Interim Decision #3103 

MATTER OF GRULLON 

In Deportation Proceedings 

A-26661082 

Decided by Board April 19, 1989 

(1) A conviction does not exist for immigration purposes where an alien's criminal 

charges were dismissed without prejudice following his successful completion of a 

pretrial intervention program prescribed by section 944.025 of the Florida Statutes. 

(2) In the absence of a conviction, a respondent in deportation proceedings is not barred 

from establishing good moral character under section 101(0(3) of the Immigration 

and Nationality Act, 8 U.S.C. § 1101(0(3) (1982), for the purpose of applying for 

suspension of deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a) (1982). 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)1—Nonimmigrant—remained 

longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Larry S. Rifkin, Esquire Ronald G. Sonom 

200 S.E. First Street, Suite 305 General Attorney 

Miami, Florida 33131 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated April 15, 1985, the immigration judge found the 

respondent deportable under section 241(a)(2) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), denied his applications 

for suspension of deportation and voluntary departure, and ordered 

him deported from the United States. The respondent has appealed 

from that decision. The appeal will be sustained and the record will be 

remanded to the immigration judge for further proceedings. 

The respondent is a 42-year-old native and citizen of the Dominican Republic. The record reflects that he entered the United States on 

March 28, 1972, as a nonimmigrant visitor with authorization to 

remain for 6 months. The respondent is married to a citizen of El 

Salvador and they have a United States citizen daughter who is now 6 

years old. 

During deportation proceedings the respondent conceded deportability as an overstayed nonimmigrant and applied for suspension of 

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Interim Decision #3103 

deportation. In his testimony supporting this application he admitted 

that he had been arrested for a problem with cocaine. The record 

reflects that the respondent was charged in the State of Florida with 

possession of a controlled substance on June 12, 1983. The respondent 

claimed, however, that the charges should not be considered a 

conviction for immigration purposes because he had participated in 

the Florida pretrial intervention program, and his criminal record 

would be expunged within a few months pursuant to section 943.058 

of the Florida Statutes.' 

The attorney for the Immigration and Naturalization Service 

opposed the respondent's application for suspension of deportation, 

arguing that expunction of a drug conviction does not eliminate it for 

immigration purposes. The immigration judge concurred with the 

Service's position, finding that section 243.058 of the Florida Statutes 2 

 was not a state counterpart to the federal first offender statute. He 

therefore concluded that the respondent was unable to establish the 

requisite good moral character for suspension of deportation and 

voluntary departure. 

On appeal the respondent has submitted documents' supporting his 

claim that he successfully completed the pretrial intervention program 

and that court records now have been sealed and indicate that he has 

no felony convictions. Thus he reiterates his assertion that, because the 

charges against him have been dropped under the Florida pretrial 

intervention program, he has not been convicted for immigration 

purposes. We agree. 

The State of Florida has a statutory provision for pretrial intervention programs under section 944.025 of the Florida Statutes. That 

statute provides in pertinent part: 

(I) The department shall supervise pretrial intervention programs for persons 

charged with a crime, before or after any information has been filed or an indictment 

has been returned in the circuit court. Such programs shall provide appropriate 

counseling, education, supervision, and medical and psychological treatment as 

available and when appropriate for the persons released to such programs. 

(2) Any first offender, or any person previously convicted of no more than one 

nonviolent misdemeanor, who is charged with any misdemeanor or felony of the 

third degree is eligible for release to the pretrial intervention program on the 

approval of the administrator of the program and the consent of the victim, the state 

attorney, and the judge who presided at the initial appearance hearing of the 

offender. In no case, however, shall any individual be so released unless, after 

According to section 943.058, the courts may order the sealing or expunction of 

criminal history records of persons who have not been adjudicated guilty of a previous 

Criminal offense or of the charges stemming from the arrest or criminal activity sought 

to be expunged and who have not secured a prior expunction or sealing of records. 

2We note that the immigration judge erroneously referred to the pertinent section of 

the Florida Statutes, section 943.058, as section 243.058. 

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Interim Decision #3103 

consultation with his attorney or one made available to him if he is indigent, he has 

voluntarily agreed to such program and has knowingly and intelligently waived his 

right to a speedy trial for the period of his diversion.... 

(3) The criminal charges against an individual admitted to the program shall be 

continued without final disposition for a period of 90 days from the date the 

individual was released to the program, if the offender's participation in the program 

is satisfactory, and for an additional 90 days upon the request of the program 

administrator and consent of the state attorney, if the offender's participation in the 

program is satisfactory. 

(4) Resumption of pending criminal proceedings shall be undertaken at any time 

if the program administrator or state attorney finds such individual is not fulfilling 

his obligations under this plan or if the public interest so requires. 

(5) At the end of the intervention period, the administrator shall recommend: 

(a) That the case revert to normal channels for prosecution in instances in which 

the offender's participation in the program has been unsatisfactory; 

(b) That the offender is in need of further supervision; or 

(c) That dismissal of charges without prejudice shall be entered in instances in 

which prosecution is not deemed necessary. 

The state attorney shall make the final determination as to whether the prosecution 

shall continue. 

Fla. Stat. § 944.025 (1980). 

In Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), we set forth a new 

standard for determining whether a conviction exists for immigration 

purposes. According to Ozkok, if there has been no adjudication of 

guilt, a conviction will be found only where the alien has pleaded guilty 

or nolo contendere or was found guilty of the charges against him; the 

judge ordered some form of punishment, penalty, or restraint of liberty 

to be imposed; 3and a judgment or adjudication of guilt may be 

entered without further proceedings regarding guilt or innocence if the 

person violated the terms of his probation or failed to comply with the 

requirements of the court's order. 

The respondent's criminal records reflect that he never entered a 

plea to the charges against him. According to section 944.025(1) of the 

Florida Statutes, the pretrial intervention program is available to 

persons charged with a crime even before an information has been 

filed or an indictment returned. Clearly then, entry into the program 

precedes a pleading by the accused or a finding of guilt by the court. In 

such case the first element of Ozkok is not present. 

Furthermore, if a person participating in the program does not 

'Such restraint of liberty was found to include incarceration, probation, fine or' 

restitution, and community-based sanctions such as rehabilitation programs, workrelease or study-release programs, revocation or suspension of a driver's licence, 

deprivation of nonessential activities or privileges, or community services. 

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fulfill his obligations under the plan, his case must revert to normal 

channels for prosecution. See Fla. Stat. §§ 944.025(4)-(5)(a) (1980). 

Since no plea or finding of guilt has previously been entered, criminal 

proceedings are necessary to determine the guilt or innocence of the 

accused. Under these circumstances, the third prong of the Ozkok 

standard also cannot be met. 

In the respondent's case, his criminal records reflect that he 

successfully completed the Florida pretrial intervention program. They 

further indicate that the charges against him were subsequently 

dropped and that the record of his arrest was later expunged. Having 

reviewed these events and the provisions of Florida law, we find that 

the respondent has not been convicted of a drug offense for immigration purposes. Accordingly, we conclude that the immigration judge 

erred in finding that the respondent was convicted of a drug violation 

and was barred as a result of his conviction from establishing good 

moral character under section 101(0(3) of the Act, 8 U.S.C. 

§ 1101(0(3) (1982). 4We shall therefore sustain the appeal and remand 

the record to the immigration judge for further proceedings. 

ORDER: The appeal is sustained and the record is remanded 

for further proceedings. 

4Section 101(0(3) precludes an alien from establishing good moral character if he falls 

within the provisions of section 212(a)(23) of the Act, 8 U.S.C. § 1182(a)(23) (1982). 

That section relates not only to aliens convicted of violating any law relating to a 

controlled substance, but to those suspected of trafficking in drugs as well. 

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