Interim Decision #1838 

MATTER OP NAGY 

In Deportation Proceedings 

A-10986083 

Decided by Board January 261 .1988 

Respondent's conviction of transporting a stolen vehicle in foreign commerce 

in violation of 18 II.S.C. 2312, resulting in his commitment as a young adult 

offender under the Federal Youth Corrections Act, which conviction was subsequently set aside pursuant to 18 U.S.C. 5021 and a certificate to that effect 

issued to respondent by the Youth Correction. Division, U.S. Board of Parole, 

is not a conviction of a crime for deportation purposes. 

Cam: 

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)3—After entry 

convicted of two crimes involving moral turpitude not 

arising out of a single scheme of criminal misconduct, 

to wit, intent to commit larceny in bank (18 U.S.C. 

2113(a)), and transportation in foreign commerce of 

stolen motor vehicle (18 U.S.C. 2312). 

The respondent, a native and citizen of Hungary, has been found 

deportable as an alien who after entry has been convicted of two crimes 

involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, intent to commit larceny in a bank and transporting a stolen motor vehicle in foreign commerce in violation of 18 

U.S.C. 2113(a) and 2312. An order entered by the special inquiry 

officer on October 13, 1967 denies the respondent's motion for a termination of the proceedings and orders his deportation to Hungary. 

An application for withholding deportation to Hungary pursuant to 

section 213 (h) of the Immigration and Nationality Act was also denied. The case has been certified to the Board of Immigration Appeals 

for final decision. 

The respondent, an unmarried male alien, 30 years of age, last entered the United States through the port of Newark, New Jersey on or 

about March 18, 1957. He was granted the status of a lawful permanent resident alien as of March 18, 1957 at Newark, New Jersey pursuant to the Act of July 25, 1958. He was convicted on March 14, 1960 

in the United States District Court at Los Angeles, California of the 

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offense of entering a bank with intent to commit larceny therein in 

violation of Title 18 of the United States Code, section 2113(a). He 

was again convicted in the United States District Court at San Diego, 

California on June 20, 1900 of the offense of transporting a stolen vehicle in foreign commerce in violation of United States Code, Title 18, 

section 2312. 

The respondent moves for a, termination of the proceeding on the 

ground that his conviction for transporting a stolen motor vehicle 

in foreign commerce has been set aside pursuant to section 5021 of 

Title 18, U.S.C. Respondent takes the position that he no longer stands 

convicted after entry of two crimes involving moral turpitude. 

The respondent, when convicted on June 20, 1960 for violation of 

18 U.S.C. 2312, was 22 years of age. He was adjudged to be a young 

adult offender 1purSuant to 18 U.S.C. 5010(b) and was committed 

to the custody of the Attorney General or his authorized representative for treatment and supervision until discharged by the Youth 

Correction Division. The United States Board of Parole, Youth Correction Division on October 13, 1965 issued a certificate to the respondent setting aside his conviction under 18 U.S.C. 2312 pursuant 

to the authority contained in section 5021, Title 18, U.S.C. The certificate is a part of the record entered as exhibit 4- 

The issue before us is whether the certificate granted the respondent 

by the Youth Correction Division setting aside his conviction pursuant 

to section 5021 of Title 18, U.S.C. 2amounts to an expungement thereby eliminating the basis for his deportability under section 241(a) (4) 

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

trial attorney maintains that a certificate issued under section 5021 

of the Federal Youth Corrections Act is ineffective to prevent deportation because it amounts to a nonexecutive pardon. 

1 18 U.S.C. 4209, Public Law 85-752 (August 25, 1938) extends the provisions 

of the Federal Youth Corrections Act to young adult offenders who have attained their twenty-second birthday but not their twenty-sixth birthday at the 

time of conviction. 

2 18 U.S.C. 5021 provides as follows : 

Section 5021. Certificate setting aside conviction. 

(a) Upon the unconditional discharge by the division of a committed youth 

offender before the expiration of the maximum sentence imposed upon him, 

the conviction shall be automatically set aside and the division shall issue to 

the youth offender a certificate to that effect. 

(b) Where a youth offender has been placed on probation by the court, the 

court may thereafter, in its discretion, unconditionally discharge such youth 

offender from probation prior to the expiration of the maximum period of 

probation theretofore fixed by the court, which discharge shall automatically 

set aside the conviction, and the court shall issue to the youth offender a certificate to that effect. 

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The record contains a "Certificate Setting Aside Conviction," issued 

by the Youth Correction Division, United States Board of Parole, 

Department of Justice on October 13, 1965. It provides for the unconditional discharge of the respondent and states: "In that such unconditional discharge is effective before the expiration of the maximum sentence heretofore imposed, it has been further ORDERED by 

said Youth Correction Division, United States Board of Parole, that 

his conviction be set aside pursuant to section 5021, Title 18, U.S. 

Code, and this certificate is hereby issued pursuant to that Order." 

The respondent's conviction was set aside pursuant to section 5021 

(a) of 18 "U.S.C. (supra). This provision was enacted by the 81st Congress on September 30, 1950 as a part of Public Law 865 known as 

the Federal Youth Corrections Act. According to the legislative history and court decisions the purpose of Congress in passing the Act 

was to make available for the discretionary use of federal judges a 

system for the sentencing and treatment of youth offenders by permitting the substitution of correctional rehabilitation rather than 

retributive punishment in a penitentiary. See United States Code Congressional and Administrative News, 81st Cong., 2d Sess. 3983, 3992. 

Also Briewe v. United States, 246 F. Supp. 818 (D.C. Del., 1965) ; 

Rawls v. United States, 331 F. 2d 21 (CA. 8, 1964). 

The Deputy Attorney General, in his letter of Jima 21, 1950 to the 

Congress recommending passage of the Federal Youth Corrections 

Act noted the fact that if the offender had "responded to treatment" 

and the Youth Division determined that "rehabilitation has been 

accomplished" the offender could be "discharged unconditionally 

before the full maximum term has expired, in which event the conviction shall be automatically set aside" and the youth offender issued 

a "certificate" to that effect. See United. States Code Congressional 

Service, 81st Cong., 2d Seas., pp. 3391-02. (Emphasis supplied.) 

The court in Rogers v. United States, 326 F. 2d 56 (CA. 10, December 24, 1963) said : 

The Act embodies the modern concept of the treatment of young violators of 

the criminal laws. In place of punishment as the purpose of the pronotmeement 

of criminal sentences, rehabilitation through treatment or "corrective and preventive guidance" is the end sought. 

Since the respondent's conviction for transporting an automobile 

in foreign commerce has been "set aside" pursuant to the Federal 

Youth Corrections Act, does he now stand convicted after entry of two 

crimes involving moral turpitude? The special inquiry officer concludes "that the certificate issued to the respondent under 18 U.S.C. 

5021, setting aside the conviction stated hi allegation of fact No. 5 of 

the order to show cause herein, constitutes a. non-executive pardon and 

cannot, therefore, affect the finding of deportability heretofore made 

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in respondent's case." (P. 8 of special inquiry officer opinion of June 6, 

1966, emphasis supplied.) The Court of Appeals for the District of 

Columbia has ruled, however, that an offender committed under the 

provisions of the Federal iouth Corrections Act ". . . presents a 

marked and important difference from a criminal conviction which 

can be relieved only by a presidential pardon and then only to a limited extent." Tatina v. United States, 810 F. 2d 854, 856 (0.A. D.C., 

1962). 

The court in the Tatwa case (supra) had before it the question of 

whether the District Court could vacate an original sentence entered 

under the Federal Youth Corrections Act and impose a new sentence 

under the Indeterminate Sentence Law rather than under the Youth 

Corrections Act. The court held: 

We are satisfied that the prospect of having the conviction "automatically" 

set aside under 18 U.S.C. § 5021 (1958) is a difference so important as to outweigh the possibility of longer confinement and to warrant the conclusion that the 

second sentence wee more severe than the first and could not be imposed after 

appellant had commenced serving the sentence first imposed. The second sentence imposed will be set aside and the appellant will be resentenced under the 

Youth Corrections Act . . . 

The court in a footnote. stated: 

The provisions of the Federal Youth Corrections Act, 18 § 5021 (11358) 

appear to provide greater relief than would a presidential pardon of the same 

offense. The former acts to expunge the conviction and the record while the latter 

"releases the offender from all disabilities imposed by the offense, and restores 

to him all of his civil rights." Citing Knots v. United States, 95 U.S. 149, 153, 24 

Led. 442 (1877). (Emphasis supplied.) 

The court stated the most important feature of the Youth Corrections 

Act (section 5021) was that a person sentenced thereunder "can, by 

virtue of his own good conduct, be spired the lifelong burden of a 

criminal record . (and) it can, by the choice and conduct of the individual, become a lionorimittal episode so far as the public records are 

concerned." (Emphasis supplies.) 

The appellate trial attorney in his memorandum of June 28, 1966 

takes the position that 18 U.S.C. 5021(a) does not relieve the respondent from deportation. He cites two cases in support of his position. The 

case of Hernandez-V aleneztela v. Rosenberg (304 F. 2d 639) presented 

the question of whether there had been a final conviction for deportation purposes of an alien sentenced under the Youth Offenders Act fora 

narcotic offense,. The case is distinguishable because the alien was never 

granted a "Certificate Setting Aside Conviction." The court with regard to the possibility that the convinction might be set aside said : "It 

is true that the sentence imposed carries with it the possibiliy of congressional grace upon unconditional discharge, but such possibility of 

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future grace in no respect affects the present fact of guilt." The court 

concluded "that the possibility that a youth offender's conviction might 

be set aside does not in a narcotic case deprive that conviction of the 

finality necessary to warrant deportation." The case is also distinguishable because it appears that under 26 U S.C. 7237 (d)* the provisions of 

the Youth Corrections Act is not available to a "young adult offender" 

convicted of a narcotic violation. (Sea United States v. Lane, 284 F. 2d 

935, C.A. 9, 1960; also United States v. Gibbs, 285 F. 2d 225 (CA. 9, 

1960).) 

The case of Tamer v. United States relied upon by the appellate 

trial attorney (278 F. 2d 137, cert. den. 364 U.S. 863) is also a narcotic 

conviction. The court had before it the issue of whether Tanzer was to 

be regarded as a second offender. There is nothing in the opinion which 

would indicate that Tanzer was convicted as a young adult or youth 

offender. Furthermore, Tanzer relied upon 18 U.S.C. 3651 -which concerns suspension of sentence and probation of adult offenders. The 

court's reference to 18 U.S.C. 5021 was merely dicta since the conviction was not set aside under the statute which governs in the case before 

us. It would also appear that 26 U.S.C. 7237 (d) (supra) is applicable 

to the Tanner case. 

It is clear from the legislative history of the Federal Youth Corrections Act (Public Law 865, 81st Cong.) that Congress intended that a 

"youth offender" would not have a continuing criminal record if his 

conviction was set aside pursuant to section 5021 of the Act. Furthermore, the Court of Appeals for the District of Columbia in Tatum v. 

United States (supra) has held that a certificate setting aside a conviction issued pursuant to 18 U.S.C. 5021 "expunges the conviction and 

the record" and provides a greater relief than would a presidential 

pardon. We conclude, therefore, that the respondent is not deportable 

on the charge that after entry he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal 

misconduct because the conviction for transporting a, stolen motor 

vehicle in foreign commerce in violation of 18 U.S.C. 2312 has been 

set aside. 

Our ruling with regard to the respondent's deportability renders 

moot his application for relief under section 243 (h) of the Tmmigration and Nationality Act. An appropriate order will be entered. 

ORDER: The order of deportation entered by the special inquiry 

officer on October 13, 1967 is hereby withdrawn and the proceedings 

pursuant to the order to show cause issued on August 17, 1960 are 

hereby terminated. 

a 26 U.S.C. 7237(d) provides in substance that there shall be no suspension 

of imposition of sentence or granting•of probation upon conviction of a narcotic 

violation. 

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