Interim Decision #2511 

MATTER OF BERKER 

In Deportation Proceedings 

A-11780841 

Decided by Board August 2, 1976 

(1) Under the provisions of the Federal 'Youth Corrections Act (18 U.S.C. 5005, et seq.), 

no distinction is drawn between narcotics offenses relating to simple possession of 

marijuana and narcotics offenses involving more serious drug violations. For that 

reason, distinctions as to the relative gravity of narcotics offenses should not be made in 

applying the benefits of the Federal Youth.Corrections Act to immigration cases. 

(2) Expungement of respondent's conviction for conspiracy to possess marijuana with 

intent to distribute in violation of 21 U.S.C. 1346, under the provisions of the Federal 

Youth Corrections Act (18 U.S.C. 5021(b)), opeAted to remove that conviction as a 

basis for deportation under section 241(a)(11) of the Immigration and Nationality Act. 

CHARGE: 

Orden Act of 1952—Seetiou 241(a)(11) [8 U.S.C. 1251(a)(11)J—Convicted of any law 

relating to illicit possession of marijuana 

ON BEHALF OF RESPONDENT: A. Kendall Wood, Esquire 

3232 Fourth Avenue 

San Diego, CA 92103 

In a decision dated October 30, 1975, the immigration judge found the 

respondent deportable as charged and ordered his deportation to Germany. The respondent has appealed from that decision. The appeal will 

be sustained and the proceedings will be terminated. 

The respondent, a native and citizen of Germany, was admitted to the 

United States for permanent residence in 1958. On July 30, 1975 he was 

convicted in the United States District Court for the Southern District 

of California of the offense of conspiracy to possess marijuana with 

intent to distribute in violation of 21 U.S.C. 846 and was sentenced 

pursuant to the Federal Youth Corrections Act, 18 U.S. C. 5005, et seq. 

(Hereinafter referred to as "FYCA".) On.December 19, 1973 the imposition of sentence was suspended and the respondent was placed on 

probation. Prior to the expiration of the period of his probation, on 

August 22, 1975, the court discharged the respondent from probation 

and set aside the respondent's conviction pursuant to the expungement 

provisions of FYCA. 18 U.S.C. section 5021(b). 

.1 

725 
Interim Decision #2511 

The immigration judge found the respondent deportable as an alien 

who has been convicted of a conspiracy to violate a law relating to the 

illicit traffic in marijuana under section 241(a)(11) of the Immigration 

and Nationality Act. Counsel for the respondent, however, contends 

that under our decision in Matter of Zingis, 14 L & N. Dec. 621 (BIA 

1974), the respondent is not deportable. 

In Zingi6 we held that the setting aside of a conviction under FYCA 

eliminates the conviction as a basis for deportation under section 

241(a)(11) of the Act. I See also Mestre Morera v. INS, 462 F.2d 1030 

(1 Cir. 1972). 

However, from dicta in Matter of Espinoza, 15 I. & N. Dec. 328 (BIA 

1975), it is reasonable to infer that our holding inZingis limits recognition 

of expungernents under FYCA to offenses involving simple possession of 

marijuana. Inasmuch as the respondent was convicted of the offense of 

conspiracy to possess marijuana with intent to distribute, the immigration judge held that the expungement does not wipe out the conviction as 

a basis for deportation under section 241(a)(11). 

Notwithstanding dicta to the contrary in Espinoza, our holding in .gintris applies to all convictions which have been set aside 

under the FYCA. In Zingis it is stated that the alien had been convicted 

of a "narcoics violation," to wit, violation of a law relating to illicit 

traffic in marijuana. 

Furthermore, in Zingis we declared that, in enacting FYCA, Congress expressed its objective as the rehabilitation of youthful offenders 

to enable them to become useful citizens in our society. Under FYCA no 

distinctions were drawn between the offense of simple possession of 

marijuana and offenses involving more serious drug violations. In view 

of the Cong:essional policy in this area, distinctions should not be made 

in the applic ation of FYCA benefits in immigration cases. Any language 

in Espinoza-Rodriguez which suggests a contrary interpretation is 

hereby disapproved. 

We note -hat the interpretation of Zingis set out above is in accord 

with the mcst recently stated position of the Service. 

Accordingly, the appeal will be sustained and the proceedings will be 

terminated. 

ORDER: The appeal is sustained; the.proceedings are terminated_ 

1T71 Mottitr of Andrade, 14 I. & N. Dec. 651 (BIA 1974). we accorded like treatment to 

expungements state convictions by youths who were sentenced under a state provision 

similar to FYCA. 

726