Interim Decision #2936
MATTER OF FORSTNEEt
In Deportation Proceedings •
A-30461480
Decided by Board February 24, 1988
Expungement of a narcotics conviction pursuant to section 137.225 of the Oregon Revised
Statutes does not eliminate the conviction for purposes of deportation because that statute
is not a state counterpart to the federal first offender statute, 21 U.S.C. 844(b)(1).
CHARGE:
Order. Act of 1952—Sec. 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of a narcotics
violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Gerald II. Rubinson, •squiie Kendall D. Warren
1001 S. W. Fifth Avenue, Suite 1500 General Attorney
Portland, Oregon 97204
BY: Milhollan, Chairman; Maniatis, Dunne, and Vacca, Board Members
The respondent has appealed from a decision of the immigration judge
dated November 9, 1979, denying his request to terminate deportation
proceedings and ordering him deported from the United States. The
appeal will be dismissed.
In a decision dated November 2, 1976, the immigration judge found
the respondent deportable under section 241(a)(11) or the Immigration
and Nationality Act, 8 U.S.0 1251(a)(11), by virtue of his conviction in
the Circuit Court of the State of Oregon for Lane County on December
1, 1975, of illegal furnishing of narcotics in violation of section 167.207 of
the Oregon Revised Statutes. The respondent's appeal from that decision was dismissed by an order of the Board on August 9, 1977, which •
was affirmed on petition for review. Forstner v. INS, 579 F.2d 506 (9
Cir. 1978). The respondent's petition for writ of certiorari was also
denied. INS v. Forstner,
99 S.Ct. 841 (1979).
• On February 28, 1979, the respondent filed a motion to reopen which
was granted by the Board on March 26, 1979_ At a reopened hearing,
the respondent argued that deportation proceedings should be terminated because the conviction on which his deportation order was based
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Interim Decision #2936
had been expunged pUrsuant to seetion 137.225 of the Oregon Revised
Statutes.' Having reviewed the statute involved, the iminigration judge
concluded that it was not a counterpart to the federal first offender
statute, 21 U.S.C. 844(b)(1), because its application Was not limited to
convictions of first offenders. He further noted, that a conviction expunged
under the Oregon statute could subsequently be considered for pur-
' poses of determining eligibility for ether expungements, as well as in
certain instances in Civil proceedings. Thus he found that the respondent's
conviction was not eliminated for purposes of deportation.
In a well-reasoned brief on appeal, the respondent argues that the
Oregon statute should be considered a first offender statute and that
consequently his expunged conviction should no longer provide a basis
for deportation. Citing the criteria set forth in Matter of Kaneda, 16
I&N Dec. 677 (BIA 1979), he contends that the Oregon statute is a
counterpart to the federal statute because its purpose is to give a first
offender a second opportunity by eliminating the effects of is conviction
and because its benefits are limited to a small class of individuals consist-
' Section 137.225 provides in pertinent part:
(1) At any time after the Japan of three jearis from the date of pronouncement of
judgment, any defendant who has fully compliedwith and performed the sentence of the
court and whose conviction is described in subsection (5) of this section by motion may
apply to the ,court wherein that conviction was entered for entry of an order setting
aside the conviction.
(3) . . . Upon the entry of such an order, the applicant for purposes of the law shall hi
deemed not to have been previously convicted and the court shall issue an order sealing
the record of conviction and other official records in the ease, including the records of
arrest resulting in the criminal proceeding.
.-
(5) The provisions of subsection (1) of this section apply, to a conviction ot
(a) A Class C felony.
(b) The crime of pocsession of the narcotic drug marijuana when that crime was
•punishable as a felony only.
(a) A crime punishable as either a felony or a misdemeanor, in the discretion of the
court. •
(d) A misdemeanor, including a violation of a municipal ordinance, for which a jail
sentence may be imposed.
(e) A violation described in ORS 167.207, 167.217 or 167.222.
.:
(6) The provisions of subsection (1) of this section do not apply to:
..
(b) A person convicted, within the 10-year period immediately preceding the filing
of his motion pursuant to subsection (1) of this section, of more than one offense,
excluding motor vehicle violations, whether the second or additional convictions nemirred
in the cam action in which the conviction as to which relief is sought occurred or in
another action. Notwithstanding subsection (1) of this section, a conviction which has
been set aside under this section shall be considered for the purpose of determining
whether this paragraph is applicable.. .
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Interim Decision #2936
ing of those convicted of committing only minor offenses who have not
been otherwise convicted in the previous 10 years. lie further claims
that he would have been eligible for relief as a first offender if convicted
in a federal court and therefore should be treated in an equal manner to
others convicted i4 federal courts or in state courts which have counterpart first offender statutes.
We are unable to agree with the respondent's assertion that the Oregon expungement statute is a counterpart to the federal first offender
statute. Its language, unlike that of other statutes recognized as being
equivalent to the federal statute, does not parallel the provisions of 21
U.S.C. 844(bX1). See Matter. of Soda, 17 I&N Dec. 550 (BIA 1980);
Matter of Kaneda, supra; Matter of Haddad,
16 I&N Dec. 253 (BIA
1977); Matter of Werk,
16 I&N Dec. 234 (BIA 1977). In Matter bf Soda,
supra, we noted that the federal first offender statute and each of its
state counterparts provided for withholding of adjudication of guilt by
the court and discharge without a conviction upon successful completion
of probation. Cf. Matter of Zangwill,
18 I&N Dec. 22 (BIA 1981). We
found the first offender statutes to be distinguishable in this respect
from procedures for expunging an existing conviction.
• In order to be eligible for relief under the Oregon statute, an offender's
sentence must have been completed and 3 years must have elapsed since
pronouncement of judgment before a conviction may be set aside. This
procedure clearly differs from that set forth in the first offender statutes where no conviction exists. Since section 137.225 merely eliminates
the stigma of a convictiorr after fulfillment of the penalties imposed, it is
akftn to an expungement statute which we have long held will not eliminate a conviction for deportation purposes. See Matter of Golehan,
I&N Dec. 92 (BIA 1981); Matter of Moeller,
16 I&N Dec. 65 (BIA
1976); Matter of Varagianis,
16 I&N Dec. 48 (BIA 1976); Matter of
Tucker,
15 I&N Dec. 337 (BIA 1975), affd Tucker v. INS,
551 F.2d 313
(9 Cir. 1971); Matter ofEspinoza, 15•I&N Dec. 328 (BIA 1975); Matter
of Lindner,
15 I&N Dec. 170 (BIA 1975); Matter of Wo;ig , 12.1&N Dec.
721 (BIA 1968); Matter of Kelly,
10 I&N Dec. 526 (BIA 1964), affd
Kelly v. INS,
349 F.2d 473 (9 Cir.), cert. clorciecl,
382 U.S. 932 (1965);
Matter of A F ,
8 I&N Dec. 429 (A.G. 1959).
- -
The Oregon statute's applicability is also not restricted to only a small
class of offenders. Although the respondent argues that eligibility for
expungement of a conviction in Oregon is limited to persons convicted of
- certain minor offenses, section 137.225(5Xc) extends the provisions of
the statute to any crime, whether a felony or misdemeanor, which the
court in its discretion elects to expunge. Moreover, although the statute
limits eligibility for expungement to persons not convicted of another
crime in the previous 10 years, we are not persuaded that this provision
renders those to whom relief is available equivalent to first offenders.
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Interim Decision #2986
We therefore conclude that section 137.225 of the Oregon Revised Statutes is not a state counterpart to the federal first offender statute.
We also find no merit in the respondent's argument that he should not
be penalized for having been convicted in a state court rather than a
federal court where he w9uld have been eligible for treatment as a first
offender.' That contention was previously addressed and rejected in
Matter of Golshan, supra. We noted there the Attorney Cencral's conclusion in .Matter of A-F-, supra, that Congress did not intend to permit
aliens convicted of narcotics violations to escape deportation on the
basis of a state procedure authorizing a technical erasure of the
conviction. The policy determination set forth by the Attorney General
in that case has also received the approval of the, courts. See Kolios v.
INS, 532 F.2d 786 (1 Cir.), cert. denied,
429 U.S. 884 (1976); Gonzalez
de Lara v. United States, 439 -F.2d 1316 (5 Gin 1971); Cruz-Martinez v.
INS,
404 F.2d 1198 (9 Cir. 1968), cert. denied,
394 U.S. 955 (1969);
Garcia-Gonzales v. INS,
344 F.2d 804 (9 Cir.), cert. denied,
382 U.S.
840 (1965); but see Rehman v. INS,
544 F.2d 71. (2 Cir. 1976). We
therefore find the respondent's contentions to be unconvincing and conclude that the expungement of his conviction pursuant to section 137.225
does not eliminate it for purposes of deportation.
Accordingly, the appeal will be dismissed.
ORDER The appeal is dismissed.
Board Member James P. Morris has abstained from consideration of this
case.
2 We note the respondent's citation in this regard to the Solicitor General's memorandum included in the Appendix to Matter of Andrade,
14 I&N Dec. 651 (BIA 1974). It
should be pointed out that both the Solicitor General's statement and the Motion of
Commissioner, which is also part of the Appendix in that case, add the caveat that the
positions stated there do not apply to expungement under state laws that do not have a
federal counterpart.
377
