Interim Decision #2490

Interim Decision #2490

MATTER OP LIMA

In Deportation Proceedings

rot

A-11408079

Decided by Board April 16, 1976

(1) Respondent was convicted of the unlawful possession of marijuana in violation of

section 11530 of the Health and Safety Code of California. Subsequently, the California

court ordered that respondent's record of arrest and conviction, and other official

records in the case, including all records resulting in the criminal conviction be sealed

pursuant to section 1203.45 of the California Penal Code, and also ordered that the

charges be dismissed pursuant to section 1203.4 of the California Penal Code.

(2) The sealing of respondent's record of arrest and conviction of marijuana posseanion

under section 1203.45 of the California Penal Code eliminated the conviction for possession of marijuana as a basis for deportation under section 241(a)(11) of the Immigration

and Nationality Act.

(3) Matter of Andrade, 14 1. & N. Dec. 651 (DIA 1974) followed.

CHARGE:

Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)3—Violation of a law

relating to illicit possession of marijuana.

ON BEHALF OF RESPONDENT: Marilyn Hall Patel, Esquire

220 Bush Street

San Francisco, California 94104

This case is before us on certification from an order of the immigration

judge terminating deportation proceedings. The decision of the immigration judge will be affirmed.

The respondent is a 25-year-old native of the Azores Islands and

citizen of Portugal who was admitted to the United States for permanent residence on December 19, 1957. On August 30, 1971,. in the

Superior Court of the State of California for the County of San Joaquin,

the respondent was convicted of the unlawful possession of a quantity of

marijuana, a misdemeanor, in violation of Section 11530 of the Health

and Safety Code of California. The California Court ordered that the

imposition of sentence be suspended for a period of three years, and that

the defendant be placed on probation for that period. The respondent

did not appeal the conviction nor did he move for a new trial.

On January 28, 1974, the Service obtained a correct copy of the

661

Interim Decision #2490

original record of respondent's conviction from the County Clerk and

Clerk of the Superior Court of the State of California, County of San

Joaquin. On September 17, 1974, the district director issued an order to

show cause against the respondent on the basis of his criminal conviction

for marijuana possession.

Under section 241(4(11) of the Immigration and Nationality Act, an

alien in the United States is deportable if, at any time after entry, he

has been convicted of a violation of, or a conspiracy to violate, any law or

regulation relating to the illicit possession of or traffic in narcotic drugs

or marijuana.

On September 27, 1974, the respondent petitioned the Superior Court

of California for an order sealing the record of his criminal conviction.

On September 30, 1974, the California court ordered that respondent's

records of arrest and conviction and other official records in the case,

including all records resulting in the criminal conviction be sealed pursuant to Section 1203.45 of the California Penal Code. On September 30,

1974, the - c ourt also issued a separate Order of Dismissal pursuant to

Section 1202.4 of the California Penal Code which substituted a plea of

"not guilty" for the respondent's previous plea of "guilty", and dismissed

the accusation against him.

At the hearing, trial counsel sought to have a copy of respondent's

record of conviction admitted into evidence. Counsel for respondent

objected to the admission of the record on the grounds that it was sealed

by the Superior Court of the State of California, and that therefore, it

could not be used in a deportation proceeding. The copy of the record of

conviction was marked Exhibit 3 for identification and was entered into

the record.

In a decision dated February 7, 1975, the immigration judge found

that the respondent was not deportable as charged. He concluded that

the California Superior Court order which sealed the record of respondent's arrest and conviction of possession of marijuana falls within the

ambit of Matter of Zingis, 14 I. & N. Dec. 621 (BIA. 1974) and Matter of

Andrade, 14 I. & N. Dec. 651 (BIA. 1974). The immigration judge

terminated the proceedings and certified the case to us.

The issue before us is whether the sealing of respondent's record of

conviction under Section 1203.45 of the California Penal Code can oper-

ate to eliminate the conviction as a basis for deportation under section

241(a)(11) of the Act.

On the date that respondent's offense was committed, February '7,

1971, Section 1203.45(a) of the California Penal Code provided as follows:

In any case in which a person was under the age of 21 years at the time of commission of

a misdemeanor and is eligible for, or has previously received, the relief provided by

Section 1203.4 or 1203.4a, such person, in a proceeding under Section 1203.4 or 1203.4a,

662

Interim Decision #2490

or a separated proceeding, may petition the court for an order sealing the record of

conviction and other official records in the case, including records of arrests resulting in

the criminal proceeding and records relating to other offenses charged in the accusatory

pleading, whether defendant was acquitted or charges were dismissed. If the court finds

that such person was under the age of 21 at the time of the commission of the

misdemeanor, and is eligible for relief under Section 1203.4 or 1203.4a or has previously

received such relief, it may issue its order granting the relief prayed for. Thereafter

such conviction, arrest, or other proceeding shall be deemed not to have occurred, and

the petitioner may answer accordingly any question relating to their occurrence.',

Section 1203.45(d) provides as a general rule that the provisions for

sealing a record of arrest and conviction do not apply to a person

convicted of more than one offense.

The record reveals that respondent was 20 years old at the time he

committed the misdemeanor offense, and that he had no prior criminal

convictions. We also note that respondent obtained an expungernent of

the record of his conviction pursuant to Section 1203.4 of the California

Code.

It appears that the California legislature, by enacting Section 1203

.45, intended to provide a means for elimiriating or ameliorating a life

long stigma that may result when a youthful offender is convicted of a

single misdemeanor. Under Section 1203.45, a state agency or subagency may not maintain the record of conviction which has been sealed,

and such a record may not be used in a subsequent administrative or

judicial proceeding within the state of California. The legal effect is

that, upon the sealing of the record by order of the California court, the

arrest, conviction and all other proceedings related to the offense are

forever treated as if they did not occur. Also by the express language of

the statute, the individual whose record has been sealed, may answer

inquiries concerning his arrest and conviction as if they never occurred.

A single statutory exception exists in the instance of a defamation action

or proceeding. 2

In Matter of Zingis, 14 L & N. Dec. 621 (BIA 1974), we held that the

setting aside of a narcotics conviction pursuant to the provisions of the

Federal Youth Corrections Act (18 U.S.C. 5021(b)) operates to elimi8ection 1203.45 of the California Penal Code was amended in 1072, after respondent's

conviction, to change the age for which relief could be sought from 21 to 18. This

amendment does not apply to persons who committed misdemeanor offenses prior to

March 7, 1973, and who were under 21 years of age at the time of the commission of the

offenses.

2 Section 1203.45(f) of the California Penal Code provides that:

In any action or proceeding based upon defamation, a court, upon a showing of good

cause, may order any records sealed under this section to be opened and admitted into

evidence. The records shall be confidential and shall be available for inspection only by

the court, jury, parties, counsel for the parties, and any other person who is authorized

by the court to inspect them. Upon the judgment in the action or proceeding becoming

final, the court shall order the records sealed.

663

Interim Decision #2490

nate the conviction as a basis for deportation under section 241(a)(11) of

the Act. We noted in Matter of Zingis, that in enacting the Federal

Youth Corrections Act, COngress expressed its objectives as the rehabilitation al youthful offenders to enable them to become useful citizens in our society, and that this desire of Congress to give youth a new

chance would be thwarted by deportation. InMatter of Andrade, 14 I. &

N. Dec. 651 (BIA 1974), we granted a Service motion to terminate

deportatithi proceedings and vacated the order directing respondent's

deportation under, section 241(a)(11) of the Act in view of the expungement of the record of a conviction of possession of marijuana in violation

of Section 11530 of the Health and Safety Code of California. The

expungement was executed upon the completion of youthful offender

treatment under Section 1772 of the California Welfare and Institutions

Code. In Matter of Andrade we pointed out that:

... The General Counsel informs us that, on the recommendation of the Solicitor

General, the Ssrvice has now adopted the position that marijuana violators who are

treated as youth offenders under state laws will be dealt with in the same manner as

awl& offenders under federal law. The latter are relieved from deportability on ex-

puntement of fie conviction, Mestre Mor'era v. INS, 462 F.2d 1030 (1 CIr. 1972); Matter

-

of Zingis, Interim Decision 2270 (BIA'Atarch 11, 1974).

We 'find a significant parallel in the facts in Matter of Andrade and the

facts presented in this case. The respondents in both cases were youthful offenders who were convicted of the same misdemeanor offense to

wit: pbssession of marijuana in violation of Section 11530 of the California health and Safety Code. Also, the record of conviction in each case

was expunged under California law. While it is true that the respondent

in this case did not receive youthful offender treatment under Section

1772 of the California Welfare and Institutions Code, it is apparent that

the respondent was, in effect, treated as a youthful offender when he

was granted the benefits of Section 1203.45 of the California Penal

Code. At the time of the commission of his misdemeanor offense, only

persons under the age of 21 were permitted to petition the court for an

order sealing the record of arrest and conviction. Under the current

amendment to Section 1208.45 only persons under the age of 18 are

permitted to petition the court for such relief.

We note that by operation of state law, the Service would have been

advised by California authorities that no record of conviction existed

had the Service attempted to obtain a copy of respondent's record

subsequent to the issuance of the order sealing that record.

Section 1203.45 is obviously aimed at the rehabilitation of youthful

offenders by providing them •with a "clean slate". These objectives are

identical to the Congressional objectives expressed in Matter of Zingis,

supra, and to the recommendation of the Solicitor General which .was

664

Interim Decision #2490

enunciated in Matter of Andrade, supra. 3 Accordingly, we conclude that

the sealing of respondent's record of arrest and conviction of marijuana

possession under Section 1203.45 of the California Penal Code operates

to eliminate the conviction as a bails for deportation under section

241(a)(11) of the Act.

For these reasons, we have concluded that the immigration judge's

decision in terminating deportation proceedings was correct.

ORDER: The decision of the immigration judge is affirmed.

3

In his letter to the General Counsel, Immigration and Naturalization Service dated

March 7, 1974, (Appendix to Matter of Andrade, 14 L & N. Dec. 651 (BIA 1974), the

Solicitor General stated that:

. . . A disparity in treatment' of state and federal youth offenders is particularly

inappropriate in view of the fact that, quite frequently, the underlying facts involve

violation of state and federal law, and may be the basis of either state or federal

prosecution. Indeed, as to persons under 21, federal law encourages the United States

Attorney to forego prosecution and surrender the juvenile to state authorities if "it will

be to the best interest of the United States and of the juvenile offender" to do so. 18

U.S.C. 5001. Where &choice can be made, it is generally the practice that less serious

offenses are handled by state prosecution, and that federal prosecutions are reserved

for the more serious offenses

. . . the Service would be warranted in construing Section 1251(a)(11) as not requiring deportation on the basis of a state marihuana conviction of a ynuth offender which

has been expunged or set aside pursuant to a law comparable to the Federal Youth

Corrections Act, if the youth offender upon conviction could have obtained expungement under the federal law if he had been subjected to federal prosecution.

,

665