Interim Decision #2543 

MATTER OF MOELLER 

In Deportation Proceedings 

A-12371591 

Decided by Board December 16, 1976 

(1) Respondent, a 35-year-old native of Germany who was admitted for permanent 

residence in 1962 was convicted in 1974 for the felonious possession of marihuana. 

Respondent contended on appeal that the destruction of his record of conviction under 

section 11361.5 of the Health and Safety Code of California made him not amenable to 

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

(2) Where the marijuana or narcotics conviction is not under the Federal Youth Corrections Act or its Statp prynivalent, unconditional pardons. erasures of criminal records, 

expungements and annulments of records of convictions do not affect deportability 

under section 241(a)(11) of the Act. Similarly, destruction of records of conviction 

pur.%iant to a statute designed to benefit the convicted population at large (Imstead of 

just the youthful offender) has no effect on deportability under section 241(a)(11). 

Matter of Lima, Interim Decision 2490 distinguished. 

(3) Since respondent has a record of lawful admission for permanent residence dating back 

to 1962, and there is no record that he departed the United States following his 

marihuana conviction, the record will be remanded to the immigration judge to permit 

respondent in deportation proceedings to file an application for a waiver of the instant 

ground of deportability under section 212(e) of the Act. 

CHARGE: 

Order Act of 1952—Section 241(a)(11) t8 U.S.C. 1251(a)(11)]—Convicted of violation 

relating to illicit possession of marihuana 

ON BEHALF. DP RESPONDENT: ON BEHALF OF SERVICE: 

Terence Hallinan, Esquire Philip P. Leadbetter 

819 Eddy Street Trial Attorney 

San Francisco, California 94109 

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members 

The respondent appeals from a decision of an immigration judge dated 

April 19, 1976 where he was found deportable as charged and his 

deportation to Germany was ordered. The record will be remanded for 

further proceedings. 

The respondent is a 35-year-old native of Germany who was admitted 

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for lawful permanent residence on February 12, 1962, at New York City. 

On December 20, 1974, the respondent was convicted in the Superior 

Court of the State of California of the felonious possession of marihuana. 

The respondent contends on appeal that the destruction of the record 

of conviction pursuant to section 11361.5 of the Health and Safety. Code 

of California makes him not amenable to deportation under section 

241(a)(11) of the Immigration and Nationality Act. The respondent's 

contention is rejected. 

In eases involving narcotics and marihuana violators not convicted 

under the Federal Youth Corrections Act or its State equivalent, we 

have limited our inquiry to the issue of whether a conviction existed. 

Matter of Varagianis, Interim Decision 2537 (BIA October 15, 1976). 

We have held that as far as narcotics and marihuana violations are 

concerned, when the conviction is not under the Federal Youth Corrections Act or its State equivalent, unconditional pardons, erasures of 

criminal records, expungements and annulments of records of convictions do not affect deportability under section 241(a)(11) of the Act. See 

Matter of Varagianis, supra; Matter of Espinoza, Interim Decision 

2391 (BIA 1975); Matter of Lindner, Interim Decision 2341 (BIA 1975). 

We see no reason why the destruction of records should be treated 

differently. Deportation is a function of Federal and not State law. It 

-would be anomalous for a Federal action based on a State conviction to be 

controlled by how the State chooses to subsequently treat the event. 

Cruz-Martinez v. INS, 404 F.2d 1198 (9 Cir. 1969). 1 

The present case is distinguishable from Matter of Lima, Interim 

Decision 2490 (BIA 1976). There, the court records were sealed under a 

statute having objectives similar to the ones expressed by Congress 

when it approved the Federal Youth Corrections Act. Here, the statute 

under which the destruction of the records is ordered is not intended to 

benefit youthful offenders by provisions designed to eliminate or 

ameliorate the lifelong stigma that may.result from a conviction. This 

statute is directed to benefit the convicted population at large. 

The record discloses that the respondent has a record of lawful permanent residence dating back to 1962. His deportability resulted from a 

marihuana violation. The record shows no evidence that he departed 

from the United States following his conviction. 

Since the appeal was filed by the respondent, we have decided that 

relief under section 212(c) of the Act is available to a lawful permanent 

resident alien in deportation proceedings even if there is no subsequent 

entry after the ground of deportability arises. See Matter of SilvaOzalle, Interim Decision 2532 (BIA September 10, 1976). Therefore, we 

We are aware of Rehman v. INS, 544 P.24 71, Civ. No. 76-4022 (2 Cir. October 14, 

19 76). However, that decision is not controlling in this case. 

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shall remand the record so as to allow the respondent an opportunity to 

file an application for relief under section 212(c) of the Act. We make no 

intimation as to the merits of such an application. 

ORDER: The record is remanded for further proceedings and the 

entry of a new decision. 

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