Interim Decision #22O5 

MATTbR OF ANDRADE 

In Deportation Proceedings 

A-11351779 

Decided by Board May 31, 1973 

Expungement under California law of a conviction as a youth offender is not 

tantamount to an expungement pursuant to the provisions of the Federal 

Youth Corrections Act (18 U.S.C. 5021(a)); hence, respondent is deportable 

under section 241(a)(11) of the Immigration and Nationality Act, as amended, 

on the basis of his conviction of the offense of possession of marijuana in 

violation of section 11530 of the Health and Safety Code of California, 

notwithstanding an expungement of the conviction under section 1772 of the 

California Welfare and Institutions Code.* 

CHARGE: 

Order: Act of 1952—Section 241(aX11) [8 U.S.C. 1251(a)(11)]--Any time has been 

convicted of a violation of any law or regulation relating to the illicit possession of marijuana. 

ON BEHALF OF RESPONDENT: Gary H. Manulkin, Esquire 

3609 North Mission Road 

Los Angeles, California 90031 

(Briefs filed) 

This is an appeal from a decision of an immigration judge 

denying the respondent's application for suspension of deportation 

pursuant to section 244(aX2) of the Immigration and Nationality 

Act, finding him deportable as charged in the order to show cause, 

and denying him the privilege of voluntary departure. The appeal 

will be dismissed. 

The respondent is a 22 year-old single male, native and citizen of 

Mexico. He entered the United States as an immigrant on November 19, 1957. On January 26, 1971 he was convicted in the Superior 

Court of the State of California, for the County of Los Angeles, of 

the offense of possession of marijuana in violation of section 11530 

of the Health and Safety Code of the State of California. Respond- 

* Superseded. See Matter of Andrade, Interim Decision No. 2276 (B IA, Apr. 5, 

1974). 

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ent conceded his deportability on the charge contained in the 

order to show cause (Tr. pp. 3, 4). 

Counsel in his brief on appeal contends (1) the immigration 

judge wrongfully and erroneously denied the respondent's application for suspension of deportation; (2) the immigration judge 

wrongfully and erroneously denied the respondent's application 

for voluntary departure; (3) the immigration judge improperly 

considered the respondent's conviction to be a bar to a finding of 

good moral character, notwithstanding the fact that the conviction 

had subsequently been expunged pursuant to the California Penal 

Code. Counsel also submitted evidence of the expungement of the 

record of the conviction here. 

After careful consideration of the record, including contentions 

made by counsel on appeal, we are satisfied that the hearing was 

fair, that deportability has been established by evidence that is 

clear, convincing and unequivocal. Since the respondent would 

have been found excludable under section 212(aX23) he may not be 

regarded as a person of good moral character under the provisions 

of section 101(fX3). Accordingly, not having established good moral 

character the respondent is ineligible for the discretionary relief of 

suspension of deportation or voluntary departure. 

With reference to respondent's claim that the conviction has 

been expunged, we note that the Attorney General has ruled that 

an expungement of a narcotic conviction under the law of the 

State of California has no effect upon a final finding of deportability under section 241(aXll) of the Immigration and Nationality 

Act, Matter of A—F---, 8 I. & N. Dec. 429 (B IA, 1959). See alsb 

Matter of G--; 9 I. & N. Dec. 159 (BIA, 1961). The courts have 

sustained the Attorney General's ruling. See Garcia-Gonzales v. 

INS, 344 F.2d 804 (CA. 9, 1965), cert. denied 382 U.S. 840; ;idly v. 

INS, 349 F.2d 473 (C.A. 9, 1965), cert. denied 389 U.S. 932; Brcrumrigg v. INS, 356 F.2d 877 (C.A. 9, 1966); Cruz-Martinez v. INS, 404 

F.2d 1198 (C.A. 9, 1968), cert. denied 394 U.S. 955; Gonzalez de Lard 

v. United States, 439 F.2d 1316 (C.A. 5, 1971). Moreover, the mere 

fact that the alien here was a minor at the time the crime was 

committed does not of itself exempt him from the operation of the 

deportation statute, U.S. ex rel. Circelta v. Sahli, 216 F.2d 33 (C.A. 

7, 1954), cert. denied 348 U.S. 964; Matter of R- 51 I. & N. Dec. 613 

;1943). C£ Adams v. United States, 299 F.2d 327 (C.A. 9, 1962); 

Vernanclez-Valensuela v. Rosenberg, 304 F.2d 639 (C.A. 9, 1962). 

Counsel in his supplemental brief on appeal urges that a 

comparison of the California expungement statute (section 1772 of 

the California Welfare and Institutions Code) with the expimgenent of a narcotic conviction pursuant to the Federal Youth 

Dorrections Act (18 U.S.C. 5021(a)) indicates that the effect and 

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Interim Decision #2205 

purpose are precisely the same, citingMorera v. INS, 462 F.2d 1030 

(CA. 1, 1971). We do not agree with this contention. What counsel 

is urging is that if the State of California expunges the conviction, 

disabilities flowing from it are eliminated and the federal penalty 

of deportation should not then be imposed. 

Deportation is a function of federal and not of state law. It 

would be anomalous for a federal action, based upon a state 

conviction, to be controlled by how a state may choose subsequently to treat the event. It is the fact of state conviction, not the 

manner of state punishment for that conviction, that is crucial, 

Garcia-Gonzales v. INS, supra. Moreover, it is clear from the 

legislative history of the Federal Youth Corrections Act that 

Congress intended that a "youth offender" would not have a 

continuing criminal record if his conviction was set aside pursuant 

to 18 U.S.C. 5021. But Congress made it equally clear that this was 

a federal law binding only in the federal courts and excluding any 

state action. Here, unlike Morera, supra, expungement of the 

narcotic conviction was pursuant to state law under a procedure 

not on the merits. On the other hand, section 5021 of the Federal 

Youth Corrections Act clearly contemplates more than a "technical erasure." 

In our review of this record we find that the respondent was 

accorded a fair hearing; that the decision of the immigration judge 

was based upon the evidence adduced at the hearing; that the 

evidence upon which the decision was based was clear, convincing 

and unequivocal; and that the immigration judge properly applied 

the pertinent legal principles. We are aware of the sympathetic 

factors present in this case. Respondent's suspension application 

reflects that he has numerous close relatives in the United States, 

including four brothers, who are United States citizens, and his 

father, mother and a sister, who are lawful permanent residents. 

Nevertheless, we have no alternative but to affirm the decision of 

the immigration judge and dismiss the appeal. Accordingly, the 

following order will be entered. 

ORDER; The appeal is dismissed. 

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