Matter of G----
| Citation | 9 I&N Dec. 159 |
| Decision Date | 07 September 1960 |
| Docket Number | A-10028465. |
| Parties | MATTER OF G----. In DEPORTATION Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
DISCUSSION: The special inquiry officer terminated proceedings and certified the case to this Board for final decision. No change will be made in his decision.
Respondent, a single male about 22 years of age, a native and national of Germany, was admitted to the United States for permanent residence in 1955. On June 12, 1959, he committed forgery. He was convicted on July 12, 1959, in a California court. Sentence was to confinement in the county jail for one year, but execution was suspended and respondent was placed on probation. On December 15, 1959, the same court set aside the plea of guilty and dismissed the case pursuant to section 1203.4 of the Penal Code of California. The special inquiry officer, relying upon precedents holding that such an expungement of the record prevents the use of the "conviction" as a basis for deportation, terminated proceedings. The Service representative has filed a brief asking that deportation be ordered because the expungement does not eliminate the "conviction" as a ground of deportation. Counsel for respondent asks that the order of the special inquiry officer be affirmed.
Expungement of the conviction occurred under section 1203.4 of the Penal Code of California which provides:
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, shall at any time thereafter be permitted by the court to 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 shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information 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 and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney, or by the probation officer authorized in writing; Provided, That in any subsequent prosecution of such defendant 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 accusation or information dismissed.
A review of decisions concerning expungement reveals some conflict as to its effect, but the latest cases reaffirm the rule that the expungement wipes out the criminal proceedings and places the defendant in a position which he would have occupied if no accusation or information had been presented against him (People v. Taylor, 3 Cal.Rptr. 186 (1960); Stephen v. Toomey, 338 P.2d 182 (1959); Kelly v. Municipal Court, 324 P.2d 990 (1958)). There are exceptions to the rule. Despite the expungement, the State of California recognizes the existence of a conviction in a subsequent prosecution, in impeachment of the defendant, and in the regulation of privileges concerning drivers of motor vehicles, attorneys-at-law, doctors, and public school teachers (People v. Taylor, supra). An expungement may be obtained only by a person who has been placed on probation, a matter wholly within the discretion of the court (People v. Walker, 5 Cal.Rptr. 283; People v. Judson, 18 P.2d 379). The court may not give probation to a person guilty of the more serious crimes (California Penal Code, section 1203). The expungement must be applied for and the petitioner must establish that he has complied with the conditions of his probation. In some respects the expungement carries with it greater rights than does an executive pardon (People v. Taylor, supra, pp. 190-191).
While the Federal courts considered the issue before the State made exceptions to the rule that an expungement eliminates the existence of a conviction, the Federal cases were decided when the law provided, as it does today, that the expungement does not eliminate the existence of the conviction in a subsequent prosecution. In re Paoli, 49 F.Supp. 128, 130 (N.D.Cal., 1943), reveals that after an expungement there was technically "no formal records remaining of a conviction." Another court stated that the record of arrest, the conviction, and the probation are wiped out leaving no proof of delinquency (In re Ringnalda, 48 F.Supp. 975, 978 (S.D.Cal., 1943). Judge Yankwich, then, as now, United States District Judge, Southern District of California, in an article on the Federal penal system stated that the expungement proceeding enables the convicted person "to claim truthfully that he has never been convicted of a felony" ("The Federal Penal System," 10 F.R.D. 539, 554-555).
Prior to the decision of the Attorney General in Matter of A---- F----, 8-429, the Board consistently held (with the knowledge of the Attorney General, Matter of H----, 6-619, 622 (1955)) that a conviction which had been expunged could not be made the basis for deportation proceedings because there was no longer a record of conviction (Matter of O---- T----, 4-265; Matter of E---- V----, 5-194; Matter of A---- F----, supra). However, in Matter of A---- F----, the Attorney General held that when a narcotic violation is concerned (section 241(a)(11), Immigration and Nationality Act) a conviction which had been expunged would nevertheless support an order of deportation. The decision of the Attorney General was based in part on the actions of Congress showing a policy of severity to alien narcotic offenders. Stress was placed on the effect of an amendment to section 241(b) of the 1952 Act (8 U.S.C. 1251(b)) which originally provided that a judicial recommendation against deportation or an executive pardon would relieve an alien from liability to deportation under either section 241(a)(4) of the Act (8 U.S.C. 1251(a)(4)) because of conviction of crime involving moral turpitude, or section 241(a)(11) of the Act (8 U.S.C. 1251(a)(11)) because of conviction of a narcotic violation. We shall therefore briefly consider section 241(b) of the Act, and its predecessor, section 19 of the Immigration Act of February 5, 1917.
Prior to the Immigration and Nationality Act, a judicial recommendation against deportation or a pardon (whether legislative or executive) barred deportation proceedings based on the conviction of crime (section 19, Act of February 5, 1917). No distinction was made between narcotic and nonnarcotic violations. Section 241(b) of the Immigration and Nationality Act eliminated the legislative pardon as a bar to deportation proceedings (Matter of R----, 5-612). In 1956, an amendment to section 241(b) provided that a judicial recommendation against deportation or an executive pardon should not apply to an alien convicted of a narcotic offense (Act of July 18, 1956).
It was our belief that neither the 1952 change nor the one made in 1956 prevented an expungement from being given effect. The issue in a narcotic case was referred to the Attorney General, who, in Matter of A---- F----, supra, ruled that in a narcotic case a conviction exists for deportation purposes even though the record of conviction has been expunged under the state law. The Attorney General's order pointed out that Congress had shown a policy of progressively greater severity in the treatment of the narcotic violator culminating in the refusal to give the narcotic violator the same freedom from liability to deportation which the nonnarcotic violator obtained through an executive pardon. He held, therefore, that it would be illogical to permit an expungement, which is less than an executive pardon, to defeat deportation proceedings. The holding was expressly confined to a charge under section 241(a)(11) of the Act relating to narcotic violations, and the Attorney General refrained from passing on the effect of an expungement where the conviction formed the basis for a deportation proceeding under section 241(a)(4) of the Act relating to conviction for a crime involving moral turpitude.
Matter of A---- F----, supra, holds that a conviction under section 241(a)(11) of the Act exists although the state has expunged the conviction. Matter of A---- F---- can be interpreted as calling for the same rule where deportation is sought under section 241(a)(4) of the Act for conviction of a crime involving moral turpitude. The argument would run so. Just as Congress in narcotic cases revealed a policy of severity, so with regard to convicted aliens generally Congress revealed a policy of severity — grounds for deportation of criminal aliens were made broader, retroactive, and the requirements that a convicted alien had to serve a prison sentence and that convictions could not be in one trial were eliminated (H.R. No. 1356, Feb. 14, 1952, 82d Cong., 2d Sess., U.S.Code Congressional and Administrative News, 1952, Vol. 2, p. 1679; Commentary, p. 61, 8 U.S.C.A.; Lehmann v. United States ex rel. Carson, 353 U.S. 685). Moreover, just as in narcotic cases a judicial recommendation against deportation or a pardon was made ineffective in preventing deportation, so in all criminal cases a legislative pardon was...
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