SEDA

Interim Decision #2832




                                 MATTER OF SEDA

                           In Deportation Proceedings

                                     A-20879583

                        Decided by Board October 10, 1980

(1) Section 101(0(3) of the Immigration and Nationality Act, 8 U.S.C. 1101(0(3),
  precludes a person from establishing good moral character if he has been convicted of
  or admits the commission of a crime involving moral turpitude during the period for
  which good moral character is required to be established.
(2) The crime of forgery, to which the respondent pleaded guilty, is a crime involving
  moral turpitude.
(3) A conviction exists for immigration purposes when there is a judicial finding of guilt,
  the court takes action which removes the case from a pending status, and the action of
  the court is considered a conviction by the state for at least some purposes.
(4) The Georgia Act for Probation of Pirst Offenders provides that upon a verdict or a
  plea of guilty or nolo contendere, but before an adjudication of guilt, the court may,
  without entering a judgment of guilt, defer proceedings, place the defendant on
                    ,


  probation, and subsequently discharge the defendant without court adjudication of
  guilt so that he is not considered to have a criminal conviction. Ga. CodeAnn. sections
  27-2727, 27-2728.
(5) A person sentenced under a first offender statute which provides for withholding of
  adjudication of guilt by the court and discharge without conviction upon successful
  completion of probation is not considered to be convicted for immigration purposes.
  Matter of Kaneda, 16 LEN Dec. 677 (BIA 1979); Matter of Haddad., 

  (BIA 1977); and Matter of Werk,

 (BIA 1977), modified.
(6) Where a plea of guilty results in something less, than a conviction, the plea, without
  more, is not tantamount to an admission of commission of crime for immigration
  purposes, so the respondent, who was not convicted, is not statutorily ineligible for
  voluntary departure as a person precluded from establishing good moral character.
(7) Notwithstanding the absence of a conviction by reason of the Georgia Act for
  Probation of First Offenders, a plea of guilty to the crime of forgery is a significant
  adverse factor in determining whether a favorable exercise of discretion is warranted.
(8) The respondent, who has no family ties or other equities to offset the adverse factors
  of his guilty plea to the crime of forgery and the withdrawal of church sponsorship on
  the basis of his objectionable behavior, is denied voluntary departure as a matter of
  discretion.
CHARGES:
  Order. Act of 1952—Sec. 241(a)(9) [8 U.S.C. 1251(a)(9)]—Nonimmigrant student—failed to comply with conditions of status

                                           550
                                                      Interim De.cision #2832
  Lodged: Act of 1952—Sec. 241(a)(2){8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
                          remained longer than permitted
ON BEHALF OF RESPONDENT: Dale M. Schwartz, Esquire
                       1400 Candler Building
                       Atlanta, Georgia 30303
BY: Milhollan, Chairman; Maniatis, and Farb, Board Members. Concurring Opinion:
     Maguire, Board Member. Concurring in Part, Dissenting in Part Appleman. Board
    Member


   In a decision dated February 15, 1979, the immigration judge found
the respondent deportable on his own admission on the lodged charge,
under section 241(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(2), as a nonimmigrant who remained longer than
authorized. He further denied the respondent's request for voluntary
departure. The respondent has appealed from the immigration judge's
denial of voluntary departure_ The appeal will be dismissed.
   The respondent is a 34-year-old native and citizen of Kenya who
entered the United States on September 12, 1973, as a nonimmigrant
student. His status was subsequently changed to that of an exchange
visitor, and his stay was extended to March 22, 1978. At deportation
proceedings, he conceded deportability as an overstay, but denied that
he had failed to maintain his student status as charged in the Order to
Show Cause. The respondent's wife and four children, all natives and
citizens of Kenya, reside in the United States with him.
   At deportation proceedings, the trial attorney introduced evidence
that the respondent had pleaded guilty on January 27, 1978, to the
offense of forgery in the first degree in the Superior Court of the State
of Georgia for Fulton County. The record indicates that the respondent
was placed on probation for 5 years under the provisions of the Georgia
Act for Probation of First Offenders and was ordered to make restitution in the amount of $3,585.00. The immigration judge determined on
the basis of that court order that the respondent was statutorily
ineligible for voluntary departure under section 101(f)(3) of the Act, 8
U.S.C. 1101(f)(3), as a person who had been convicted of a crime
involving moral turpitude.
   On appeal, the respondent argues that he has not been "convicted" of
the forgery offense because under the Georgia statute relating to first
offenders under which he was sentenced, proceedings are deferred
while the defendant is on probation, and upon fulfillment of probation,
the defendant is discharged without court adjudication of guilt. Ga.
Code Ann. sections 27-2727 and 27-2728. He further cites as applicable
our decisions recognizing that first offender statutes may eliminate the
effect of a conviction for immigration purposes. See Matter of Kaneda,
Interim Decision #2832

 (BIA 1979); Matter of Haddad,

 (BIA
1977); Matter of Werk, 

 (BIA 1977).
   In order to be eligible for voluntary departure, an alien must establish, inter cilia, that he is, and has been, a person of good moral
character for at least 5 years immediately preceding his application
for such relief. Section 244(e) of the Act, 8 U.S.C. 1254(e). Under section
101(f)(3) of the Act, a person is precluded from establishing good moral
character if he has been convicted of or admits the commission of a
crime involving moral turpitude during the statutory period.
   The record indicates that the respondent pleaded guilty to forgery,
which is a crime involving moral turpitude. See Matter of Jimenez, 

 (BIA 1973); Matter of A—, 

 (BIA. 1953). We,
therefore, must determine whether for immigration purposes the respondent can be considered to have been "convicted" of that offense
under Georgia law or to have admitted commission of the crime.
   This Board has repeatedly held that a conviction exists for immigration purposes when the following elements are present: (1) there has
been a judicial finding of guilt, (2) the court takes action which
removes the case from the category of those which are (actually or in
theory) pending for consideration by the court—the court orders the
defendant fined or incarcerated, or the court suspends sentence, (3) the
action of the court is considered a conviction by the state for at least
some purpose. Matter of Robinson,

 (BIA 1979); Matter
of Varagianis, 

 (BIA 1976); Matter of Pikkarainen, 

 (BIA. 1963); Matter of L—R—, 

 (BIA 1959).
  The pertinent sections of the Georgia statute relating to first
offenders provide as follows:
 Probation for first offenders; when applicable; violation of terms of probation—
      Upon a verdict or plea of guilty or a plea of nolo contendere by [sic] before an
   adjudication of guilt, the court may, in the case of a defendant who has not been
   previously convicted of a felony, without entering a judgment of guilt and with the
   consent of the defendant, defer further proceeding and place the defendant on
   probation as provided by the Statewide Probation Act [sections 27-2702 through 27-
   2726.1]. Upon violation of the terms of probation, or upon a conviction for another
   crime, the court may enter an adjudication of guilt and proceed as otherwise
   provided. No person may avail himself of the provisions of this law [sections 27-2727
   through 27-2732] on more than one occasion.
 Same; discharged probationer not to be considered to have criminal conviction;
   records of probation—
     Upon fulfillment of the terms of probation, or upon release by the court prior to
   the termination of the period thereof, the defendant shall be discharged without
   court adjudication of guilt. Such discharge shall completely exonerate the defendant
   of any criminal purpose ; shall not affect any civil right nr lihertics, and he shall not
   be considered to have a criminal conviction. Should a person be placed under
   probation under this law [sections 27-2727 through 27-2732], a record of the same
   shall be forwarded to the office of the State Probation System and to the Identifies-

                                          552
                                                          Interim Decision #2832
   tion Division of the Federal Bureau of Investigation. Ga. Code Ann. sections 27-2727,
   27-2728 (emphasis added).
  In interpreting these provisions, the Supreme Court of Georgia has
stated that during the probationary period imposed, the defendant's
trial has, in effect, been suspended, and if he successfully completes the
probationary sentence without violations, no formal act of conviction
is rendered. See Favors v. State, 214 S.E2d 645 (Ga. 1975); State v.
 Wiley, 

 (Ga. 1974). Thus, the clear language of the statute
and the judicial interpretation thereof indicate that a defendant
sentenced under the Georgia Act for Probation of First Offenders is
not convicted unless and until he violates the terms of his probation or
is convicted of another crime, at which time an adjudication of guilt
may be entered by the court. Therefore, under the standards previously set forth, the probationary sentence imposed on a defendant
under that Act should not be considered to be a "conviction" for
immigration purposes. See Pin() v. Landon, 

 (1955); cf.
Matter of Winter, 

 (BIA 1967, 1968); Matter of G—, 

 (BIA 1960; A.G. 1961).
   In previous decisions, this Board has treated other first offender
statutes, the language of which is nearly identical to the Georgia Act,
as expungement statutes. See Matter of Kaneda, supra; Matter of
Haddad, supra; Matter of Werk, supra. In Werk we accepted the
Service policy that the federal first offender statute, 21 U.S.C.
844(b)(1), which dealt only with narcotics convictions, was comparable
to the Federal Youth Corrections Act, 18 U.S.C. 5005, et seq. That Act,
as well as its state counterparts, had been held to expunge narcotics
convictions of youth offendersc for deportation purposes. See Matter of
Andrade, 

 (BIA 1974); Matter of ingis, 

(BIA 1974). We, therefore, held that convictions under the federal first
offender statute could be considered expunged for deportation
purposes.
  Our subsequent inquiry in Haddad and Kaneda, which dealt with
state first offender statutes, was limited to determining whether the
statute involved was the state counterpart of the federal statute. Thus,
the threshold question of whether there was a conviction in existence
which could be expunged was never addressed. Although in Werk we
quoted a Service memorandum stating that the "legislative history
indicates that discharge and dismissal under [21 U.S.C. 844(b)(1)1 shall
not be deemed conviction of a crime," we have continued to refer to the
federal first offender statute and its state counterparts as having the
effect of expunging a conviction.
  We now hold that a person sentenced under a first offender statute,
which provides for withholding of adjudication of guilt by the court
and discharge without conviction upon successful completion of proba-
Interim Decision #2832
tion, shall not be considered to be "convicted" for immigration purposes. Our decisions in Matter of Werk, supra, Matter of Haddad,
supra, and Matter of Kaneda, supra, are modified to comport with this
view.
   We must next determine whether the respondent's plea of guilty
constitutes an admission of commission of the crime, which also would
render him ineligible for voluntary departure. Ordinarily, a plea of
guilty in a criminal prosecution is regarded as an "admission" within
 the meaning of the immigration laws. Blumen v. Hoff, 

 (9
 Cir.), cert. denied, 

 (1935); Matter of K—, 

 (S.I.O. 1959, ETA 1959, A.G. 1961); Matter of P , 

 (BIA
                                                 —


 1951). However, where a plea of guilty results in something less than a
 conviction, it has been held that the plea, without more, is not
 tantamount to an admission of commission of the crime for immigration purposes. Matter of Winter, supra. Since we have found that the
 respondent's guilty plea does not amount to, a conviction, it also cannot
 be considered to be an admission of commission of the crime. Accordingly, we find that the respondent is not statutorily ineligible for
 voluntary departure as a person precluded by section 101(1)(3) from
 establishing good moral character.
    A grant of voluntary departure is a matter of discretion, however,
and an alien must not only establish that he is statutorily eligible, but
also that he is worthy of discretionary relief. See Matter of Turcotte,

 (BIA 1967); Matter of Mariann 

 (BIA
1965). Consideration of an application for voluntary departure involves
many factors, including the alien's prior immigration history, the
nature of his entry, and his violations of the immigration and other
laws, as well as the length of residence in this country, close family
ties, and humanitarian needs. See Matter of Gamboa, 

(BIA 1972).
   In the instant case, the respondent pleaded guilty to the crime of
forgery. Although we have determined that such a plea does not render
him statutorily ineligible for voluntary departure, we believe it is a
significant adverse factor to be considered in deciding whether a
favorable exercise of discretion is warranted. CI Matter of Tureotte,
supra; Matter of Pitzoff, 

 (BIA 1962).
  In addition, the church sponsor who took the respondent into his
home upon his arrival in the United States testified at deportation
proceedings that he asked the respondent to leave his house and that
the church withdrew its sponsorship of the respondent due to his
behavior. Although the respondent attempted to rebut the accusations
made against him, we believe that the witness's testimony and the fact
that church sponsorship was withdrawn must be viewed as negative
factors in our determination on discretion.
                                  554
                                                 Interim Decision #2832
  The respondent's wife and children are citizens of Kenya whose
status in this country is dependent on that of the respondent. Therefore, he cannot be considered to have close family ties in the United
States. No other equities have been presented by the respondent to
offset the adverse factors in this case. Accordingly, we conclude that
voluntary departure should be denied as a matter of discretion. The
appeal will be dismissed.
  ORDERS The appeal is dismissed.
DISSENTING IN PART AND CONCURRING IN PART:
                                            Irving A. Appleman,
                                            Board Member
   I concur in that portion of the decision which finds there was no
conviction in view of the Georgia first offender statute under which the
respondent was sentenced, and in the denial of voluntary departure as
a matter of discretion.
   However, I am disturbed by the remainder of the majority opinion.
The purpose of the comments regarding Matter of Werk, 

 (BIA 1977), Matter of Haddad, 

 (BIA 1977), However, I am disturbed by the remainder of the majority opinion. The
purpose of the comments regarding Matter of Werk, 

(BIA 1977), Matter of Haddad, 

 (BIA 1977), and Matter
of Kaneda,

'77 (BIA 1979), is not clear. Those holdings are
not necessarily germane to an inquiry into the language and meaning
of the Georgia statute we are concerned with here, and if the intent is
to impeach them, it is done in a singularly imprecise and unscholarly
way. Thus the majority notes: "In previous decisions this Board has
treated other first offender statutes, the language of which is nearly
identical (emphasis supplied) to the Georgia Act, as expungement
statutes." No analysis or comparison is made of the statutes in question, but the decisions in Matter of Werk, supra, Matter of Haddad,
supra, and Matter of Kaneda, supra, are "modified" to comport with
the present decision even though it is not shown what, or why, "modification" is needed.
   The decision in Matter of Werk was premised on a Wisconsin first
offender statute which, according to representations made by the
Immigration and Naturalization Service, was a counterpart to 21
U.S.C. 844(b)(1), which, in turn, was the equivalent, in the narcotics
field, of the Federal Youth Corrections Act, 18 U.S.C. 5010, et seq. Since
both 21 U.S.C. 844(b)(1) and 18 U.S.C. 5010 are statutes which suspend
the imposition or execution of sentence after a finding of guilt, it is
clear that the Service motion to terminate in Werk rested on an
assumption there was a conviction in that case. Whether the Service
Interim Decision #2832
would agree that termination was warranted in Werk on an assumption there was no conviction is not known, nor has the Service been
given a chance to brief or argue the point. Nor is it clear whether, in
casting doubt on the interpretations of state first offender statutes
such as that in Werk, the majority also questions the reasoning in
decisions involving the application of 21 U.S.C. 844(b)(1} to narcotics
convictions, or the Federal Youth Corrections Act to other "convictions" (see e.g., Matter of Zingis, 

 (BIA 1974)).
  In point of fact there is a very significant difference between (a) the
Georgia statute, and (b) the Wisconsin statute in Work, the Michigan
statute in Haddad, and the Virginia statute in Kaneda. That difference
has been completely overlooked or ignored by the majority, and makes
any "modification" very questionable.
  In Matter of 0—, 

 (BIA 1957), in defining a "conviction" for deportation purposes, this Board attempted to explain the
difference between a statute suspending the imposition or execution of
sentence, and one which specifically postponed any consideration of a
case. Only in the latter instance does, the criminal proceeding fail to
achieve the finality necessary to support an order of deportation. Id. at
543. All of the statutes involved (i.e., in Werk, Hculdad, and Kaneda, as
well as here), speak of the non entry of a judgment of guilt_ Only nne,
                                -


however, the Georgia statute, specifically - stipulates deferment of
proceedings "before an adjudication of guilt . ." Ga. Code Ann. section
27-2'727 (emphasis supplied). The entry of formal judgment of guilt in a
criminal proceeding is a quite different matter from an adjudication of
guilt. See generally Matter of 0—, id. at 542. Hence, even though under
the Georgia statute the "prior finding of guilt may be pleaded and
proven as if an adjudication of guilt had been entered ..." in the event
of a subsequent prosecution for another offense (Ga. Code Ann. section
27-2730), and the respondent is still on "probation" (Ex. 5), I nevertheless agree that there was no conviction here, but rather a complete
deferment of the criminal proceeding without any finding of guilt. Cf.
de Lara v. U.S., 439.F.24 1316 (5 Cir. 1971); Pino v. Landon, 

(1955).
  On the other hand, a conviction acquires sufficient finality to sustain
deportability when no further consideration is required as to innocence or guilt. Matter of Johnson, 

 (BIA 1965). This
was the case in Matter of Haddad, Matter of Werk and Matter of
Kaneda, supra. Under the statutes in those cases the defendants were
clearly adjudged guilty, although no formal entry was made in the
criminal record, or, if made, it was subsequently eradicated. All that
was involved was a suspension of imposition of judgment and sentence,
with subsequent expungement, and this is a conviction for deportation
purposes. Matter of Cruzculo,14I&N Dec. 513 (BIA 1973). Significantly,
                                    MR
                                                             Interim Decision #2832
if there were no "convictions" in the Werk-type cases, as the majority
now appears to find, notwithstanding adjudications of guilt, then
deportation for hard narcotics "convictions," after expungement
under statutes such as section 1772 of the Welfare and Institutions
Code of California, arguably is now open to challenge.'
   I see no reason for disturbing the earlier decisions at this time. They
appear to be correct and, in any event, their consideration is not
necessary to the determination in this case. If the majority thought
them relevant, one would have hoped for, and expected, a more satisfactory and lucid justification for "modification" than that the statutes
involved are "nearly identical." Since the relief is being denied as a
matter of discretion in any event, it is hard to understand the need for
a rash venture into this particular legal thicket. Bagam,asbad v. INS,

 (1976). I expressly dissent from the attack on those
precedents.
CONCURRING OP Turns Mary P_ Maguire, Board                         Member
  Contrary to the suggestion in the dissent, the intent of the majority
opinion is not to impeach, but to clarify the Board's former decisions
which were decided on a theory which the majority now finds to be
incorrect. Therefore, in order to be legally precise and consistent in our
rulings, the majority believes that they should be amended to reflect
the Board's current opinion. In my view, it would indeed be unscholarly
to leave unrevised a decision which the majority believed to be founded
on legally erroneous conclusions.
   The dissent correctly points out that the Board's decision in Matter
of Werk, 16 I&N Dee. 234 (B1A 1977), was premised on a Service memo
which referred to the federal first offender statute, 21 U.S.C. 844, as the
"equivalent" in the narcotics field of the Federal Youth Corrections
Act. However, the dissent states further that these statutes are similar in that both suspend tife imposition or execution of sentencing
after a finding of guilt. Examination of the statutes reveals the fallacy
of that statement
  Under the Federal Youth Corrections Act, the court may suspend
the imposition or execution of sentence of a youth offender and place
him on probation. It may then discharge him from probation, which
   ' Attorney General, of course, and the Ninth Circuit have consistently upheld deportsbility in such cases despite expungement. Matter c(A—F—, 

 (A.G. 1959),
(led, Arrellano-Flores v. Hoy, 

, cert. denied, 

(1960); cf. Matter of
Andrade,14 IAN Dec. 651 (CIA 1974); see also Matter of G—, 9 Itr,N Dec.159 (A•G, 1961);
Kelly v. INS, 

 (9 Cir. 1965), cert. denied, 282 'U.S. 932 (1965); Garth Gonzales
v. INS, 

 (9 Cir. 1965). The dicta as to Werk, etc., would seem to fly in the face
of these holdings.
                                            err,
Interim Decision # 2832
effectively sets aside the conviction. We have found that this statute
provides for a total expungement which eliminates the conviction as a
basis for deportation. See Matter of Berker, Interim Decision 2511
(BIA 1976); Matter of Zingis, 

 (BIA 1974); see also
Matter of Andrade, 

 (BIA 1974).
  The federal first offender statute, on the other hand, provides that
there is no conviction if the court defers proceedings without entering
a judgment of guilt and later discharges the defendant and dismisses
the proceedings against Mm after successful completion of probation.
This statute, as well as each of the state statutes we have considered,
specifies that such discharge and dismissal shall be without court
adjudication of guilt and shall not be deemed a conviction. The Service,
in fact, notes in its memorandum that the legislative history of the
statute supports the conclusion that no conviction exists upon discharge and dismissal.
  Thus, it is clear that these two statutes are by no means procedurally
equivalent to one another. They are comparable, however, in that they
provide a means to ameliorate the stigma of conviction for a certain
class of offenders to whom Congress sought to extend leniency. I
believe that the Service's use of the term "equivalent" was intended to
equate the effect rather than the legal function of the two statutes and
to reflect its conclusion that an alien sentenced under either statute
should not be subject to deportation. Inasmuch as the Service recognized that no conviction resulted under the first offender statute, and
advocated that it be treated in the same manner as the Federal Youth
Corrections Act, I have no doubt that it would approve of the conclusion reached in the majority opinion.
   I would note, however, my confusion with the dissent's question
regarding the application of the Board's reasoning to cases involving
21 U.S.C. 844(b)(1) in narcotics convictions or the Federal Youth Corrections Act in other convictions. The federal first offender statute, by
its very language, is limited to narcotics offenses, so it can only be
applied in such cases. Furthermore, as we have distinguished the
procedure used in first offender statutes from that in the Federal
Youth Corrections Act and its state counterparts, I do not see how it
could logically be inferred that the majority's decision in this case
affects our decisions regarding the Federal Youth Corrections Act in
either narcotics or non-narcotics cases. See Matter of Zingis, supra;
Matter of Nagy, 

 (BIA 1968). Moreover, if the majority
had believed that such decisions were altered by its opinion in this
case, the majority would have so stated.
  I also wish to note my disagreement with the conclusion in the
dissent that there are significant differences between the Georgia
statute and the other first offender statutes which this Board has
                                  558
                                                  Interim Decision 112832

examined. The difference claimed is that the Georgia statute specifies
that the proceedings may be deferredi before an adjudication of guilt,
whereas the others speak only of the nonentry of a judgment of guilt. It
is also stated in the dissent that the entry of a formal judgment of guilt
is different from an adjudication of guilt, with citation being made to
Matter of 0—, 

, 542 (BIA 1957).
   I would first point out that 21 U.S.C. 244(b)(1), on which our rulings
regarding the state first offender statutes rely, states that if a person is
found guilty, after trial or upon a plea of guilty, the court may, without
entering a judgment of guilt, defer proceedings and place him on
probation and, upon violation of the conditions of probation, may enter
an adjudication of guilt and proceed to sentencing. Furthermore, each
of the state statutes also provides for deferment of proceedings following a plea or finding of guilty without a j udgment of guilt being entered
by the court. Inasmuch as proceedings are deferred under each of the
statutes and no judgment of guilt is entered by the judge, I am unable
to determine what, if any, are distinguishing factors.
   In regard to the contention that a judgment of guilt differs from an
adjudication of guilt, I maintain that these terms are synonymous. See
Black's Law Dictionary, 63 (5th ed. 1979); Webster's New Collegiate
Dictionary, 15 (1977). I believe that the dissent has confused the
situation where the court, upon a guilty plea or jury verdict, finds the
defendant guilty and enters a judgment of guilt but declines to impose
a sentence, and that where the court, also following a plea or verdict,
decides to defer proceedings and refrains from entering a judgment of
guilt. These two circumstances were discussed in Matter of 0—, supra,
where it was concluded that the former case resulted in a conviction
while the latter did not. I would agree and cite the Federal Youth
Corrections Act as an example of a case where judgment may be
entered but imposition of sentence suspended, and the first offender
statutes as a situation where no adjudication of guilt is made by the
court. Under either set of circumstances, a guilty plea or finding of
guilt by a jury may be present, but the subsequent act of the judge
determines whether a conviction exists for immigration purposes. If
proceedings are deferred, there is no conviction, but a conviction
results if the court enters a judgment, regardless of whether sentence
is actually imposed or either the imposition or execution of sentence is
suspended. See Pino v. Landon, 

(1955); Matter of Robinson,

 (BIA 1979); Matter of 0—, supra.
   It is also argued by the dissent that this case is distinguishable from
our previous decisions in that the defendants there were adjudged to
be guilty by the court and were sentenced to fine or imprisonment or
both. This is true. However, in each case, the conviction was later set
aside, placing the defendant back in the position of one whose guilt had
Interim Decision #2832

not yet been adjudicated. Imposition of the sentence was not merely
suspended, as the dissent suggests, but the conviction, including the
adjudication of guilt, was totally eradicated. See Matter of aneda, 

 (MA. 1979); Matter of Sirhan,18 I&N Dee. 692 (BIA 1970);
Matter of O'Sullivan, 

 (BIA 1963). The court then
resentenced the defendant under the first offender statute and discharged him by dismissing the proceedings pursuant to the statute. I,
therefore, remain convinced that such discharge and dismissal under
each of the first offender statutes does not amount to a conviction, as is
manifest from language of each statute, and believe that our decision
correctly so states.




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