In the Matter of O---- T

Board of Immigration AppealsFeb 13, 1951
4 I&N Dec. 265 (B.I.A. 1951)

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Decided by Central Office February 13, 1951

Conviction record, "expunged" — Proceedings under section 1203.4 of the California Penal Code — Whether deportable thereafter on basis of conviction record.

Proceedings under section 1203.4 of the California Penal Code are held to "expunge" the record of conviction and thereafter it may not serve as the basis for an order of deportation.


Warrant: Act of 1917 — Conviction of crime prior to entry, to wit: Petty theft.

Act of 1917 — Admission of crime prior to entry, to wit: Petty theft.


Discussion: The respondent is a 49-year-old native and citizen of Mexico who has lived in the United States since his lawful admission for permanent residence in 1919 except for temporary absences. He last entered the United States as a returning resident on or about December 25, 1948. On May 13, 1940, in Los Angeles, Calif., upon a plea of guilty the respondent was convicted of petty theft. He was sentenced to 90 days in jail, 60 days of which were suspended on condition he not violate any law in the State of California for 2 years. The warrant charges are predicated upon this conviction. However, subsequent to the issuance of the warrant of arrest, the court, pursuant to the provisions of section 1203.4 of the Penal Code of California, ordered on June 29, 1949, that the plea of guilty previously entered by said defendant on May 13, 1940, be withdrawn; that a plea of not guilty be entered; and that the accusations against respondent be dismissed. The presiding inspector, in view of the proceedings under section 1203.4 has recommended that the warrant of arrest be canceled. However, the reviewing officer, citing cases of the California Supreme Court that will be hereafter discussed, has concluded that the expungement of the record under section 1203.4 does not remove the respondent's conviction and this officer has recommended deportation unless it is desired to invoke the authority of the 7th proviso to section 3 of the act of February 5, 1917, nunc pro tunc, to adjust respondent's immigration status in the United States.

Section 1203.4 of the California Penal Code provides:

Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the Court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the Court shall set aside the verdict of guilty; and in either case the Court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right and privilege on his probation papers. The probationer may make such application and change of plea in person or by attorney authorizing [ed] in writing; provided, that in any subsequent prosecution of such defendant for any 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 accusation or information dismissed.

The Service and the Board of Immigration Appeals have held in numerous cases that the proceedings under section 1203.4 expunge the record of conviction and that thereafter it may not serve as the basis for an order of deportation. Matter of G---- G---- A-4250665, C.O., July 1, 1949 and Board of Immigration Appeals Decisions cited therein; Matter of V----, 56033/701 B.I.A. April 10, 1943. Reconsideration of the question arises from the fact that the Supreme Court of California on June 15, 1949, in the case of Meyer v. Board of Medical Examiners et al. ( 206 P. (2d) 1085), held that the setting aside of a record of conviction and the dismissal of the criminal proceedings under sections 1203.3 and 1203.4 does not obliterate the fact that there has been a final adjudication of guilt of the crime. The Meyer case involved the suspension of a physician's license in connection with which the record of conviction was used as a basis for a finding that Meyer had been convicted of an offense involving moral turpitude and by reason of such conviction was guilty of unprofessional conduct, the finding and suspension being made after the record of conviction had been expunged under sections 1203.3 and 1203.4.

The Meyer case relied heavily upon the earlier case of In re Phillips ( 109 P. (2d) 344), decided by the Supreme Court of California on January 17, 1941. The Phillips case involved disbarment proceedings against an attorney in connection with which an order of disbarment had been entered prior to the proceedings under sections 1203.3 and 1203.4 and in which a petition to set aside the order of disbarment and to restore the petitioner's name to the roll of attorneys was denied after expungement of the record of conviction under section 1203.4.

The effect of proceedings under section 1203.4 has been considered in Federal courts in connection with naturalization proceedings ( In re Ringnalda, 48 F. Supp. 975, (S.D. Calif., C.D., 1943), Service File 246-C-5675447; In re Paoli, 49 F. Supp. 128 (N.D. Calif. S.D., 1943)). The courts in the Federal cases were cognizant of the holding of the State court in the Phillips case. The effect of the holdings in the Federal cases is that the acts of the persons involved may be considered in connection with the determination of whether good moral character has been established but that the record of conviction may not be relied upon as establishing commission of the acts. In the Meyer case the court permitted the record of conviction to be considered as establishing unprofessional conduct.

The court in the Meyer case split four to three and in a strong dissent it was stated:

The majority point out that the legislature could not have intended that the proceeding under section 1203.4 of the Penal Code was to wipe out the defendant's guilt because (1) of the express proviso contained in the section; (2) because the conviction may be used for impeachment purposes, People v. James, 40 Cal. App. (2d) 740, 746, 105 P. (2d) 947; (3) because it may be used for the purpose of suspending or revoking a driver's license (Vehicle Code, sec. 309); (4) because it may be used in a second prosecution for failure to provide for a minor child, and because all matters inherent in the conviction (that is, the adjudication on the issue of parentage) were admissible in evidence. People v. Mojado, 22 Cal. App. (2d) 323, 70 P. (2d) 1015.

I would like to point out, in this connection, that in People v. James (supra), the defendant was charged with the crime of grand theft. The fact that he had been previously convicted and the conviction dismissed pursuant to section 1203.4 of the Penal Code was used to impeach him. This case does not add another exception to the statute, but falls squarely within the one there contained. * * *

And in People v. Mojado (supra), the defendant was found guilty, under section 270 of the Penal Code, of failure to provide for a minor child. The only question raised there was whether the court erred in admitting in evidence the record of a prior conviction which had been subsequently dismissed pursuant to section 1203.4 of the Penal Code. Note that this case, too, falls squarely within the exception to the section and is not additional thereto. Both People v. James, and People v. Mojado (supra), cite with approval statements made in the case of People v. Hainline, 219 Cal. 532, 28 P. (2d) 17. In that case it was said, 219 Cal. at page 534, 28 P. (2d) at page 17: "If, prior to the 1927 amendment, any doubt existed in the minds of lawyers, judges, and laymen as to the status of those who committed a second felony, such doubt was removed by said amendment (St. 1927, p. 1493), which strips them of all the privileges and rights which were restored to them by the provisions of the original act upon the completion of their probationary term. * * *

"The concluding portion of the act, which provides that if the probationer commits a second offense he shall forfeit all the rights with which he was clothed at the time the court ordered the information dismissed, constitutes the amendment of 1927 * * *. Said amendment simply and justly provides that persons who have refused to profit by the grace extended to them upon the first offense shall, upon conviction of a subsequent felony, suffer the penalty of the law as prescribed for the punishment of all other offenders." [Emphasis added.]

Section 309 of the Vehicle Code is an express additional statutory exception to the Penal Code section under consideration.

The charges against the respondent in the instant case are that he has been convicted of a crime and that he admits, on the basis of the plea in the criminal case, the commission of this crime. California statutes specifically provide that for some purposes the proceedings under section 1203.4 are not regarded as having expunged the record of the crime. In the words of the majority opinion in the Meyer case "As the release of the `penalties and disabilities' clause of the probation statute has been so qualified in its application, it does not appear that it was thereby intended to obliterate the record of conviction against a defendant and purge him of the guilt inherent therein (cf. Sherry v. Ingels (supra), 34 Cal. App. (2d) 632, 94 P. (2d) 77) or to `wipe out absolutely' and for all purposes the dismissed proceedings as a relevant consideration and "to place the defendant in the position which he would have occupied in all respects as a citizen if no accusation or information had ever been presented against him.' People v. Mackey, 58 Cal. App. 123, 130, 208, P. 135, 138. From this standpoint, appellant's theory that the import of the probation statute and the dismissal proceeding is to expunge the record of the crime, Sherry v. Ingels (supra); People v. Mackey (supra), cannot prevail." It is the opinion of the State court that the expungement proceedings do not obliterate the adjudication of guilt, that the person remains one who has been convicted, and that the record of conviction is admissible as evidence of conviction of the crime in proceedings additional to the proceedings specifically provided for by statute. The State and Federal courts, however, are in disagreement. There is still a substantial doubt as to the propriety of holding that, as far as immigration proceedings are concerned, the person remains one who has been convicted of a crime. Accordingly, no change appears to be warranted in the present view of the Service to the effect that in cases such as the instant one the charges are not sustained. The warrant of arrest will therefore be canceled and the proceedings will be terminated.

Order: It is ordered that the warrant of arrest be canceled and that the proceedings be terminated.