Interim Decision #2803 

MATTER OF TINAJERO 

In Deportation Proceedings 

A-34262790 

Decided by Board July 8, 1980 

(1) Under Section 1203.4 of the California Penal Code an individual is eligible for 

expungement of his conviction in those cases where the sentence was suspended, 

probation was granted, and the conditions of probation have been fulfilled. 

(2) In the case of an alien convicted in California of a crime involving moral turpitude, 

who has received a suspended sentence with probation and is'eligible for expungement 

under Section 1203.4 of the California Penal. Code, it is the policy of the Immigration 

and Naturalization Service to defer the institution of deportation proceedings until 

the respondent has had a reasonable opportunity to apply for an expungement. Board 

remanded record to District Director so thatproceedings may be held in abeyance for 

that purpose. 

CHARGE 

Order: Act of 1952—Sec. 241(a)(4), I&N Act [8 U.S.C. 1251(a)(4)j—Convicted and 

sentenced to confinement for a year or more 

ON BEHALF OF RESPONDENT: Jose Angel Rodriguez, Esquire 

304 South Broadway, Suite 532 

Los Angeles, California 90013 

Br. Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

This is an appeal from an immigration judge's decision dated May 4, 

1978, in which the respondent was found deportable under section 

241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(4) 

and was denied voluntary departure. The respondent has appealed. 

The record will be remanded to the Service. 

The respondent is a 25-year-old single male alien, a native and 

citizen of Mexico. On February 15, 1977, he was convicted in the 

Superior Court of California for the offense of burglary in violation of 

Section 259 of the California Penal Code and sentenced on March 10, 

1977, to one year in the county jail. Execution of the sentence was 

suspended and the respondent was granted probation for a period of 

five years. 

Based on the above, the immigration judge found the respondent 

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Interim Decision #2803 

deportable under section 241(a)(4) of the Act. He further found that 

the crime of burglary is a crime involving moral turpitude and therefore the respondent is statutorily ineligible for the privilege of voluntary departure. 

We agree with the finding of the immigration judge that the respondent is deportable under section 241(a)(4) for having pled guilty to 

the crime of burglary. We further agree that the crime of burglary is 

one involving moral turpitude. However, in a memorandum dated 

February 14, 1980, the Deputy General Counsel of the Immigration and 

Naturalization Service advised this Board that the Service "has a 

policy of deferring the institution of deportation proceedings of an 

alien convicted of a crime involving moral turpitude in those cases 

where the sentence was suspended and probation was granted which 

made the alien eligible for expungement under section 1203.4 of the 

California Penal Code."' It is the policy to defer proceedings until the 

individual has had "a reasonable opportunity to obtain an expungement of his conviction." It was noted in the memorandum that the 

Service Operations Instructions were being amended to reflect that 

policy. The Deputy General Counsel asked that the record be remanded 

"to the Service so that it [could] be held in abeyance pending the 

outcome of the respondent's application for an expungement." 

The respondent in this case did have his sentence suspended and 

probation was granted. Therefore, in view of the policy statement by 

the Service which applies to the circumstances of this case we will 

remand the record to the District Director so that the proceedings may 

be held in abeyance until the respondent has had a reasonable opportunity to apply for expungement of his conviction under section 1203.4 of 

the California Penal Code. 

ORDER The record is remanded to the District Director for 

further proceedings consistent with the foregoing order. 

' The Service policy apparently resulted from a January 17, 1961, memorandum from 

the Attorney General to the Commissioner of Immigration and Naturalization. The 

memorandum provided in part that "..., in the cases of alien probationers who may avail 

themselves of the benefits of section 1203.4 after fulfilling the conditions of probation or 

after an earlier discharge from probation, the Service should not institute proceedings 

under section 241(a)(4) during the period that their probation is in effect or during the 

pendency of proceedings under section 1203.4." Cf. Matter of G. —, 9 I&N Dec.159 (BIA 

A.G. 1961). 

AOM