Interim Decision #2689
MATTER OF KANEDA
In Deportation Proceedings
A-22205731
Decided by Board February 28, 1979
(1) Virginia Code Section 18.2-251 is a counterpart to the Federal First Offender Statute,
21 U.S.C. 844(b)(1); and a marihuana charge dismissed pursuant to such a statute may
not be used as a basis for deportability under section 241(a)(11) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(11).
(2) The test for whether a state statute constitutes a counterpart to the Federal First
Offender Statute is whether it complies with the Congressional intent to give an
offender a second opportunity without the conviction remaining for some state purpose.
(3) The time a respondent was incarcerated prior to the dismissal of the charge is not
determinative on the issue of whether a drug charge was properly dismissed pursuant
to a state first offender statute _
(4) Defeating deportability is a permissible purpose of a state first offender statute.
Rehman v. INS, 544 F.2d 71 (2 Cir. 1976).
(5) Absent a showing of lack of jurisdiction, a Virginia State trial judge's order rescinding
sentence, and placing an alien under probation on condition he serve and pay the
previously imposed sentence, and that on completion the charge would he dismissed
pursuant to Virginia Code Section 18.2-251, as a first offender, followed by a later order
dismissing the charge, had the effect of defeating deportability based on that conviction.
(6) Lack of jurisdiction to dismiss a criminal charge after conviction must be affirmatively
shown. Matter of Sirhan,
13 I. & N. Dec. 592 (BIA 1970); Matter of O'Sullivan,
10 I. &
N. Dec. 320 (BIA 1963).
CHARGE:
Order. Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]--Convicted of possession
of marihuana
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Eau S. Masse], Esquire George Indelicato
122 E. 42nd Street Appellate Trial Attorney
New York, New York 10017
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The respondent appeals from a decision by the immigration judge
dated May 15, 1978, finding the respondent deportable under section
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241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11),
as an alien convicted of possessing marihuana under the law of the State
of Virginia and denying him the privilege of voluntary departure. The
appeal will be sustained and the deportation proceedings will be terminated.
The respondent is a 21 year old native and citizen of Japan who
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entered the United States on September 3, 1976, as a nonimmigrant
student in order to attend Syracuse University. On February 25, 1977,
he was arrested by Virginia authorities, while he was riding an Amtrak
train, for possession of approximately 4,448 grams of marihuana. On
July29, 1977, he pleaded guilty to a misdemeanor charge of possession of
marihuana in violation of Virginia Code Section 18.2 248. He was then
-
sentenced to a term of 12 months confinement in the county jail, four
months of which were suspended, as well as a fine (Ex. 2).
On October 28„ 1977, the same Virginia judge entered an order
rescinding the respondent's sentence, placing him under probation on
the condition thathe serve and pay the previously imposed sentence and
fine, and providing that upon completion of the jail term the marihuana
charge would be dismissed pursuant to Virginia Code Section 182-251.
the State's first offender statute. On August 15, 1978, the Virginia judge
entered an order dismissing the charge against the respondent pursuant
to Virginia Code Section 18.2-251.
The first issue we must address in this case is whether the Virginia
statute is a counterpart to the Federal First Offender Statute, 21
U.S.C. 844(b)(1). In Matter of Work, Interim Decision 2589 (BIA 1977),
we held that when a conviction has been expunged under the provisions
of a state statute that is the counterpart of 21 U.S.C. 844(b)(1), that
conviction may not be used as a basis for deportability under section
241(a)(11) of the Act. In Werk, we extended to expungements under
first offender statutes the same rationale we had previously applied to
expungements of convictions pursuant to the Federal Youth Corrections Act (18 U.S.C. 5010, et seq.) and its state counterparts. See Matter
Zingis, 14 I. & N. Dec. 621 (BIA 1974); Matter of Andrade, 14I, & N.
Dec. 651 (BIA 19'74). The rationale behind the above statutes was to
give qualifying offenders a second opportunity to lead law-abiding lives
and that discharge and dismissal under such statutes shall not be
deemed conviction of a crime. See H.R. Rep. No. 91-1444, 91st Cong.,
2nd Sess., 1970 U. S. Code Cong. & Admin. News 4566, at 4616.
The test for whether the Virginia statute constitutes a counterpart to
die Federal First Offender Statute is whether it complies with the
Congressional intent to give an offender a second opportunity without
/laving the conviction remain for some state purpose. Thus, in Matter of
l'aragianis, Interim Decision 2537 (BIA 1976), we rejected a resporrd ent's argument that a New Hampshire statute was a counterpart to the
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Federal statute because under the New Hampshire law the expunged
conviction could be subsequently considered for sentencing in a later
conviction and, therefore, the conviction was still operative for some
state purpose.
Another limitation on the effectiveness of an expunged conviction for
removing deportability is where such expungement is available to all
convicts and not limited to a small class such as youthful or first offenders as in the Federal statutes. See Matter of Moeller, Interim Decision
2543 (BIA 1976).
After reviewing the Virginia statute we conclude that it is the counterpart to 21 U.S. 844(b)(1) Like the Federal statute the class of offenders eligible for discharge under Virginia Code Section 18.2-251 is
limited to first offenders. The operative language in both statutes is
very similar. Both statutes state that an offender can only use the
statute once, and do not provide for any of the other collateral consequences that would normally follow a conviction under another statute.
See Appendix A.
The second issue we must address is whether the Virginia judge
actually complied with the Virginia statute. The Service contends that
under the dismissed charge the respondent was incarcerated longer
than he would have been under the July 29, 1977, sentence. The Service
further points out that the wording of the October 28, 1977, order
explicitly stated that the conviction was rescinded and the charges
dismissed "for purposes of any deportation proceeding". Thus, the Service contends that the trial judge's action only constituted a recommendation against deportation under section 241(b) of the Act, 8 U.S. C.
1251(b), which is unavailable to those convicted of a drug offense. See
generally, Appleman, The Recommendation Against Deportation., 58
A. B. A.J. 1294 (1972). Finally, the Service contends that the respondent
was ineligible for first offender treatment because his July 29, 1977,
guilty plea was a prior conviction.
The time which the respondent had to spend incarcerated as a result
of the trial judge's order is not determinative against the respondent.
Altogether the respondent was incarcerated for five and a half months.
The respondent in Andrade served two years in a California Youth
Authority institution. See Matter of Andrade, supra, at 654. Neither is
the fact that the judge intended to defeat the respondent's deportation
relevant to this case. In Rehman v. INS,
544 F.2d 71 (2 Cir. 1976), the
court specifically stated that defeating deportability was a permissible
purpose of a state first offender statute.
544 F.2d at 75.
The final argument of the Service that the trial judge lacked jurisdiction to give the respondent first offender treatment is also defective.
The trial judge specifically rescinded the respondent's conviction in his
October 28, 1977, order. We have held that where a conviction is revoked
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and the charge dismissed by a trial judge that conviction cannot be used
to sustain a finding of deportability. Matter of G—, 7 I. & N. Dec. 171
(BIA 1956). We have also specifically held that when the Service claims
that a trial judge lacked authority to dismiss a criminal charge after a
conviction, such lack of jurisdiction must be affirmatively shown. Matter
of Sirhan,
13 I. & N. Dec. 592 (BIA 1970); Matter of O'Sullivan,
10 I. &
N. Dec. 320, 339 (BIA 1963). Here the Service has submitted no evidence that the trial judge lacked jurisdiction under Virginia law to
rescind the respondent's conviction. Furthermore, the prosecution has
not challenged the trial judge's rescission and dismissal of the charges
which also indicates that the trial judge's actions were proper.
Moreover, since the Congressional purpose behind the Federal Youth
Offender Act and the Federal First Offender Act is to give such offenders another change to lead law-abiding lives, without the stigma of a
criminal conviction, we must focus on the ultimate consequences to the
respondent subsequent to his release and the dismissal of the charges
pursuant to Virginia Code Section 18.2-251. The record contains an
order signed by Judge E. Ballard Baker of the Circuit Court of Henrico
County, Virginia, dated August 15, 1978. The order states that the
respondent complied with all conditions imposed by the court and that,
therefore, the charge against him was dismissed.
In deportation proceedings the burden is on the Government to prove
deportability by clear, convincing, and unequivocal evidence. Woodby v.
ENS, 385 U.S. 277 (1966) and 8 C.F.R. 242.14(a). Deportation statutes
are to be construed narrowly against the Service. Barber v. Gonzales,
347 U.S. 637, 642 (1954). Here, the Service has not produced any
evidence that the respondent is still subject to any of the collateral
consequences normally associated with a prior conviction of a crime.
We, therefore, find that the Service has failed to prove by clear, convincing, and unequivocal evidence that the dismissal of the respondent's
marihuana charge pursuant to the Virginia First Offender Statute failed
t o remove the basis for deportability under section 241(a)(11) of the Act_
Accordingly, the appeal will be sustained and the deportation proceedings terminated.
ORDER: The appeal is sustained and the deportation proceedings are
t erminated.
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Interim Decision #2689—Appendix
APPENDIX A
Virginia Statute
§18.2-251.
Whenever any person who has not previously been convicted of any
offense under this article or under any statute of the United States or of
any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding
against him for violation of such an offense dismissed as provided in this
section pleads guilty to or enters a plea of not guilty to possession of a
controlled substance under §18.2-250, the court, upon such plea if the
facts found by the court would justify a finding of guilt, 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 and dismissal under
this section shall be without adjudication of guilt and is a conviction only
for the purposes of applying this section in subsequent proceedings.
(Code 1950, §54-524. 101.3, 1972, c. 798; 1975, cc. 14, 15; 1976, c. 181.)
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