Matter of Seda
| Citation | 17 I&N Dec. 550 |
| Decision Date | 10 October 1980 |
| Docket Number | Interim Decision Number 2832,A-20879583 |
| Parties | MATTER OF SEDA In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 15, 1979, the immigration judge found the respondent deportable on his own admission on the lodged charge, under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant who remained longer than authorized. He further denied the respondent's request for voluntary departure. The respondent has appealed from the immigration judge's denial of voluntary departure. The appeal will be dismissed.
The respondent is a 34-year-old native and citizen of Kenya who entered the United States on September 12, 1973, as a nonimmigrant student. His status was subsequently changed to that of an exchange visitor, and his stay was extended to March 22, 1978. At deportation proceedings, he conceded deportability as an overstay, but denied that he had failed to maintain his student status as charged in the Order to Show Cause. The respondent's wife and four children, all natives and citizens of Kenya, reside in the United States with him.
At deportation proceedings, the trial attorney introduced evidence that the respondent had pleaded guilty on January 27, 1978, to the offense of forgery in the first degree in the Superior Court of the State of Georgia for Fulton County. The record indicates that the respondent was placed on probation for 5 years under the provisions of the Georgia Act for Probation of First Offenders and was ordered to make restitution in the amount of $3,585.00. The immigration judge determined on the basis of that court order that the respondent was statutorily ineligible for voluntary departure under section 101(f)(3) of the Act, 8 U.S.C. 1101(f)(3), as a person who had been convicted of a crime involving moral turpitude.
On appeal, the respondent argues that he has not been "convicted" of the forgery offense because under the Georgia statute relating to first offenders under which he was sentenced, proceedings are deferred while the defendant is on probation, and upon fulfillment of probation, the defendant is discharged without court adjudication of guilt. Ga. Code Ann. sections 27-2727 and 27-2728. He further cites as applicable our decisions recognizing that first offender statutes may eliminate the effect of a conviction for immigration purposes. See 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 (BIA 1977).
In order to be eligible for voluntary departure, an alien must establish, inter alia, that he is, and has been, a person of good moral character for at least 5 years immediately preceding his application for such relief. Section 244(e) of the Act, 8 U.S.C. 1254(e). Under section 101(f)(3) of the Act, a person is precluded from establishing good moral character if he has been convicted of or admits the commission of a crime involving moral turpitude during the statutory period.
The record indicates that the respondent pleaded guilty to forgery, which is a crime involving moral turpitude. See Matter of Jimenez, 14 I&N Dec. 442 (BIA 1973); Matter of A----, 5 I & N Dec. 52 (BIA 1953). We, therefore, must determine whether for immigration purposes the respondent can be considered to have been "convicted" of that offense under Georgia law or to have admitted commission of the crime.
This Board has repeatedly held that a conviction exists for immigration purposes when the following elements are present: (1) there has been a judicial finding of guilt, (2) the court takes action which removes the case from the category of those which are (actually or in theory) pending for consideration by the court — the court orders the defendant fined or incarcerated, or the court suspends sentence, (3) the action of the court is considered a conviction by the state for at least some purpose. Matter of Robinson, 16 I&N Dec. 762 (BIA 1979); Matter of Varagianis, 16 I & N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 I&N Dec. 401 (BIA 1963); Matter of L---- R----, 8 I&N Dec. 269 (BIA 1959).
The pertinent sections of the Georgia statute relating to first offenders provide as follows:
Probation for first offenders; when applicable; violation of terms of probation —
Upon a verdict or plea of guilty or a plea of nolo contendere by [sic] before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and place the defendant on probation as provided by the Statewide Probation Act [sections 27-2702 through 27-2726.1]. Upon violation of the terms of probation, or upon a conviction for another crime, the court may enter an adjudication of guilt and proceed as otherwise provided. No person may avail himself of the provisions of this law [sections 27-2727 through 27-2732] on more than one occasion.
Same; discharged probationer not to be considered to have criminal conviction; records of probation —
Upon fulfillment of the terms of probation, or upon release by the court prior to the termination of the period thereof, the defendant shall be discharged without court adjudication of guilt. Such discharge shall completely exonerate the defendant of any criminal purpose, shall not affect any civil right or liberties, and he shall not be considered to have a criminal conviction. Should a person be placed under probation under this law [sections 27-2727 through 27-2732], a record of the same shall be forwarded to the office of the State Probation System and to the Identification Division of the Federal Bureau of Investigation. Ga. Code Ann. sections 27-2727, 27-2728 (emphasis added).
In interpreting these provisions, the Supreme Court of Georgia has stated that during the probationary period imposed, the defendant's trial has, in effect, been suspended, and if he successfully completes the probationary sentence without violations, no formal act of conviction is rendered. See Favors v. State, 214 S.E.2d 645 (Ga. 1975); State v. Wiley, 210 S.E.2d 790 (Ga. 1974). Thus, the clear language of the statute and the judicial interpretation thereof indicate that a defendant sentenced under the Georgia Act for Probation of First Offenders is not convicted unless and until he violates the terms of his probation or is convicted of another crime, at which time an adjudication of guilt may be entered by the court. Therefore, under the standards previously set forth, the probationary sentence imposed on a defendant under that Act should not be considered to be a "conviction" for immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955); cf. Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968); Matter of G----, 9 I & N Dec. 159 (BIA 1960; A.G. 1961).
In previous decisions, this Board has treated other first offender statutes, the language of which is nearly identical to the Georgia Act, as expungement statutes. Se...
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