int,erim Lreemi.011 ifL4 IV 

MATTER OF ZING'S 

In Deportation Proceedings 

A-7900466 

Decided by Board March 14, 1974 

The setting aside of a narcotics conviction pursuant to the provisions of the 

Federal Youth Corrections Act (18 U.S.C. 5021(b)) operates to eliminate the 

conviction as a basis for deportation under section 241(aX11) of the Immigration and Nationality Act, as amended. 

CHARGE: 

Order: Act of 1952—Section 241(aX11) [8 U.S.C. 1251(a)(11)J—Convicted of 

violation of law relating to illicit traffic in marijuana, 

to wit, the District of Columbia Code, section 33-402. 

ON BEHALF OF RESPONDENT: Jack Wasserman, Esquire 

1707 II Street, N.W. 

Washington, D. C. 20006 

This case is before us on certification from an order of the 

immigration judge terminating deportation proceedings. The decision of the immigration judge will be affirmed. 

The record relates to a 24-year-old single male alien, a native of 

Germany, who entered the United States for permanent residence 

on November 24, 1950, when he was one year of age. He was 

convicted of a narcotics violation, on February 20, 1968, upon a. 

plea of guilty, in the Superior Court of the District of Columbia. At 

sentencing, on May 7, 1968, he received a suspended sentence and 

one year probation. Thereafter the Immigration Service commenced deportation proceedings. An order of deportation was 

entered on December 10, 1968 and was sustained by us on May 5, 

1969. After the judge of the Superior Court was apprised of the 

deportation order, he entered an order, dated July 28, 1970, 

resentencing the respondent' under the Federal Youth Correc1The service has not raised as an issue the question of whether the court had 

authority to resentence the respondent and whether the act of so doing 

eliminates the adult narcotics offense from our consideration. We shall, therefore, assume that the court was authorized in the action it took and that the new 

sentence is the only one with which we are concerned. 

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interun vecamou. 3r ‘ra 

tions Act, 18 U.S.C. 5005, et seq. 2The respondent could have been 

sentenced under the Federal Youth Corrections Act originally, as 

he was then less than 21 years of age. The judge's order extended 

probation until January 2, 1971 and was nunc pro tune to May 7, 

1969, the date on which the original sentence expired. The Federal 

Youth Corrections Act contains a provision that convictions thereunder may be automatically set aside prior to the expiration of 

probation.2The court terminated the respondent's probation on 

December 8, 1970, and issued a "Certificate of Vacation of Conviction," stating that "this Court discharged Marls Zingis from 

probation prior to the expiration of the maximum period of his 

probation and therefore the judgement of conviction entered by 

this Court on 2-20-1968 ... has been set aside pursuant to the 

provisions of Section 5021(b), Title 18, U.S. Code." Thereupon, the 

respondent moved us to reopen and reconsider our decision ordering his deportation. We granted the motion and remanded to the 

immigration judge on November 10, 1971 for a certified court 

record of the complete disposition of the criminal offense. On 

remand the immigration judge terminated the proceedings on the 

basis of Mestre Morera v. INS, 462 F.2d 1030 (C.A. 1, 1972), and 

certified the case to this Board. 

The issue before us is whether the setting aside of a conviction 

under the Federal Youth Corrections Act can operate to eliminate 

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

the Immigration and Nationality Act. The same question was 

considered in the case of Mestre Morera v. INS, supra, wherein the 

court decided to set aside the order of deportation. We are in 

accord with the holding of that case, and in agreement with the 

immigration judge's decision to follow it. 

In enacting the Federal Youth Corrections Act, Congress expressed its objectives as the rehabilitation of youthful offenders to 

enable them to become useful citizens in our society, U.S. Code 

Congressional Service, 81st Congress, 2d Sess., page 3983 (1950). 

The desire of Congress to give youth a new chance would be 

2"§ 5006. Definitions. ...(e) 'Youth offender' means a person under the age of 

twenty-one years at the time of conviction; ...." 

* * * * * 

"5 solo. Sentenoo. (a) If the court is of the opinion that the youth offender does 

not need commitment, it may suspend the imposition or execution of sentence 

and place the youth offender on probation." 

s 45021. Certificate setting aside conviction. ... (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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----v.- •, -- • 

thwarted by deportation. Its policy to provide for expungement of 

offenses by juveniles is as important a congressional policy as the 

policy to deport narcotics offenders. 

We are aware that the Ninth Circuit has expressed disapproval 

of the holding in Mestre Morera v. INS, supra, Andrade-Gamin v. 

INS, No. 73-474 (C. A. 9, 1973), affg Matter of Andrade-Gamiz, 

Interim Decision No. 2205 (BIA 1973). The Ninth Circuit cited 

Hernandez-Valenzuela v. Rosenberg, 204 F.2d 639 (C.A. 9, 1962), for 

the proposition that the result in Mestre Morera v. INS, supra, had 

already been rejected by the Ninth Circuit. Actually, HernandezValenzuela v. Rosenberg, supra, is distinguishable from Mestre 

Morera v. INS, supra, because the two cases did not reach the 

same issue. Hernanclez-Valenzuela v. Rosenberg, supra, involved a 

Federal Youth Corrections Act conviction which had not yet been 

set aside. The alien urged that the conviction was not final, 

because of the possibility that it could be later set aside. The court 

rejected the alien's argument and stated "... the possibility of 

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

Mestre Morera v. INS, supra, and in the case before us, the 

convictions have already been set aside. Thus the holding in 

Hernandez-Valenzuela v. Rosenberg, supra, did not necessarily 

stand for the proposition that a narcotics conviction under the 

Federal Youth Corrections Act which has been set aside remains 

as a basis for deportation, because in that cash the conviction had 

not been set aside. Therefore Lhe cases are distinguishable and 

reconcilable. 

Furthermore, we believe that Andrade-Gctmiz v. INS, supra, is 

distinguishable from Mestre Morera v. INS, supra, and that the 

Ninth Circuit in deciding the former case did not need to reach the 

issue of the effect of a narcotics conviction which has been set 

aside under the Federal Youth. Corrections Act, because AndradeGamiz's case did not involve a Federal Youth Corrections Act 

conviction, but rather a state expungement under California law. 

There is ample authority in the Ninth Circuit for the result 

reached in Andrade-Gamin v. INS, supra, without reaching the 

issue presented in Mestre Morera v. INS, supra. The Ninth Circuit 

has held repeatedly that expungement of a narcotics conviction 

pursuant to the California expungement statute does not remove 

the conviction as a basis for deportation, Broumrigg v. INS, 356 

F.2d 877 (C.A. 9, 1966); Kelly v. INS, 349 F.2d 473 (C.A. 9, 1965), 

cert. denied 382 U.S. 932 (1965); Garcia-Gonzalez v. INS, 344 F2d 

804 (C.A. 9, 1965). These cases support the decision of the Attorney 

General in Matter of A—F—, 8 L & N. Dec. 429 (BIA, A.G. 1959), by 

which decision this Board is, of course, bound. 

It is reasonable to distinguish the Federal Youth Corrections 

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Interim Decision frzwu 

Act from state expungement laws. Because the former is a 

Federal statute, there is no danger that it will render deportability 

of aliens subject to the vagaries of state law. Avoiding such a 

result was a primary object of the Attorney General in Matter of 

A— F—, supra, in which he deemed state court expungements of 

narcotics convictions of no effect on deportability. Furthermore, a 

California expungement is not a total expungement, because it 

may be considered upon sentencing of a second offense or as the 

basis for the loss of various licenses and other privileges. In 

addition, the California statute applies to all offenders, unlike the 

Federal Youth Corrections Act which applies only to youthful 

offenders. 

These distinctions are significant. Under the provisions of the 

Federal Youth Corrections Act, the conviction, when it is set aside, 

is totally set aside. It may not be used in any way. It is a greater 

remedy than a pardon, Tatum v. United States, 310 F2d 854 (D.C. 

Cir., 1967). It is available solely to juveniles. 

For these reasons, we have concluded that the immigration 

judge's decision in terminating deportation proceedings was correct. 

ORDER: The decision of the immigration judge is affirmed. 

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