Interim Decision #1918 

MATTER OF TSIMBIDY-ROCHU 

In Deportation Proceedings 

A-14824676 

Decided by Board November 6, 1968 

Where, following respondent's conviction in the State of Nevada of possession of marijuana, her plea of guilty was withdrawn and the information 

was dismissed by the court pursuant to section 176.225 of the Nevada Revised Statutes (which action conforms to an expungement under section 

1203.4 of the California Penal Code), the dismissed of the information by 

the Nevada court is ineffective to remove respondent's narcotic conviction 

as a basis for deportation under section 241(a) (11) of the Immigration 

and Nationality Act.* 

CHARGE: 

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11))—Convicted of possessing marijuana. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Donald L. Ungar, Esquire Jay Segal 

517 Washington Street Trial Attorney 

San Francisco, Calif, 94111 (Brief submitted) 

The instant matter arises on a motion to reconsider our prior 

decision rendered on July 17, 1868, wherein we dismissed the appeal and affirmed the finding of the special inquiry officer ordering the respondent deported. 

These proceedings initially arose under section 241 (a) (11) of 

the Immigration and Nationality Act. The respondent, a native 

and citizen of France, was convicted on her plea' of guilty in the 

Second Judicial District Court, State of Nevada, County of 

Washoe, on April 22, 1968, for the offense of possession of a narcotic drug, to wit, marijuana. Following her conviction, the respondent was sentenced to the Nevada State Prison for a term of 

one year. The sentence was suspended and the respondent was 

placed on probation for a period of three months on condition 

that she surrender to the Immigration and Naturalization author- 

* Reaffirmed. See 414 F.2d 797 (C.A. 9, 1969). 

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Interim Decision #1918 

ities. Following our adverse decision on the appeal, respondent, 

through her counsel, filed a petition for review with the United 

States Court of Appeals for the Ninth Circuit. On July 21, 1968, 

respondent's plea of guilty was changed to that of not guilty and 

the information was dismissed pursuant to section 176.225 of the 

Nevada Revised Statutes. 

The purpose of the instant motion to reconsider is to raise the 

issue of whether the court order removes the conviction of respondent as the basis of deportation. The Service has filed a reply 

brief in which it states that the Petition and Order for Honorable 

Discharge from Probation attached to the motion is evidence of 

an expungement and does not wipe out respondent's conviction for 

the possession of marijuana. The Service characterizes the Nevada statute cited above as being similar to section '1208.4 of the 

California.Penal Code providing for expungements.I 

The sole Question we are called upon to decide is whether or 

not the action of the Nevada Court dismissing the information 

against the respondent has the effect of removing the basis of her 

deportation under section 241 (a) (11) of the Immigration and 

Nationality Act. A review of the Nevada law and examination of 

the evidence presented in connection with the motion to reconsider compels us to conclude that the basis of deportation is not 

removed. 

1Section 176.225 of the Nevada Revised Statutes, reads as follows: 

1. Every defendant who: 

(a) Has fulfilled the conditions of his probation for the entire period 

thereof; or 

(b) Is recommended for earlier discharge by the chief parole and probation officer; or 

(e) Has domonstrated his fitness for honorable discharge but because of 

economic hardship, verified by a parole and probation officer, has been unable to make restitution as ordered by the court, may at any time thereafter 

be permitted by the court to withdraw his plea of guilty or nolo contenders 

and enter a plea of not guilty; or, if he has been convicted after a plea of 

not guilty, the court may set aside the verdict of guilty; and in either case, 

the court shall thereupon dismiss the indictment or information against such 

defendant, who shall thereafter be released from all penalties and disabili: 

ties resulting from the offense or crime of which he has been convicted. 

2. The probationer shall be informed of this privilege in his probation 

papers. 

3. The probationer may make such application and change of plea in 

person or by attorney authorized in writing, or by a parole and probation 

officer authorized in writing; but in any subsequent prosecution of the defendant for acay 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 indictment or information had not been dismissed. (Emphasis supplied.) 

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Interim Decision #1918 

We have previously held in Matter A—F—, 8 I. & N. Dec. 429 

(1959), that expungement under the California Penal Code of a 

narcotics conviction did eliminate the ground of deportatfon 

under section 241 (a) (11) of the Immigration and Nationality 

Act. The Attorney General reversed our conclusion, stating that 

expungement has no effect on deportability arising under section 

241 (a) (11). The Attorney General restated his position again in 

Matter of G—, 9 I. & N. Dec. 159 (1961) and more recently in 

Matter of Ibarra-Obando, 12 I. & N. Dec. 576. We have reviewed 

the Nevada statute cited herein and find that it conforms to the 

California Penal Statute on expungements. Consequently, our 

above rulings stating that an expungement of a narcotics conviction does not remove the basis for deportation are applicable to 

the instant matter and we affirm our prior holding that the respondent is deportable on the charge contained in the order to 

show cause. 

ORDER: It is ordered that the decision finding the respondent 

deportable to France under section 241 (a) (11) be hereby affirmed. 

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