Interim Decision #2594 

MATTER OF HADDAD 

In Exclusion Proceedings 

A-30956128 

Decided by Board June 28, 1.977 

(1) Applicant was admitted to the United States for permanent residence in 1971. On May 

13, 1975, he was paroled into the United States to await exclusion proceedings following 

his return from a visit to Jordan to visit his ailing mother. The exclusion proceedings 

were brought under section 212(a)(23) of the Immigration and Nationality Act based 

on his conviction in 1974 of possession of marihuana in violation of Section 

18.1070(41)(4)(d), Michigan Statutes Annotated. However, prior to the exclusion hearing, he moved in the Michigan Court for dismissal of the proceedings and discharge 

under Section 18.1070(47), Michigan Statutes Annotated, which was granted November 

25, 1975. 

(2) Section 18.1070(47), Michigan Statutes Annotated, is a first offender statute. It is a 

state counterpart to 21 U.S.C. 844(b)(1), the Federal first offender statute. A conviction 

expunged under a state counterpart of the Federal first offender statute cannot be used 

as a ground of exclusion under section 212(a)(23) of the Immigration and Nationality 

Act. Compare Matter of Werk, Interim Decision 2589 (Bit& 1977). 

EXCLUDABLE: 

Act of 1952—Section 212(a)(23) [8 U.S.C. 1182(2)(23)1—Convicted prior to entry of a 

crime related to the possession of marihuana 

ON BEHALF OF APPLICANT: Janet Calvo, Esquire 

Legal Aid Society 

11 Park Place 

New York, New York 10007 

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members 

In a decision dated August 25, 1976, an immigration judge found the 

applicant inadmissible under section 212(a)(23) of the Immigration and 

Nationality Act. The applicant has appealed. The appeal will be sustained. 

The applicant, a native and citizen of Jordan, was admitted to the 

United States for permanent residence in 1971. Con November 18, 1974, 

he was found guilty of possession of marihuana, a violation of Section 

18.11070(41(4)(d)), Michigan Statutes Annotated, in the District Court or 

the 87th Judicial District of the State of Michigan. He was sentenced to 

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pay $300 court costs, a *50.00 fine, a $4.00 statutory fee, and to serve 

one years probation. 

In January of 1975, the applicant returned to Jordan to visit his ailing 

mother. Upon his return to this country on May 13, 1975, he was paroled 

into the United States to await exclusion proceedings. Before a hearing 

was held on his admissibility, the applicant moved the District Court 

judge in Michigan who had sentenced him on the marihuana charge to 

dismiss the proceedings and to discharge him pursuant to Michigan 

Statutes Annotated Section 18.1070(47). (See Appendix A.) An order 

granting the motion was issued on November 25, 1975. 

The issue argued below and raised again on appeal is whether the 

applicant is excludable tinder section 212(a)(23) of the Immigration and 

Nationality Act in light of the action taken by the Michigan court under 

Michigan Statutes Annotated Section 18.1070(47). 

In a recent interim decision, Matter of Werk, Interim Decision 

2589 (BIA, May 26, 1977), we held that a conviction which has been 

expunged under a state counterpart to 21 U.S.C. 844(b)(1), a Federal 

first offender statute (See Appendix B), will not be considered a conviction for purposes of deportation. We have concluded that the rationale of 

the Werk decision should also apply to eliminate such expunged convictions as grounds for exclusion under section 212 of the Immigration and 

Nationality Act. 

From the text of section 1M.1070(47) of the Michigan Statutes Annotated, we have concluded that the respondent's conviction was expunged under a statute which is a state counterpart to 21 U.S.C. 

844(b)(1). As a consequence, the appeal will be sustained. 

ORDER: The appeal is sustained and the applicant's admission as a 

returning resident is authorized. 

APPENDIX A 

Michigan Statutes Annotated 18.1070(47). 

Probation, no previous related convictions; violation of conditions; discharge and 

dismissal; effect; limitation; nonpublic record, purpose; rehabilitation program; fee 

See 47. (1) When any person who has not previously been convicted of any offense 

under this act or under any statute of the United States or of any state relating to 

narcotic drugs, coca leaves, mariluana, or stimulant, depressant or hallucinogenic 

drugs, pleads guilty to or is found guilty of possession of a controlled substance under 

subsection (4) of section 41 or of use of a controlled substance under subsection (5) of 

section 41, the court, without entering a judgment of guilt and with the consent of the 

accused, may defer further proceedings and place him on probation upon terms and 

conditions. Upon violation of a term or condition, the court may enter an adjudication of 

guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, 

the court shall discharge the person and dismiss the proceedings against him. Discharge 

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Interim Decision #—Appendix 

and dismissal under this section shall be without adjudication of guilt and is not a 

conviction for purposes of this section or for purposes of disqualifications or disabilities 

imposed by law upon conviction of a crime, including the additional penalties imposed 

for second or subsequent convictions under section 48. There may be only one discharge 

and dismissal under this section with respect to any person. The records and identification 

division of the department of state police shall retain a nonpublic record of an arrest and 

discharge or dismissal under this section. This record shall be furnished to any court or 

police agency upon request for the purpose of showing that a defendant in a criminal 

action involving the use of a controlled substance covered in this act has already once 

availed himself of the provisions of this section. 

APPENDIX B 

21 United States Code 844(b)(1). 

If any person who has not previously been convicted of violating subsection (a) of this 

section, any other provision of this subchapter or subchapter II of this chapter, or any 

other law of the United States relating- to narcotic drugs, marihuana, or depressant or 

stimulant substances, is found guilty of violation of subsection (a) of this section after 

trial or upon a plea of guilty, the court may, without entering a judgment of guilty and 

with the consent of sooll person, defer further proceedings and place him on probation 

upon such reasonable conditions as it may require and for such period, not to exceed one 

year, as the court may prescribe. Upon violation of a condition of the probation, the 

court may enter an adjudication of guilt and proceed as otherwise provided. The court 

may, in its diserotinn, dismiss the proceedings against such person and discharge him 

from probation before the expiration of the maximum period prescribed for such 

person's probation. If during the period of his probation such person does not violate 

any of the conditions of the probation, then upon expiration of such period the court 

shall discharge such person and dismiss the proceedings against him. Discharge and 

dismissal under this subsection shall be without court adjudication of guilt, but a 

nonpublic record thereof shall be retained by the Department of Justice solely for the 

purpose of use by the courts in determining whether or not, in subsequent proceedings, 

such person qualifies under this subsection. Such discharge or dismissal shall not be 

deemed a conviction for purposes of disqualifications or disabilities imposed by law upon 

conviction of a crime (including the penalties prescribed under this part for second or 

subsequent convictions) or for any other purpose. Discharge and dismissal under this 

section may occur only once with respect to any person. 

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