Interim Decision #3103
MATTER OF GRULLON
In Deportation Proceedings
A-26661082
Decided by Board April 19, 1989
(1) A conviction does not exist for immigration purposes where an alien's criminal
charges were dismissed without prejudice following his successful completion of a
pretrial intervention program prescribed by section 944.025 of the Florida Statutes.
(2) In the absence of a conviction, a respondent in deportation proceedings is not barred
from establishing good moral character under section 101(0(3) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(0(3) (1982), for the purpose of applying for
suspension of deportation under section 244(a) of the Act,
8 U.S.C. § 1254(a) (1982).
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [
8 U.S.C. § 1251(a)(2)1—Nonimmigrant—remained
longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Larry S. Rifkin, Esquire Ronald G. Sonom
200 S.E. First Street, Suite 305 General Attorney
Miami, Florida 33131
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated April 15, 1985, the immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), denied his applications
for suspension of deportation and voluntary departure, and ordered
him deported from the United States. The respondent has appealed
from that decision. The appeal will be sustained and the record will be
remanded to the immigration judge for further proceedings.
The respondent is a 42-year-old native and citizen of the Dominican Republic. The record reflects that he entered the United States on
March 28, 1972, as a nonimmigrant visitor with authorization to
remain for 6 months. The respondent is married to a citizen of El
Salvador and they have a United States citizen daughter who is now 6
years old.
During deportation proceedings the respondent conceded deportability as an overstayed nonimmigrant and applied for suspension of
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Interim Decision #3103
deportation. In his testimony supporting this application he admitted
that he had been arrested for a problem with cocaine. The record
reflects that the respondent was charged in the State of Florida with
possession of a controlled substance on June 12, 1983. The respondent
claimed, however, that the charges should not be considered a
conviction for immigration purposes because he had participated in
the Florida pretrial intervention program, and his criminal record
would be expunged within a few months pursuant to section 943.058
of the Florida Statutes.'
The attorney for the Immigration and Naturalization Service
opposed the respondent's application for suspension of deportation,
arguing that expunction of a drug conviction does not eliminate it for
immigration purposes. The immigration judge concurred with the
Service's position, finding that section 243.058 of the Florida Statutes 2
wasnotecurpthfdealisonrtue.H
therefore concluded that the respondent was unable to establish the
requisite good moral character for suspension of deportation and
voluntary departure.
On appeal the respondent has submitted documents' supporting his
claim that he successfully completed the pretrial intervention program
and that court records now have been sealed and indicate that he has
no felony convictions. Thus he reiterates his assertion that, because the
charges against him have been dropped under the Florida pretrial
intervention program, he has not been convicted for immigration
purposes. We agree.
The State of Florida has a statutory provision for pretrial intervention programs under section 944.025 of the Florida Statutes. That
statute provides in pertinent part:
(I) The department shall supervise pretrial intervention programs for persons
charged with a crime, before or after any information has been filed or an indictment
has been returned in the circuit court. Such programs shall provide appropriate
counseling, education, supervision, and medical and psychological treatment as
available and when appropriate for the persons released to such programs.
(2) Any first offender, or any person previously convicted of no more than one
nonviolent misdemeanor, who is charged with any misdemeanor or felony of the
third degree is eligible for release to the pretrial intervention program on the
approval of the administrator of the program and the consent of the victim, the state
attorney, and the judge who presided at the initial appearance hearing of the
offender. In no case, however, shall any individual be so released unless, after
According to section 943.058, the courts may order the sealing or expunction of
criminal history records of persons who have not been adjudicated guilty of a previous
Criminal offense or of the charges stemming from the arrest or criminal activity sought
to be expunged and who have not secured a prior expunction or sealing of records.
2 We note that the immigration judge erroneously referred to the pertinent section of
the Florida Statutes, section 943.058, as section 243.058.
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Interim Decision #3103
consultation with his attorney or one made available to him if he is indigent, he has
voluntarily agreed to such program and has knowingly and intelligently waived his
right to a speedy trial for the period of his diversion....
(3) The criminal charges against an individual admitted to the program shall be
continued without final disposition for a period of 90 days from the date the
individual was released to the program, if the offender's participation in the program
is satisfactory, and for an additional 90 days upon the request of the program
administrator and consent of the state attorney, if the offender's participation in the
program is satisfactory.
(4) Resumption of pending criminal proceedings shall be undertaken at any time
if the program administrator or state attorney finds such individual is not fulfilling
his obligations under this plan or if the public interest so requires.
(5) At the end of the intervention period, the administrator shall recommend:
(a) That the case revert to normal channels for prosecution in instances in which
the offender's participation in the program has been unsatisfactory;
(b) That the offender is in need of further supervision; or
(c) That dismissal of charges without prejudice shall be entered in instances in
which prosecution is not deemed necessary.
The state attorney shall make the final determination as to whether the prosecution
shall continue.
Fla. Stat. § 944.025 (1980).
In Matter of Ozkok,
19 I&N Dec. 546 (BIA 1988), we set forth a new
standard for determining whether a conviction exists for immigration
purposes. According to Ozkok, if there has been no adjudication of
guilt, a conviction will be found only where the alien has pleaded guilty
or nolo contendere or was found guilty of the charges against him; the
judge ordered some form of punishment, penalty, or restraint of liberty
to be imposed; 3 and a judgment or adjudication of guilt may be
entered without further proceedings regarding guilt or innocence if the
person violated the terms of his probation or failed to comply with the
requirements of the court's order.
The respondent's criminal records reflect that he never entered a
plea to the charges against him. According to section 944.025(1) of the
Florida Statutes, the pretrial intervention program is available to
persons charged with a crime even before an information has been
filed or an indictment returned. Clearly then, entry into the program
precedes a pleading by the accused or a finding of guilt by the court. In
such case the first element of Ozkok is not present.
Furthermore, if a person participating in the program does not
'Such restraint of liberty was found to include incarceration, probation, fine or'
restitution, and community-based sanctions such as rehabilitation programs, workrelease or study-release programs, revocation or suspension of a driver's licence,
deprivation of nonessential activities or privileges, or community services.
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Interim Decision #3103
fulfill his obligations under the plan, his case must revert to normal
channels for prosecution. See Fla. Stat. §§ 944.025(4)-(5)(a) (1980).
Since no plea or finding of guilt has previously been entered, criminal
proceedings are necessary to determine the guilt or innocence of the
accused. Under these circumstances, the third prong of the Ozkok
standard also cannot be met.
In the respondent's case, his criminal records reflect that he
successfully completed the Florida pretrial intervention program. They
further indicate that the charges against him were subsequently
dropped and that the record of his arrest was later expunged. Having
reviewed these events and the provisions of Florida law, we find that
the respondent has not been convicted of a drug offense for immigration purposes. Accordingly, we conclude that the immigration judge
erred in finding that the respondent was convicted of a drug violation
and was barred as a result of his conviction from establishing good
moral character under section 101(0(3) of the Act,
8 U.S.C.
§ 1101(0(3) (1982). 4 We shall therefore sustain the appeal and remand
the record to the immigration judge for further proceedings.
ORDER: The appeal is sustained and the record is remanded
for further proceedings.
4 Section 101(0(3) precludes an alien from establishing good moral character if he falls
within the provisions of section 212(a)(23) of the Act,
8 U.S.C. § 1182(a)(23) (1982).
That section relates not only to aliens convicted of violating any law relating to a
controlled substance, but to those suspected of trafficking in drugs as well.
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