Interim Decision #2875 

MATTER OF GOLSHAN 

In Deportation Proceedings 

A-17850804 

Decided by Board July 28, 1981 

(1) Since section 9.95.240 of the Revised Code of Washington Annotated is a general 

expungemerst statute, a state court's order pursuant to that statute dismissing criminal 

charges after successful completion of probation does not eliminate a narcotics conviction 

for purposes of deportation. 

(2) Although the respondent's narcotics conviction renders him deportable notwithstanding 

its expungersent, the respondent is eligible for relief under section 212(c) of the Act, 

8 U.S.C. 1162(c), and, therefore, the record is remanded to give him an opportunity 

to apply for discretionary relief. 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(1I) (8 U.S.C. 1251(1)(11)1—Convicted for possession 

ot a narcotic drug 

ON BEHALF OF RESPONDENT: 

Ira Fiekisteel, Esquire 

Allen E. Kaye, P.C. 

233 Broadway, Suite 3702 

New York, New York 10007 

ON BEHALF OF SERVICE: 

Gerald S. Hurwitz 

Appellate Trial Attorney 

By: Milhollan, Chairman; Maniatis. Maguire, Morris, and Vacca, Board Members 

In a decision dated June 9, 1980, the immigration judge found the 

respondent deportable under section 241(a)(11) of the Immigration and 

Nationality Act, 8 U.S.C. 1251(a)(11), and ordered him deported from 

the United States. The respondent has appealed from that decision. The 

record will be remanded. 

The respondent is a native and citizen of Iran who last entered the 

United States as a returning permanent resident on June 10, 1978. The 

record reflects that he has been a lawful permanent resident since 

November 19, 1970, and that he has a United States citizen wife and 

child. 

The respondent was arrested at the time of his entry and was charged 

with possession of controlled substances. On December 11, 1978, the 

respondent vvas convicted for possession of opium on his plea of guilty in 

the Superior Court of the State of Washington for King County. The 

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court deferred imposition of sentence for 2 years on the conditions that 

the respondent be subject to probation during that period, that he pay 

court costs, and that he donate 50 hours of service in a drug treatment 

facility. 

On July 25, 1979, the respondent submitted a motion to the Superior 

Court requesting that he be permitted to withdraw his plea of guilty and 

enter a plea of not guilty and that the case then be dismissed. In an 

order dated that same day the court granted the requested relief, dismissing the charges against the respondent. 

The immigration judge determined that the charges against the respondent were dismissed pursuant to a Washington statute which, in his 

opinion, is a rehabilitative provision based on compliance with probation 

requirements and is not limited to youthful or first offenders. He concluded that the respondent was not relieved from deportation by virtue 

of dismissal of the charges because, for purpoies of deportation, narcotics convictions may only be eliminated pursUant to the federal first 

offender statute, 21 U.S.C. 844(b)(1), .or the Federal Youth Corrections 

Aet, 18 U. S.C. 5010, et seq., or the state counterparts thereof. Thus, he 

found the respondent deportable on the basis of his conviction. He further stated that he refused to accept the respondent's application for 

relief from deportation pursuant to section 212(c) of the Act, 8 U.S.C. 

1182(e), on the basis of decisions holding that such relief was unavailable 

to narcotics offenders in the Ninth Circuit. 

On appeal, the respondent contends that proceedings should be terminated because his conviWon was set aside and charges were dismissed 

pursuant to section 9.9g.240. of the Revised Code of Washington 

Annotated.' The respondent concedes that this statute is not a first 

offender statute. However, he argues that since he was a first offender 

and the State of Washington has no first offender statute, he should not 

be penalized because he was tried in a state court rather than a federal 

court. He further asserts that since the court employed the only available means to alleviate the stigma of the conviction and preclude 

deportation, we should not frustrate its efforts to rehabilitate the 

respondent. In the alternative, he argues that he should be permitted to 

apply for section 212(c) relief and for political asylum. 

Section 9.95.240 of the Revised Code of Washington Annotated provides as follows: 

Dismissal of information or indictment after probation completed. 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, 

may at any time prior to the expiration of the maximum period of punishment for the 

offense for which he has been convicted be permitted in the discretion of the court to 

I The court's order of dismissal does not state the statutory authority for ifs action. 

However, as the respondent notes, the language of the order parallels that of the statute. 

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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 may in its discretion set aside the verdict of guilty: 

and in either case, the court nay thereupon dismiss the information or indictment 

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 in his probation papers: Provided, That in any subsequent prosecution, 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 

information or indictment dismissed. 

As the respondent concedes, this statute clearly is not a state counterpart to the federal first offender statute. Cf . Matter of Seda, 17 I&N 

Dec. 550 (BIA 1980); Matter of Kaneda, 16 I&N Dec. 677 (BJA 1979); 

Matter of Haddad, 16 I&N Dec. 253 (BIA 1977); Matter of Werk, 16 

I&N Dec. 234 (BIA 1977). Nor is it directed toward rehabilitation of 

youthful offenders. CJI Matter of Beaker, 15 I&N Dec. 725 (BIA 1976); 

Matter of Lima, 15 I&N Dec. 661 (BIA 1976); Matter of Andrade, 14 

I&N Dec. 651 (BIA 1974); Matter of Zingis, 14 I&N Dee. 621 (BIA 

1974). We have held that only those narcotise violators who have been 

sentenced under the Federal Youth Corrections Actor the federal first 

offender statute or their state equivalents will be exempt from deportation under section 241(a)(11) of the Act. See Matter of Kaneda, supra; 

Matter of Mueller, 16 I&N Dec. 65 (BIA 1976); Matter of Varagianis, 

16 I&N Dec. 48 (BIA 1976). It has long been held that the elimination of 

a narcotics conviction by a general expungement statute, unconditional 

pardon, or destruction or annulment of the record will not prevent 

deportation. See Matter of Moeller, supra; Matter of Varagianis, supra; 

Matter of Tucker, 15 I&N Dec. 337 (BIA 1975), aft d Tucker v. INS, 551 

F.2d 313 (9 Cir. 1977); Matter of Espinoza, 15 I&N Dec. 328 (BIA 1975); 

Matter of Lindner, 15 UN Dec. 170 (BIA 1975); Matter of Wong, 12 

I&N Dec. 721 (BIA 1968); Matter of Kelly, 10 I&N Dec. 526 (BIA 

1964), affd Kelly v. INS, 349 F.2d 473 (9 Cir.), cert. denied, 382 U.S. 

932 (1965); Matter of A-F-, 8 I&N Dec. 429 (A.G. 1959). 

In Matter of A-F-, supra, the Attorney General examined the effect 

of expungement of a narcotics conviction pursuant to section 1203.4 of 

the California Penal Code on the deportability of the convicted alien 

under section 241(a)(11) of the Act_ He concluded that Congress did not 

intend to permit such aliens to escape deportation on the basis of a state 

procedure authorizing a technical erasure of the conviction. The courts 

have shown accord with that policy determination. See Kotios v. INS, 

532 F.2d 786 (1 Cir.) cert. denied, 429 U.S. 884 (1976); Gonzales de Lara 

v. United States, 439 F.2d 1316 (5 Cir. 1971); Cruz-Martinez v. INS, 

404 F.2d 1198 (9 Cir. 1968), cert. denied, 394 U.S. 955 (1969); but see, 

Raman v. INS, 544 F.2d 71 (2 Cir. 1976). 

Section 9.95.240 of the Revised Code of Washington Annotated is 

very similar to section 1203.4 of the California Penal Code in that it 

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provides a rehabilitative procedure for dismissal of criminal charges 

after the convicted person has successfully completed probation. The 

language of these statutes is almost identical. We believe therefore that 

the Washington statute clearly falls within the policy determination set 

forth by the Attorney General in Matter of A-F-, supra, which precludes avoidance of deportation by one whose narcotics conviction has 

been eliminated by a state expungement procedure. Moreover, it does 

not qualify as one of the limited exceptions made for youthful or first 

offender statutes since it was meant to benefit the convicted population 

at large. See Matter of Kaneda, supra; Matter of Moeller, supra. We 

therefore conclude that the court's order of dismissal does not eliminate 

the respondent's conviction for purposes of deportation, and we find 

that the respondent's deportability has been clearly established. 

As an alternate argument, the respondent has contended that the 

immigration judge erred in declining to accept his application for relief 

under section 212(c) of the Act. In rejecting the application the immigration judge relied on decisions of the Ninth Circuit and the Board holding 

that such relief was unavailable to persons convicted of narcotics violations in the Ninth Circuit. See Bowe v. INS, 597 F.2d 1158 (9 Cir. 1979); 

Nicholas v. INS, 590. F.2d 802 (9 Cir. 1979); Matter of Bowe, 17 I&N 

Dec. 488 (BIA 1980). Since that time, the Court has reversed its position in Tapia-Acuna v. INS, 640 F.2d 223 (9 Uir. 1981), and the Board 

accordingly reconsidered its decision in Matter of Bowe, supra, on April 

23, 1981. We, therefore, believe that the record should be remanded to 

the immigration judge to give the respondent an opportunity to submit 

an application for section 212(c) relief. On remand, the respondent should 

also be permitted to seek any relief available to him and to request a 

change of venue. 

ORDER: The record is remanded for further proceedings consistent with the foregoing opinion. 

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