TSIMBIDY-ROCHU

13 I. & N. Dec. 56

• Court: Board of Immigration Appeals
• Decided: July 1, 1968
• Docket: 1918
• Status: Published

Opinion

Interim Decision #1918

MATTER OF TSIMBIDY-ROCHU In Deportation Proceedings A-14824676 Decided by Board November 6, 1968 Where, following respondent's conviction in the State of Nevada of posses- sion of marijuana, her plea of guilty was withdrawn and the information was dismissed by the court pursuant to section 176.225 of the Nevada Re- vised Statutes (which action conforms to an expungement under section 1203.4 of the California Penal Code), the dismissed of the information by the Nevada court is ineffective to remove respondent's narcotic conviction as a basis for deportation under section 241(a) (11) of the Immigration and Nationality Act.* CHARGE: Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11))—Con- victed of possessing marijuana. ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Donald L. Ungar, Esquire Jay Segal 517 Washington Street Trial Attorney San Francisco, Calif, 94111 (Brief submitted)

The instant matter arises on a motion to reconsider our prior decision rendered on July 17, 1868, wherein we dismissed the ap- peal and affirmed the finding of the special inquiry officer order- ing the respondent deported. These proceedings initially arose under section 241 (a) (11) of the Immigration and Nationality Act. The respondent, a native and citizen of France, was convicted on her plea' of guilty in the Second Judicial District Court, State of Nevada, County of Washoe, on April 22, 1968, for the offense of possession of a nar- cotic drug, to wit, marijuana. Following her conviction, the re- spondent was sentenced to the Nevada State Prison for a term of one year. The sentence was suspended and the respondent was placed on probation for a period of three months on condition that she surrender to the Immigration and Naturalization author- * Reaffirmed. See 414 F.2d 797 (C.A. 9, 1969).

56 Interim Decision #1918 ities. Following our adverse decision on the appeal, respondent, through her counsel, filed a petition for review with the United States Court of Appeals for the Ninth Circuit. On July 21, 1968, respondent's plea of guilty was changed to that of not guilty and the information was dismissed pursuant to section 176.225 of the Nevada Revised Statutes. The purpose of the instant motion to reconsider is to raise the issue of whether the court order removes the conviction of re- spondent as the basis of deportation. The Service has filed a reply brief in which it states that the Petition and Order for Honorable Discharge from Probation attached to the motion is evidence of an expungement and does not wipe out respondent's conviction for the possession of marijuana. The Service characterizes the Ne- vada statute cited above as being similar to section '1208.4 of the California.Penal Code providing for expungements.I The sole Question we are called upon to decide is whether or not the action of the Nevada Court dismissing the information against the respondent has the effect of removing the basis of her deportation under section 241 (a) (11) of the Immigration and Nationality Act. A review of the Nevada law and examination of the evidence presented in connection with the motion to recon- sider compels us to conclude that the basis of deportation is not removed. 1 Section 176.225 of the Nevada Revised Statutes, reads as follows: 1. Every defendant who: (a) Has fulfilled the conditions of his probation for the entire period thereof; or (b) Is recommended for earlier discharge by the chief parole and proba- tion officer; or (e) Has domonstrated his fitness for honorable discharge but because of economic hardship, verified by a parole and probation officer, has been un- able to make restitution as ordered by the court, may at any time thereafter be permitted by the court to withdraw his plea of guilty or nolo contenders and enter a plea of not guilty; or, if he has been convicted after a plea of not guilty, the court may set aside the verdict of guilty; and in either case, the court shall thereupon dismiss the indictment or information against such defendant, who shall thereafter be released from all penalties and disabili: ties resulting from the offense or crime of which he has been convicted. 2. The probationer shall be informed of this privilege in his probation papers. 3. The probationer may make such application and change of plea in person or by attorney authorized in writing, or by a parole and probation officer authorized in writing; but in any subsequent prosecution of the de- fendant for acay 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 indictment or information had not been dismissed. (Emphasis sup- plied.)

57 Interim Decision #1918

We have previously held in Matter A—F—, 8 I. & N. Dec. 429 (1959), that expungement under the California Penal Code of a narcotics conviction did eliminate the ground of deportatfon under section 241 (a) (11) of the Immigration and Nationality Act. The Attorney General reversed our conclusion, stating that expungement has no effect on deportability arising under section 241 (a) (11). The Attorney General restated his position again in Matter of G—, 9 I. & N. Dec. 159 (1961) and more recently in Matter of Ibarra-Obando, 12 I. & N. Dec. 576. We have reviewed the Nevada statute cited herein and find that it conforms to the California Penal Statute on expungements. Consequently, our above rulings stating that an expungement of a narcotics convic- tion does not remove the basis for deportation are applicable to the instant matter and we affirm our prior holding that the re- spondent is deportable on the charge contained in the order to show cause. ORDER: It is ordered that the decision finding the respondent deportable to France under section 241 (a) (11) be hereby af- firmed.