Interim Decision #2875
MATTER OF GOLSHAN
In Deportation Proceedings
A-17850804
Decided by Board July 28, 1981
(1) Since section 9.95.240 of the Revised Code of Washington Annotated is a general
expungemerst statute, a state court's order pursuant to that statute dismissing criminal
charges after successful completion of probation does not eliminate a narcotics conviction
for purposes of deportation.
(2) Although the respondent's narcotics conviction renders him deportable notwithstanding
its expungersent, the respondent is eligible for relief under section 212(c) of the Act,
8 U.S.C. 1162(c), and, therefore, the record is remanded to give him an opportunity
to apply for discretionary relief.
CHARGE:
Order. Act of 1952—Sec. 241(a)(1I) (8 U.S.C. 1251(1)(11)1—Convicted for possession
ot a narcotic drug
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Ira Fiekisteel, Esquire Gerald S. Hurwitz
Allen E. Kaye, P.C. Appellate Trial Attorney
233 Broadway, Suite 3702
New York, New York 10007
By: Milhollan, Chairman; Maniatis. Maguire, Morris, and Vacca, Board Members
In a decision dated June 9, 1980, the immigration judge found the
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(11), and ordered him deported from
the United States. The respondent has appealed from that decision. The
record will be remanded.
The respondent is a native and citizen of Iran who last entered the
United States as a returning permanent resident on June 10, 1978. The
record reflects that he has been a lawful permanent resident since
November 19, 1970, and that he has a United States citizen wife and
child.
The respondent was arrested at the time of his entry and was charged
with possession of controlled substances. On December 11, 1978, the
respondent vvas convicted for possession of opium on his plea of guilty in
the Superior Court of the State of Washington for King County. The
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Interim Decision #2875
court deferred imposition of sentence for 2 years on the conditions that
the respondent be subject to probation during that period, that he pay
court costs, and that he donate 50 hours of service in a drug treatment
facility.
On July 25, 1979, the respondent submitted a motion to the Superior
Court requesting that he be permitted to withdraw his plea of guilty and
enter a plea of not guilty and that the case then be dismissed. In an
order dated that same day the court granted the requested relief, dismissing the charges against the respondent.
The immigration judge determined that the charges against the respondent were dismissed pursuant to a Washington statute which, in his
opinion, is a rehabilitative provision based on compliance with probation
requirements and is not limited to youthful or first offenders. He concluded that the respondent was not relieved from deportation by virtue
of dismissal of the charges because, for purpoies of deportation, narcotics convictions may only be eliminated pursUant to the federal first
offender statute, 21 U.S.C. 844(b)(1), .or the Federal Youth Corrections
Aet, 18 U. S.C. 5010, et seq., or the state counterparts thereof. Thus, he
found the respondent deportable on the basis of his conviction. He further stated that he refused to accept the respondent's application for
relief from deportation pursuant to section 212(c) of the Act, 8 U.S.C.
1182(e), on the basis of decisions holding that such relief was unavailable
to narcotics offenders in the Ninth Circuit.
On appeal, the respondent contends that proceedings should be terminated because his conviWon was set aside and charges were dismissed
pursuant to section 9.9g.240. of the Revised Code of Washington
Annotated.' The respondent concedes that this statute is not a first
offender statute. However, he argues that since he was a first offender
and the State of Washington has no first offender statute, he should not
be penalized because he was tried in a state court rather than a federal
court. He further asserts that since the court employed the only available means to alleviate the stigma of the conviction and preclude
deportation, we should not frustrate its efforts to rehabilitate the
respondent. In the alternative, he argues that he should be permitted to
apply for section 212(c) relief and for political asylum.
Section 9.95.240 of the Revised Code of Washington Annotated provides as follows:
Dismissal of information or indictment after probation completed. Every defendant
who has fulfilled the conditions of his probation for the entire period thereof, or who
shall have been discharged from probation prior to the termination of the period thereof,
may at any time prior to the expiration of the maximum period of punishment for the
offense for which he has been convicted be permitted in the discretion of the court to
I The court's order of dismissal does not state the statutory authority for ifs action.
However, as the respondent notes, the language of the order parallels that of the statute.
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Interim Decision #2875
withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted
after a plea of not guilty, the court may in its discretion set aside the verdict of guilty:
and in either case, the court nay thereupon dismiss the information or indictment
against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer
shall be informed of this right in his probation papers: Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and
proved, and shall have the same effect as if probation had not been granted, or the
information or indictment dismissed.
As the respondent concedes, this statute clearly is not a state counterpart to the federal first offender statute. Cf . Matter of Seda, 17 I&N
Dec. 550 (BIA 1980); Matter of Kaneda,
16 I&N Dec. 677 (BJA 1979);
Matter of Haddad,
16 I&N Dec. 253 (BIA 1977); Matter of Werk,
16
I&N Dec. 234 (BIA 1977). Nor is it directed toward rehabilitation of
youthful offenders. CJI Matter of Beaker,
15 I&N Dec. 725 (BIA 1976);
Matter of Lima,
15 I&N Dec. 661 (BIA 1976); Matter of Andrade,
14
I&N Dec. 651 (BIA 1974); Matter of Zingis, 14 I&N Dee. 621 (BIA
1974). We have held that only those narcotise violators who have been
sentenced under the Federal Youth Corrections Actor the federal first
offender statute or their state equivalents will be exempt from deportation under section 241(a)(11) of the Act. See Matter of Kaneda, supra;
Matter of Mueller,
16 I&N Dec. 65 (BIA 1976); Matter of Varagianis,
16 I&N Dec. 48 (BIA 1976). It has long been held that the elimination of
a narcotics conviction by a general expungement statute, unconditional
pardon, or destruction or annulment of the record will not prevent
deportation. See Matter of Moeller, supra; Matter of Varagianis, supra;
Matter of Tucker,
15 I&N Dec. 337 (BIA 1975), aft d Tucker v. INS,
551
F.2d 313 (9 Cir. 1977); Matter of Espinoza,
15 I&N Dec. 328 (BIA 1975);
Matter of Lindner, 15 UN Dec. 170 (BIA 1975); Matter of Wong,
12
I&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. denied,
382 U.S.
932 (1965); Matter of A-F-,
8 I&N Dec. 429 (A.G. 1959).
In Matter of A-F-, supra, the Attorney General examined the effect
of expungement of a narcotics conviction pursuant to section 1203.4 of
the California Penal Code on the deportability of the convicted alien
under section 241(a)(11) of the Act_ He concluded that Congress did not
intend to permit such aliens to escape deportation on the basis of a state
procedure authorizing a technical erasure of the conviction. The courts
have shown accord with that policy determination. See Kotios v. INS,
532 F.2d 786 (1 Cir.) cert. denied,
429 U.S. 884 (1976); Gonzales de Lara
v. United States,
439 F.2d 1316 (5 Cir. 1971); Cruz-Martinez v. INS,
404 F.2d 1198 (9 Cir. 1968), cert. denied,
394 U.S. 955 (1969); but see,
Raman v. INS,
544 F.2d 71 (2 Cir. 1976).
Section 9.95.240 of the Revised Code of Washington Annotated is
very similar to section 1203.4 of the California Penal Code in that it
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Interim Decision #2875
provides a rehabilitative procedure for dismissal of criminal charges
after the convicted person has successfully completed probation. The
language of these statutes is almost identical. We believe therefore that
the Washington statute clearly falls within the policy determination set
forth by the Attorney General in Matter of A-F-, supra, which precludes avoidance of deportation by one whose narcotics conviction has
been eliminated by a state expungement procedure. Moreover, it does
not qualify as one of the limited exceptions made for youthful or first
offender statutes since it was meant to benefit the convicted population
at large. See Matter of Kaneda, supra; Matter of Moeller, supra. We
therefore conclude that the court's order of dismissal does not eliminate
the respondent's conviction for purposes of deportation, and we find
that the respondent's deportability has been clearly established.
As an alternate argument, the respondent has contended that the
immigration judge erred in declining to accept his application for relief
under section 212(c) of the Act. In rejecting the application the immigration judge relied on decisions of the Ninth Circuit and the Board holding
that such relief was unavailable to persons convicted of narcotics violations in the Ninth Circuit. See Bowe v. INS, 597 F.2d 1158 (9 Cir. 1979);
Nicholas v. INS, 590. F.2d 802 (9 Cir. 1979); Matter of Bowe,
17 I&N
Dec. 488 (BIA 1980). Since that time, the Court has reversed its position in Tapia-Acuna v. INS,
640 F.2d 223 (9 Uir. 1981), and the Board
accordingly reconsidered its decision in Matter of
Bowe, supra, on April
23, 1981. We, therefore, believe that the record should be remanded to
the immigration judge to give the respondent an opportunity to submit
an application for section 212(c) relief. On remand, the respondent should
also be permitted to seek any relief available to him and to request a
change of venue.
ORDER: The record is remanded for further proceedings consistent with the foregoing opinion.
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