Interim Decision #2965
MATTER OF CARRILLO
In Deportation Proceedings
A-17251735
Decided by Board May 3, 1984
Expunction of a marihuana conviction pursuant to Article 42.12,
section 7, of the Texas Code of Criminal Procedure 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(bXl) (1982). Matter of Sirhan,
13 I&N Dec. 592 (BIA
1970); and Matter of O'Sullivan, 10 I&N Dee. 520 (BIA 1963), distinguished.
CHARGE:
Order: Act of 1552— Sec. 241(:1H11) p U.S. C. 61251(a)(11)1--Convieted of marthuana violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Douglas R Eikermann, Esquire Ira L. Frank
Wiley, Hale & Fleuriet General Attorney
Post Office Drawer 2764
Harlingen, Texas 78550
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The Immigration and Naturalization Service has appealed from
a decision of the immigration judge dated February 27, 1980, terminating deportation proceedings against the respondent The appeal
will be sustained and the record will be remanded to the immigration judge for further proceedings.
The respondent is a 31-year-old native and citizen of Mexico who
was admitted to the United States as a lawful permanent resident
on January 15, 1967. The record reflects that he is married to a
native and citizen of Mexico and that he has two United States citizen children.
The record further reflects that the respondent was convicted on
October 26, 1978, in the 138th District Court of Willacy County,
Texas, upon a plea of guilty to possession of marihuana, for which
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Interim Decision #2965
he received a suspended sentence of 2 years' confinement and a 3-
year period of probation with a $250 fine. On February 22, 1980,
upon a motion by the respondent, the court ordered withdrawal of
the respondent's guilty plea, vacation of his conviction, dismissal of
the charges against him, and termination of his probation.
The Service issued an Order to Show Cause, Notice of Hearing,
and Warrant for Arrest of Alien (Form I-2215) on January 9, 1980,
charging the respondent with deportability under section 241(a)(11)
of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11)
(1982), as an alien convicted of a violation of a law relating to the
illicit possession of marihuana. At the hearing, counsel for the respondent submitted a copy of the order setting the respondent's
conviction aside and dismissing the charges against him. The immigration judge determined that the court's order was a judicial act
which he believed would eliminate a conviction for immigration
purposes under our decisions in Matter of Sirhan,
13 I&N Dec. 592
(l3lA 1970), and Matter of O'Sullivan,
10 I&N Dec. 320 (BIA 1963).
He further noted that the Texas statute under which the respondent's conviction was vacated is comparable to the federal first offender statute.' He therefore concluded that the respondent no
longer had a conviction which would support a finding of deportability_ He -terminated the deportation proceedings and consequently made no ruling on the respondent's application for a waiver of
inadmissibility under section 212(c) of the Act,
8 U.S.C. § 1182(c)
(1982).
On appeal, the Service argues that the immigration judge erred
in terminating the proceedings on the ground that the respondent's
conviction was eliminated for deportation purposes by the order of
the court. We agree.
The respondent's conviction was set aside pursuant to Article 42.12, section '7, of
the Texas Code of Criminal Procedure which provides as follows: At any time, after
the defendant has satisfactorily completed one-third of the original probationary
period or two years of probation, whichever is the lesser, the period of probation
may be reduced or terminated by the court. Upon the satisfactory fulfillment of the
conditions of probation, and the expiration of the period of probation, the court, by
order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. In case
the defendant has been convicted or has entered a plea of guilty or a plea of nolo
contendere to an offense ... and the court has discharged the defendant hereunder,
such court may set aside the verdict or permit the defendant to withdraw his plea,
and shall dismiss the accusation, complaint, 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 or to which he has
pleaded guilty, except that proof of his said conviction or plea of guilty shall be
made known to the court should the defendant again be convicted of any criminal
offense.
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Interim Decision #2965
Initially, we find the immigration judge's reliance on our decisions in Matter of Sirhan, supra, and Matter of O'Sullivan, supra,
to be inappropriate. In O'Sullivan, we specifically distinguished the
judicial action taken by the court in that case frond an expunction
granted by a judge pursuant to the statutory procedures in California which the Attorney General found ineffective to eliminate a
conviction for deportation purposes in Matter of A-F-, 8 I&N Dec.
429 (BIA, A.G. 1959). We noted that the California statute restricted the court's authority to set a conviction aside by requiring the
fulfillment of specific probationary conditions and by providing
that the conviction continues to evict for certain purposes. Similarly, in Sirhan, eve determined that the court's authority to vacate
the conviction was through its judicial power to grant a writ of
coram nobis rather than by statute. In the instant case, the immigration judge and the parties have acknowledged that the court's
jurisdiction to set aside the respondent's conviction was based on
the statutory provisions of Article 42.12, section 7, of the Texas
Code of Criminal Procedure.
An examination of the Texas statute under which the respondent's conviction was set aside reveals that it is not a counterpart to
the federal first offender statute. See
21 U.S.C. § 844(bX1) (1982). In
Matter of Seda,
17 I&N Dec. 550 (BIA 1980), we noted that the federal first offender statute and its state equivalents provide for
withholding of adjudication of guilt by the court and discharge
without a conviction upon successful completion of probation. See
also Matter of Kaneda,
16 I&N Dec. 677 (BIA 1979); Matter of
Haddad,
16 I&N Dec. 253 (BIA 1977); Matter of Werk,
16 I&N Dec.
234 (13IA. 1977). In this respect, they are distinguishable from expunction statutes which merely remove the stigma of a conviction
after fulfillment of the penalties imposed and which are not effective to eliminate the conviction for immigration purposes. See
Matter of Forstner,
18 I&N Dec. 374 (BIA. 1983); Matter of Golshan,
18 I&N Dec. 92 (BIA 1981); Matter of Moellez;
16 I&N Dec. 65 031A
1976); Matter of Varagianis,
16 I&N Dec. 48 (BIA 1976); Matter of
Tucker,
15 I&N Dec. 337 (BIA 1975), aff'd Tucker v. INS,
551 F.2d
313 (9th Cir. 1977); Matter of Espinoza,
15 I&N Dec. 328 (BIA 1975);
Matter of Lindner,
15 I&N Dec. 170 (BIA 1975); Matter of Wong,
12
I&N Dec. 721 (BIA 1968); Matter of Kelly,
10 I&N Dec. 526 (BIA
1964), aff'd Kelly v. INS,
349 F.2d 473 (9th Cir.), cert. denied,
382
U.S. 932 (1965); Matter of A-F-, supra. Since the Texas statute
allows the court to set aside a verdict or permit the defendant to
withdraw his plea of guilty or nolo contendere, it clearly provides
only a post-conviction remedy. Consequently, it is not comparable
to the first offender statutes where no conviction exists. Further-
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Interim Decision #2965
more, its provisions are not applicable to only a limited class of
first offenders but are available to the convicted population at
large. We therefore conclude that the immigration judge erred in
finding the Texas statute to be the equivalent of a first offender
statute and in terminating the proceedings on that basis.
Having carefully reviewed Article 42.12, section 7, of the Texas
Code of Criminal Procedure, we find it to be an expunction statute,
i.e., one which sets forth a rehabilitative procedure for dismissal of
criminal charges against a convicted person following a successful
period of probation. As such, it 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 expunction procedure. See Matter of Golshan, supra. Furthermore, the United States
Court of Appeals for the Fifth Circuit, in which this case arises,
has specifically held that an alien whose narcotics conviction was
expunged pursuant to the Texas statute at issue here remains subject to deportation on the basis of the conviction. Gonzalez de Lara
v. United States, 439 F.2d 1316 (5th Cir. 1971). The First Circuit
reached the same conclusion. regarding this statute in Kolios v.
INg
522 F.2d 786 (1st Cir.), etrrt_ denied,
429 U.S. 884 (1976), noting
that Congress has taken a narrow approach toward narcotics offenders and would not likely "contemplate that state expungment
statutes of general applicability could insulate any narcotics offend.
er from the sanction of deportation." Id. at 790. Consequently, we
conclude that the expunction of the respondent's conviction by the
court pursuant to Article 42.12, section 7, of the Texas Code of
Criminal Procedure did not eliminate the conviction so as to prevent a finding of deportability under section 241(a)(11) of the Act.
Accordingly, the appeal of the Immigration and Naturalization
Service will be sustained and the immigration judge's order terminating the proceedings will be vacated. Inasmuch as the immigration judge has not adjudicated the respondent's application for a
section 212(c) waiver, we shall remand the record for that purpose.
On remand, the respondent should be permitted to submit any additional evidence available to him in support of his waiver request.
ORDER: The appeal is sustained and the decision of the immigration judge is vacated.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing
opinion.
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Interim Decision *2966
MATTER OF CHU
In Visa Petition Proceedings
A-2430322'T
Decided by Board May 3, 1.984
(1) Certificates issued by notarial offices in the People's Republic of China ("PRC")
which are offered as proof of post.1950 adoptions in mainland China shall be accepted as evidence both that the adoptive relationship was created and that the
adoption is regarded as valid by the PRC Government. Matter of May, 18 I&N
Dec RRI (BIA 1983). distinguished. Matter of Ho, 18 I&N Dec. 152 (BIA 1981), auperseded.
(2) A certificate issued by one of the PRC's notarial offices is an essential element of
proof in establishing the existence of a valid post-1950 adoption in the PRC in
that if an applicant for such certificsite is unable to persuade notarial officials
that the certificate should be issued, either because of questions relating to the
establishment of the adoption or its conformance to PRC public policy, then he
cannot satisfy his burden of proving that the claimed relationship exists for purposes of our immigration laws.
(3) Certificates issued by notarial offices in the PRC shall not be regarded as conclusive proof of the facts certified because of the potential for fraud or error in their
issuance: fraud or mistake may reasonably be suspected where the facts recited on
the notarial certificate are contradicted by other evidence and the inconsistencies
have not been satisfactorily explained by the petitioner or where there is an absence of sufficient corroborating evidence.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Jim Tom Haynes, Esquire Eloise Roses
1140 Connecticut Avenue, N.W. Appellate Trial Attorney
Washington, D.C. 20036
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
In a decision dated August 26, 1983, the district director denied
the visa petition filed by the lawful permanent resident petitioner
to accord the beneficiary preference status ac an adopted daughter
pursuant to section 203(a)(2) of the Immigration and Nationality
Act,
8 U.S.C. § 1153(a)(2) (1982). The petitioner appealed from that
decision and oral argument in the case was heard by the Board on
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Interim Decision #2966
December 22, 1983. The record will be remanded to the district director.
The beneficiary is a 14-year-old native and citizen of the People's
Republic of China ("PRC"). The petitioner, also a native of the
PRC, claims to have adopted the beneficiary in 1975 when the beneficiary was 6 years of age. In support of her visa petition, the petitioner submitted certificates issued by one of China's notarial offices which state that the beneficiary is the adopted daughter of
the petitioner and her husband, the adoption having taken place in
the PRC on October 2, 1975.
The district director denied the visa petition for failure on the
part of the petitioner to establish the existence of the claimed relationship between herself and the beneficiary. The district director
noted that on documents executed in connection with her own immigration to the United States in 1979, the petitioner had declared
only her natural children and had made no mention of the beneficiary. The district director also relied upon a memorandum from
the American consulate general at Guangzhou, the State Department consular district in which the beneficiary resides, which was
prepared in response to a request the district director had made for
an overseas opinion as to the validity of the adoption. The State
Department memorandum, dated July 28, 1982, expresses the view
that the visa petition should not be approved: the memorandum advises that notarial certificates such as those submitted by the petitioner carry some weight but, standing alone, do not establish that
a legal adoption has taken place, particularly where they are contradicted by other evidence such as the petitioner's past failure to
acknowledge the beneficiary as her daughter. Appended to the
memorandum is an airgram that discusses post-1950 adoptions in
the PRC which the consulate at Guangzhou had previously, on
August 19, 1981, directed to various State Department and Immigration and Naturalization Service offices.
At issue in this case is the evidence required to substantiate a
claimed adoption created after the Civil Code of China was suspended in 1950 by the Communist Chinese Government which had
seized control of the mainland of China. An adoption that is valid
under the law of the place where it occurred will be recognized as
valid for purposes of our immigration laws. Matter of Kwok, 14
I&N Dec. 127 (BIA 1972); Matter of R-,
6 I&N Dec. 760 (BIA 1955).
It is settled that adoptive relationships created after the Communist Chinese Government came to power are recognized in the
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