Interim Decision #3102
MATTER OF DERIS
In Deportation Proceedings
A-19575373
Decided by Board April 19, 1989
For immigration purposes, the Maryland first offender statute, Article 27, section 292
of the Annotated Code of Maryland, which offers favorable treatment to anyone
committing his first drug violation regardless of the nature and severity of the offense, is
not a counterpart to the federal first offender statute, which is limited in its application
to simple possession of a controlled substance; hence, the respondent in deportation
proceedings may properly be found deportable for having been convicted by a Maryland
state court of a drug violation.
CHARGE:
Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)1—Convicted of narcotics
violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Melvin J. Kodenski, Esquire Craig De Bernardis
Victoria A. Steffen, Esquire General Attorney
209-211 E. Fayette Street
Baltimore, Maryland 21202 David M. Dixon
Appellate Counsel
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated September 13, 1985, the immigration judge
terminated these deportation proceedings against the respondent. On
October 18, 1985, the decision was certified to the Board for our
review. The decision of the immigration judge will be reversed and the
record will be remanded for further proceedings.
The respondent is a 35-year-old native and citizen of Greece who
entered the United States as a nonimmigrant student on December 20,
1974, with authorization to remain until December 19, 1975. His
status was subsequently adjusted to that of a lawful permanent
resident on May 14, 1976. The record reflects that the respondent
pleaded guilty on September 26, 1979, in the Criminal Court of
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Baltimore, Maryland, to possession of cocaine.' On November 13,
1979, the court sentenced the respondent to 2 years of incarceration,
suspending 1 year and ordering supervised probation of 2 years. The
respondent subsequently filed a motion for reduction or modification
of sentence which was granted by the court on January 7, 1982. 2 The
judge ordered that the judgment entered on November 13, 1979, on
the respondent's plea of guilty and the court's verdict of guilty be
stricken from the record. He then entered an order nunc pro tune to
November 13, 1979, staying judgment, deferring the proceedings, and
placing the respondent on probation for 2 years pursuant to the
provisions of Article 27, section 292 of the Annotated Code of
Maryland.3
The record of the respondent's criminal proceedings indicates that he was initially
charged, in the District Court of Maryland for the city of Baltimore, with distribution of
cocaine and conspiracy for the purpose of distributing cocaine. It appears that the
conspiracy charge was subsequently nol-prossed by the Criminal Court of Baltimore,
where the respondent pleaded guilty to a third count, possession of cocaine. It is unclear
from the record how the court disposed of the distribution charge.
2 In his order, the judge specifically stated that the purpose of the respondent's motion
was to "facilitate his defense in deportation proceedings which have been filed against
him." He further noted that a recommendation against deportation had previously been
entered by the court with the understanding that it would be honored by the
Immigration and Naturalization Service. In view of our disposition of this case we need
not address the propriety of the court's action, which appears to have been for the sole
purpose of circumventing the consequences under the immigration laws of a state
narcotics conviction which had stood valid for more than 2 years_
3 The statute in effect at that time provided in pertinent part:
(b) Whenever any person who has not previously been convicted of any offense
under this subheading or under any prior law of this State or the laws of the United
States or of any other state relating to controlled dangerous substances defined in this
subheading, pleads guilty to or is found guilty of any of the offenses specified in this
subheading, the court, if satisfied that the best interests of the person and the welfare
of the people of this State would be served thereby may, with the consent of such
person stay the entering of the judgment of guilt, defer further proceedings, and place
such person on probation subject to such reasonable terms and conditions as may be
appropriate and may in addition require that such person undergo inpatient or
outpatient treatment for drug abuse. By consenting to and receiving a stay of entering
of the judgment of guilt as provided by this subsection, the person waives all rights to
appeal from the judgment of guilt by the court at any time. Prior to the person
consenting to the stay of entering of the judgment of guilt, the court shall notify the
person that by consenting to and receiving the stay of entry of judgment, he waives the
right to appeal from the judgment of guilt by the court at any time. Upon violation of
a term or condition, the court may enter a judgment of conviction and proceed as
otherwise provided. Upon fulfillment of the terms and conditions, the court shall
discharge such person and dismiss the proceedings against him. Discharge and
dismissal under this section shall he without a judgment of conviction and shall not be
deemed a conviction for purposes of disqualifications or disabilities imposed by the
law upon conviction of a crime including the additional penalties imposed for second
or subsequent convictions under § 293 of this subheading. Discharge and dismissal
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On June 11, 1980, the Immigration and Naturalization Service
issued an Order to Show Cause and Notice of Hearing (Form 1-221)
charging the respondent with deportability under section 241(a)(11) of
the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1976). 4
Therspondtamihelgonsaitmbude
deportability, arguing that the Maryland law under which he was
sentenced was the state counterpart to the federal first offender statute.' Thus, according to the respondent's contentions, he should not be
under this section may occur only once with respect to any person and in addition any
public criminal record in any such case shall be expunged upon the satisfactory
completion of any such period of probation. Any expunged arrest and/or conviction
shall not thereafter be regarded as an arrest or conviction for purposes of employment,
civil rights, or any statute or regulation or license or questionnaire or any other public
or private purpose, provided that any such conviction shall continue to constitute an
offense for purposes of this subheading or any other criminal statute under which the
existence of a prior conviction is relevant.
Md. Ann. Code art. 27, § 292(b) (1982).
4 The Order to Show Cause was subsequently cancelled and another was Issued on
August 14, 1984, to reflect the court's nunc pro tunc probation order of January 7, 1982.
5 The federal first offender statute which was in effect at the time of the immigration
judge's decision stated as follows in pertinent part:
(a) It shall be unlawitil for any person knowingly or Intentionally to possess a
controlled substance....
(b)(1) If any person who has not previously been convicted of violating subsection
(a) of this section, any other provision of this subchapter or subchapter II of this
chapter, or any other law of the United States relating to narcotic drugs, marihuana, or
depressant or stimulant substances, is found guilty of a violation of subsection (a) of
this section after trial or upon a plea of guilty, the court may, without entering a
judgment of guilty and with the consent of such person, defer further proceedings and
place him on probation upon such reasonable conditions as it may require and for
such period, not to exceed one year, as the court may prescribe. Upon violation of a
condition of the probation, the court may enter an adjudication of guilt and proceed
as otherwise provided. The court may, in its discretion, dismiss the proceedings
against such person and discharge him from probation before the expiration of the
maximum period prescribed for such person's probation. If during the period of his
probation such person does not violate any of the conditions of the probation, then
upon expiration of such period the court shall discharge such person and dismiss the
proceedings against him. Discharge and dismissal under this subsection shall be
without court adjudication of guilt, but a nonpublic record thereof shall be retained by
the Department of Justice solely for the purpose of use by the courts in determining
whether or not, in subsequent proceedings, such person qualifies under this
subsection. Such discharge or dismissal shall not be deemed a conviction for purposes
of disqualifications or disabilities imposed by law upon conviction of a crime
(including the penalties prescribed under this part for second or subsequent
convictions) or for any other purpose. Discharge and dismissal under this section may
occur only once with respect to any person.
(2) Upon the dismissal of such person and discharge of the proceedings against him
under paragraph (1) of this subsection, such person, if he was not over twenty-one
years of age at the time of the offense, may apply to the court for an order to expunge
Interim Decision #3102
considered to have been convicted for immigration purposes under
this Board's decisions in Matter of Seda, 17 I&N Dec. 550 (BIA 1980);
Matter of Kaneda,
16 I&N Dec. 677 (BIA 1979); Matter of Haddad,
16
I&N Dec. 253 (BIA 1977); and Matter of Werk,
16 I&N Dec. 234 (BIA
1977).
The Service asserted its contrary position that Article 27, section
292 of the Annotated Code of Maryland does not constitute a state
equivalent to the federal first offender statute. This view was based on
the claimed distinction that a discharge without conviction under
Maryland law is not complete inasmuch as that state statute provides
that a conviction "shall continue to constitute an offense for purposes
of this subheading or any other criminal statute under which the
existence of a prior conviction is relevant."
The immigration judge rejected the Service's argument, finding that
the federal statute also provided for retention of an offender's criminal
records "for the purpose of use by the courts in determining whether
or not, in subsequent proceedings, such person qualifies under this
subsection."
21 U.S.C. § 844(b)(1) (1982). He stated that the Service
had cited no circumstances in which a defendant sentenced under the
Maryland statute would have his offense considered as a conviction
while someone sentenced under the federal statute would not. The
immigration judge further examined the Board's decisions regarding
first offender treatment, noting that a state statute is a counterpart to
the federal first offender statute if it is limited to a small class of
offenders and complies with the congressional intent to give qualifying
offenders a second opportunity to lead law abiding lives without the
-
stigma of a conviction. Matter of Kaneda, supra. Concluding that the
Maryland statute met this standard, the immigration judge terminated
these deportation proceedings. We disagree with the immigration
judge's determination that Article 27, section 292 of the Annotated
Code of Maryland is equivalent to the federal first offender statute.
We note at the outset that the federal first offender statute at 21
U.S.C. § 844(b) (1982), which was in effect at the time of the
immigration judge's decision, was repealed by the Comprehensive
Crime Control Act of 1984,
Pub. L. No. 98-473, Title II, §§ 219(a),
235(a)(1),
98 Stat. 1837, 2027, 2031, amended by
Pub. L. No. 99-217,
from all official records (other than the nonpublic records to be retained by the
Department of Justice under paragraph (1)) all recordation relating to his arrest,
indictment or information, trial, finding of guilty, and dismissal and discharge
pursuant to this section....
21 U.S.C. § 844 (1982). Subsections (b)(1) and (2) were subsequently repealed by the
Comprehensive Crime Control Act of 1984, Pub. L. No. 98473, Title II, §§ 219(a),
235(a)(1),
98 Stat. 1837, 2027, 2031, amended by
Pub. L. No. 99-217, § 4,
99 Stat. 1728
(1985) (effective Nov. 1, 1987).
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§ 4, 99 Stat. 1728 (1985) (effective Nov. 1, 1987). However, in the
same act Congress reenacted a revised version of the first offender
statute.
Pub. L. No. 98-473, Title II, § 212(a)(2),
98 Stat. 2003 (1984)
(effective Nov. 1, 1987) (codified at
18 U.S.C. § 3607 (Supp. IV
1986)). The new statute provides as follows:
(a) Pre-judgment probation.--If a person found guilty of an offense described in
section 404 of the Controlled Substances Act (21 U.S.C. 844)-
(1) has not, prior to the commission of such offense, been convicted of
violating a Federal or State law relating to controlled substance and
(2) has not previously been the subject of a disposition under this subsection;
the court may, with the consent of such person, place him on probation for a term of
not more than one year without entering a judgment of conviction. At any time
before the expiration of the term of probation, if the person has not violated a
condition of his probation, the court may, without entering a judgment of conviction,
dismiss the proceedings against the person and discharge him from probation. At the
expiration of the term of probation, if the person has not violated a condition of his
probation, the court shall, without entering a judgment of conviction, dismiss the
proceedings against the person and discharge him from probation. If the person
violates a condition of his probation, the court shall proceed in accordance with the
provisions of section 3565.
(b) Record of disposition.—A nonpublic record of a disposition under subsection
(a), or a conviction that is the subject of an expungement order under subsection (c),
shall be retained by the Department of Justice solely for the purpose of use by the
courts in determining in any subsequent proceeding whether a person qualifies for
the disposition provided in subsection (a) or the expungement provided in subsection
(c). A disposition under subsection (a), or a conviction that is the subject of an
expungement order under subsection (c), shall not be considered a conviction for the
purpose of a disqualification or a disability imposed by law upon conviction of a
crime, or for any other purpose.
(c) Expungement of record of disposition.—If the case against a person found
guilty of an offense under section 404 of the Controlled Substances Act (21 U.S.C.
844) is the subject of a disposition under subsection (a), and the person was less than
twenty-one years old at the time of the offense, the court shall enter an expungement
order upon the application of such person. The expungement order shall direct that
there be expunged from all official records, except the nonpublic records referred to
in subsection (b), all references to his arrest for the offense, the institution of criminal
proceedings against him, and the results thereof. The effect of the order shalt be to
restore such person, in the contemplation of the law, to the status he occupied before
such arrest or institution of criminal proceedings. A person concerning whom such
an order has been entered shall not be held thereafter under any provision of law to
be guilty of perjury, false swearing, or making a false statement by reason of his
failure to recite or acknowledge such arrests or institution of criminal proceedings, or
the results thereof, in response to an inquiry made of him for any purpose.
18 U.S.C. § 3607 (Supp. IV 1986),
As was the case with the prior statute, the ameliorative provisions of
the current first offender statute are available only to persons found
guilty of simple possession of a controlled substance. In passing the
first offender statute, Congress expressed its intent to rehabilitate the
9
Interim Decision #3102
individual user of drugs.6 This policy has been considered to be of
equal importance to the congressional policy to deport narcotics
offenders. See Matter of Werk, supra; cf Matter of Zingis, 14 I&N Dec.
621 (BIA 1974) (relative to the policy of rehabilitating youthful
offenders). However, in restricting first offender treatment to persons
charged only with possessing drugs for their own use, Congress clearly
meant to exclude those guilty of more serious drug offenses from the
favorable disposition afforded by the statute. We therefore conclude
that it would be inappropriate to extend this congressional policy of
rehabilitation beyond its intended scope by expanding the immigration exemption for first offenders to aliens charged with any crime
other than simple possession of a controlled dangerous substance.'
In examining a state statute which grants first offender treatment to
drug violators, we shall include an inquiry as to whether it is available
only to persons charged with simple possession of a controlled
substance. Thus, if a statute applies to offenders of more serious drug
violations, it will not be considered to be the state equivalent to the
federal first offender . statute. Cf. Matter of Berker,
15 I&N Dec. 725
(BIA 1976) (the Board held that it was Inappropriate to limit youth
offender treatment under the provisions of the Federal Youth Corrections Act,
18 U.S.C. §§ 5005-26, repealed by the Comprehensive
Crime Control Act of 1984, Pub. L_ No 9R-471, Title H, §§ 218(a)(8),
235(a)(1)(A),
98 Stat. 1837, 2027, 2031 (effective Oct. 12, 1984), to
6 The legislative history of the Comprehensive Drug Abuse Prevention and Control
Act of 1970,
Pub. L. No. 91-513, 84 Stat. 1236, which enacted the original federal first
offender statute at
21 U.S.C. § 844(b) (1970), states that the philosophy behind the act
included the following goals: to rehabilitate rather than punish the individual user and to
attack illegal traffic in drugs with the full power of the Government. See H. R. Rep. No.
1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.C.C.A.N. 4566, 4575. It further notes
that the offense of possession of drugs, for which first offender treatment is available,
must be for one's own use rather than for the purpose of illicit transactions involving
others, for which much more severe penalties are provided.
Id. at 4577.
'Our holding in this regard applies not only to more serious drug offenses, but also to
any crime not related to possession of drugs. In Matter of Ozkok,
19 I&N Dec. 546 (BIA
1988), we pointed out that there exists in the various states a myriad of provisions for
ameliorating the effects of a conviction. We further noted that, as a result, aliens who
have clearly been guilty of criminal behavior and whom Congress intended to be
considered "convicted" have escaped the immigration consequences normally attendant
upon a conviction. We accordingly revised our standard for determining what
constitutes a final conviction for immigration purposes in order to avoid any continued
dependency on "the vagaries of state law."
Congress restricted first offender treatment to those it believed might be rehabilitated
from drug abuse. This congressional policy of leniency was not extended to persons
guilty of any other crime. We therefore find that Congress intended that aliens who have
been sentenced under state first offender statutes of general applicability for violations
of law unrelated to drug possession should be considered "convicted" and should not be
exempt from the immigration consequences of their crime.
10
Interim Decision #3102
aliens convicted of marihuana possession since the statute drew no
distinction between simple possession of marihuana and offenses
involving more serious drug violations).
Reviewing Article 27, section 292 of the Annotated Code of
Maryland, we note that it relates to persons guilty of "any of the
offenses specified in this subheading." In addition to simple possession, offenses contained in the subheading "Health-Controlled Dangerous Substance?' include the unlawful manufacture, distribution, or
transport into the state of a controlled dangerous substance. See Md.
Code Ann. art. 27, §§ 286, 286A (1982). Since the Maryland statute
offers favorable treatment to anyone committing his first drug
violation regardless of the severity of his offense, it is significantly
more broad in its applicability than the federal statute. We therefore
find that it does not qualify as a state counterpart to the federal first
offender statute. Accordingly, we conclude that aliens sentenced under
Article 27, section 292 of the Annotated Code of Maryland are not
exempt from the immigration consequences of a drug convictions In
view of this conclusion we need not address the Service's argument
that the Maryland law is not a state counterpart to the federal first
offender statute because a conviction exists for some state purpose
following discharge and dismissal.
ORDER: The decision of the immigration judge terminating
these proceedings is reversed. The record is remanded for further
proceedings.
8 We note that the disposition of the criminal court under Article 27, section 292 also
constitutes a final conviction under the standard set forth in Matter of Ozkok, supra.
1l
