a 35-year-old native of Germany who was admitted
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Interim Decision #2543
for lawful permanent residence on February 12, 1962, at New York City.
On December 20, 1974, the respondent was convicted in the Superior
Court of the State of California of the felonious possession of marihuana.
The respondent contends on appeal that the destruction of the record
of conviction pursuant to section 11361.5 of the Health and Safety. Code
of California makes him not amenable to deportation under section
241(a)(11) of the Immigration and Nationality Act. The respondent's
contention is rejected.
In eases involving narcotics and marihuana violators not convicted
under the Federal Youth Corrections Act or its State equivalent, we
have limited our inquiry to the issue of whether a conviction existed.
Matter of Varagianis, Interim Decision 2537 (BIA October 15, 1976).
We have held that as far as narcotics and marihuana violations are
concerned, when the conviction is not under the Federal Youth Corrections Act or its State equivalent, unconditional pardons, erasures of
criminal records, expungements and annulments of records of convictions do not affect deportability under section 241(a)(11) of the Act. See
Matter of Varagianis, supra; Matter of Espinoza, Interim Decision
2391 (BIA 1975); Matter of Lindner, Interim Decision 2341 (BIA 1975).
We see no reason why the destruction of records should be treated
differently. Deportation is a function of Federal and not State law. It
-would be anomalous for a Federal action based on a State conviction to be
controlled by how the State chooses to subsequently treat the event.
Cruz-Martinez v. INS,
(9 Cir. 1969). 1
The present case is distinguishable from Matter of Lima, Interim
Decision 2490 (BIA 1976). There, the court records were sealed under a
statute having objectives similar to the ones expressed by Congress
when it approved the Federal Youth Corrections Act. Here, the statute
under which the destruction of the records is ordered is not intended to
benefit youthful offenders by provisions designed to eliminate or
ameliorate the lifelong stigma that may.result from a conviction. This
statute is directed to benefit the convicted population at large.
The record discloses that the respondent has a record of lawful permanent residence dating back to 1962. His deportability resulted from a
marihuana violation. The record shows no evidence that he departed
from the United States following his conviction.
Since the appeal was filed by the respondent, we have decided that
relief under section 212(c) of the Act is available to a lawful permanent
resident alien in deportation proceedings even if there is no subsequent
entry after the ground of deportability arises. See Matter of SilvaOzalle, Interim Decision 2532 (BIA September 10, 1976). Therefore, we
We are aware of Rehman v. INS, 544 P.24 71, Civ. No. 76-4022 (2 Cir. October 14,
19 76). However, that decision is not controlling in this case.
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shall remand the record so as to allow the respondent an opportunity to
file an application for relief under section 212(c) of the Act. We make no
intimation as to the merits of such an application.
ORDER: The record is remanded for further proceedings and the
entry of a new decision.
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