Interim Decision #2252 

MATTER OF CRUZADO 

In Deportation Proceedings 

A-13339859 

Decided by Board December 18, 1973 

(1) Respondent's conviction of attempt to possess drugs in violation of section 14-

27 of the Louisiana Statutes constitutes a basis for deportation under section 

241(aX11) of the Immigration and Nationality Act, as amended, notwithstanding the conviction was set aside pursuant to Article 893 of the Louisiana Code 

of Criminal Procedure, as amended. Matter of O'Sullivan, 10 I. & N. Dec. 320, is 

distinguished, in that the setting aside of the conviction in the instant case 

was pursuant to a statute providing an automatic award for good behavior, 

and the conviction may be used as the basis for prosecution in the event of a 

subsequent offense. 

(2) While the admission into the record of statements by an individual judge and 

a law professor as to the construction of the Louisiana Statutes in question 

was improper, such statements were not prejudicial to the respondent since no 

consideration was given to the statements by either the immigration judge or 

the Board of Immigration Appeals in reaching their respective decisions. 

CHARGE: 

Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of 

violation of any law relating to illicit possession of 

marijuana. 

ON BEHALF OF RESPONDENT: David A. Kattan, Esquire 

419 Gravier Street 

New Orleans, Louisiana 70130 

This is an appeal from an order of deportation entered by the 

immigration judge on March 14, 1972. The appeal will be dismissed. 

The record relates to a 35-year-old married male alien, a native 

and citizen of Colombia, who entered the United States for 

permanent residence on August 5, 1964. He was convicted of 

attempt to possess drugs in violation of section 14-27 of the 

Louisiana Statutes on September 9, 1968. On October 20, 1971, 

pursuant to the provisions of Article 893 of the Code of Criminal 

Procedure, as amended, of Louisiana, the court ordered that the 

respondent's conviction be set aside, that the prosecution be 

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dismissed and that the dismissal have the same effect as an 

acquittal. Article 893 provides that: 

When the imposition of sentence has been suspended by the court, as 

authorized by this Article, and the court finds at the conclusion of the 

probationary period that the probation of the defendant has been satisfactory, 

the court may set the conviction aside and dismiss the prosecution and the 

dismissal of the prosecution shall have the same effect as an acquittal, except 

that said conviction may be considered as a first offense and provides the 

basis for subsequent prosecution of the party as a multiple offender. 

The respondent contends that the setting aside of his conviction 

pursuant to Article 893 wipes out the basis for his deportability, 

citing as precedent Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA 

1963) in which we held that the setting aside of a narcotics 

conviction removed the basis for deportability. The procedure 

employed in Matter of O'Sullivan, supra, however, was not pursuant to a directive of state statute for all like cases. The trial 

court granted a motion for a new trial after conviction and 

sentence, then dismissed the charges upon the motion of the 

assistant prosecuting attorney. The reasons for this action were 

not shown in the record. In the case before us, the action by the 

court setting aside the conviction was pursuant to a statute which 

provided an automatic award for good behavior. The fact that the 

conviction may be used to subject the party to subsequent prosecution as a multiple offender indicates that it does not in fart have 

the same effect as an acquittal. It is analogous rather to the Texas 

statute described in Gonzalez de Lara v. United States, 439 F.2d 

1316 (C.A. 5, 1971). 

The Texas statute provides for the setting aside of a verdict of 

conviction after discharge from probation, except that the conviction shall be recorded if the person is convicted again of an offense. 

The Court of Appeals for the Fifth Circuit held that while the 

Texas statute rewarded the convicted party for good behavior 

during probation, it did not completely erase the conviction. The 

court reasoned that the manner in which a state chooses to 

promote rehabilitation of convicted persons is not of controlling 

importance in a deportation proceeding, which is a function of 

federal law. This reasoning was consistent with the Attorney 

General's, in Matter of 8 I. & N. Dec. 429 (A.G. 1969), 

wherein he held that deportability of aliens should not depend on 

the vagaries of state law. 

It is hardly to be supposed that Congress intended, in providing for the 

deportation of aliens convicted of narcotic violations, to extend preferential 

treatment to those convicted in the few jurisdictions, which, like California, 

provide for the expungement of a record of conviction upon the termination of 

probation. 

The Attorney General's view has been sustained in numerous 

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decisions, Garcia-Gonzales v. INS, 344 F.2d 804 (CA. 9, 1965); Kelly 

v. INS, 349 F2d 473 (C.A. 9, 1965), cert. denied 382 U.S. 932 (1965); 

Brownrigg v. INS, 356 F.2d 877 (C.A. 9, 1966); Gonzalez de Lara v. 

United States, supra. 

The respondent also objects to the admission into the record of 

statements regarding construction of the Louisiana statute, which 

were attributed to a judge of the Criminal District Court, Orleans 

Parish, and to a professor of criminal law at a Louisiana law 

school. At the time of the original decision of the immigration 

judge, the order setting aside the respondent's conviction had not 

yet been issued; the order was issued while the case was pending 

on appeal before us. We remanded to give the immigration judge 

an opportunity to consider the case in view of the new development, inasmuch as the issues presented to us were not present 

below, primarily the respondent's contention that Matter of 

O'Sullivan, supra, was applicable to him. During the course of the 

reopened hearing, the trial attorney introduced into evidence an 

investigative report (Ex. R-2), wherein the investigator reported 

the results of his questioning of the judge and professor, mentioned above, as to their opinions of the proper construction of the 

Louisiana statute in question. In our view, it was inappropriate to 

admit these comments into evidence. Where construction of a state 

statute is in issue, the views of individual judges, attorneys, or law 

professors do not constitute the best evidence. See Huff v. United 

States, 273 F2d 56 (C.A. 5, 1959) and 7 Wigmore on Evidence, § 1952 

(3rd Ed. 1940). If there are no state court decisions construing the 

statute, the legislative history of the enactment may be consulted. 

See Sutherland Statutory Construction, § 45.05 (4th Ed. 1973). 

The presence of the comments in the record, however, was not 

prejudicial to the respondent. The immigration judge made no 

reference to them in his decision, which is based entirely on the 

federal authorities above cited. We have given the comments no 

consideration in reaching our decision. 

Accordingly, we hold that the respondent's Louisiana conviction 

of a narcotics offense forms a basis for deportation, despite the fact 

that the conviction has been set aside pursuant to the provisions 

of Article 893 of the Louisiana Code of Criminal Procedure. 

ORDER: The appeal is dismissed. 

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