A-4056115
Decided by Board June 20, 1957
Petty offense — Section 4, P.L. 770 (Act of September 3, 1954) — Benefits not available where alien has committed two offenses despite expungement of record of conviction for first offense under section 1203.4, California Penal Code.
(1) Respondent's conviction for burglary in 1945 was expunged under section 1203.4 of the California Penal Code. When he was convicted again in 1950 for petit theft, his former conviction was not again pleaded and tried. Hence, the expungement remained effective and the burglary conviction cannot serve as a ground of deportation.
(2) However, the relief afforded by section 4 of the Act of September 3, 1954, which applies to aliens who have committed a single offense, is not available. Expungement of the record of conviction does not completely obliterate the fact that the unlawful acts occurred. The test in applying the statute is not whether the alien has been convicted of, or admits having committed, more than one offense but whether there is a preponderence of evidence which establishes that he has in fact committed more than one offense involving moral turpitude.
CHARGE:
Order To Show Cause: Act of 1952-Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at time of entry, convicted of crime involving moral turpitude (section 212 (a) (9) of the act): Petit theft (section 484, California Penal Code) and burglary, second degree (section 459, California Penal Code).
BEFORE THE BOARD
Discussion: An order entered by the special inquiry officer in the above-captioned case on February 11, 1957, terminates the proceedings. The examining officer, pursuant to 8 CFR 6.1 (b) (2), appeals from the decision. He urges that as a matter of law respondent is deportable as an alien who was excludable by the law existing at the time of entry, to wit: section 212 (a) (9) of the Immigration and Nationality Act ( 8 U.S.C. 1182 (a) (9)). The respondent has not submitted pleadings in opposition to the memorandum of law prepared by the examining officer.
The respondent, a native and citizen of Mexico, male, unmarried, 52 years of age, last entered the United States through the port of San Ysidro, California, on or about May 9, 1954. He was admitted as a returning resident alien upon presentation of his alien registration receipt card and border-crossing identification card. Respondent was lawfully admitted for permanent residence at Nogales, Arizona, on February 15, 1926.
Respondent's deportation is sought under the provisions of section 241 (a) (1) of the Immigration and Nationality Act ( 8 U.S.C. 1251 (a) (1)) as an alien who was excludable at the time of his entry in 1954 by reason of having been convicted of crimes involving moral turpitude, to wit: the crime of petit theft (violation of section 484, California Penal Code), committed on November 26, 1950, for which he was convicted on December 14, 1950, at Los Angeles, California; the offense of burglary, second degree (violation of section 459, California Penal Code, committed on or about November 14, 1944, for which he was convicted at Los Angeles, California, on January 25, 1945. The record shows that on February 20, 1950, respondent's conviction for the crime of burglary, second degree, was set aside and the cause dismissed under section 1203.4 of the California Penal Code.
Section 1203.4 of the Penal Code of California 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 in his probation papers. The probationer may make such application and change of plea in person or by attorney, or by the probation officer authorized 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." [Emphasis supplied.]
The special inquiry officer concludes that respondent's conviction of burglary, second degree, may not serve as a basis for deportation because the expungement of the record under section 1203.4 of the California Penal Code nullifies the conviction and is the equivalent of a full and unconditional pardon ( Matter of O---- T----, A-4355094, 4 IN Dec. 265 (C.O., Feb. 13, 1951)). He also finds that the subsequent prosecution of respondent for petit theft did not "automatically" revive the burglary offense because as a condition precedent to the operation of the proviso contained in section 1203.4 of the California Penal Code the prior conviction must be pleaded and proved in the subsequent prosecution. There is no showing in the record before us that respondent's prior conviction of burglary, second degree, was pleaded and proved during the prosecution for petit theft.
The special inquiry officer terminated the proceedings on the basis of his conclusion that the remaining offense of "petit theft" is classifiable as a petty offense pursuant to section 4 of the Act of September 3, 1954 (Public Law 770, 83d Cong., 2d sess.). He reasons that since respondent, for immigration purposes, is not considered to have committed the crime of burglary, second degree, because of the expungement referred to above, the only offense involving moral turpitude which respondent may be regarded as having committed is petit theft, a misdemeanor classifiable as a "petty offense." He concludes that the proviso contained in section 4 of the Act of September 3, 1954, is applicable in this instance and respondent was not excludable for this offense at the time of his last entry in May of 1954.
Section 4 of the Act of September 3, 1954 (Public Law 770) states:
"Any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, United States Code, by reason of the punishment actually imposed, or who is excludable as one who admits the commission of such misdemeanor, may hereafter be granted a visa and admitted to the United States, if otherwise admissible: Provided, That the alien has committed only one such offense." [Emphasis supplied.]
The appeal of the examining officer is based upon his contention that the proviso set forth in section 1203.4 of the California Penal Code and that contained in the Act of September 3, 1954 (Public Law 770) render respondent deportable notwithstanding the fact that burglary, second degree, has been expunged from his record and the offense of petty theft is classifiable as a "petty offense." First, we will consider the proviso contained in section 1203.4 of the California Penal Code which reads: "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." [Emphasis supplied.]
We do not subscribe to the Service argument that the proviso here under consideration automatically revives respondent's conviction of burglary, second degree, because under California decisions the original conviction does not have to be pleaded and proved in the subsequent prosecution. The operation of the proviso contained in section 1203.4 was not involved in either the Meyer or Phillips casefn3 since there was no subsequent prosecution for any other offense. The facts in the Hainline and Mojado casesfn3 show that the prior convictions had been pleaded and proved by the prosecution in the subsequent proceeding. The Leach casefn3 concerns an interpretation of section 1203 of the California Penal Code as it relates to the grant or denial of probation. The foregoing cases with the exception of the Leach case were considered by the Service in Matter of O---- T----, A-4355094, 4 IN Dec. 265 (C.O., Feb. 13, 1951), which held that proceedings under section 1203.4, supra, expunged the record of conviction and thereafter the offense may not serve as the basis for an order of deportation.
People v. Hainline, 28 P. (2d) 16; People v. Mojado, 70 P. (2d) 1015 (1937); People v. Leach, 71 P. (2d) 594; Meyer v. Board of Medical Examiners, 206 P. (2d) 1085; In re Phillips, 109 P. (2d) 344.
We next turn to the question of whether the proviso contained in the Act of September 3, 1954, renders respondent deportable, notwithstanding the fact that the conviction for burglary, second degree, has been set aside by section 1203.4 of the California Penal Code. An alien by reason of the waiver contained in section 4 of the Act of September 3, 1954, is not excludable under section 212 (a) (9) of the Immigration and Nationality Act ( 8 U.S.C. 1182 (a) (9)) "because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, United States Code, * * * or who is excludable as one who admits the commission of such misdemeanor * * * Provided, That the alien has committed only one such offense."
See footnote 2 on page 497.
We must decide whether under the circumstances here presented the respondent has committed "only one" or more than one "such offense." The facts of the case show that respondent in 1945 committed burglary, second degree, an offense classifiable as a "petty offense" by reason of the provisions of section 17 of the California Penal Code. The facts also show that respondent on November 26, 1950, committed petty theft, a misdemeanor classifiable as a "petty offense" pursuant to section 490 of the California Penal Code.
Section 461 of the California Penal Code provides that burglary in the second degree is punishable by imprisonment in the county jail not exceeding one year or in the State prison for not less than one year or more than 15 years. Section 17 of the California Penal Code provides in substance that a crime shall be deemed a misdemeanor for all purposes after a judgment other than imprisonment in the State prison. The court on February 20, 1950, during the proceedings under section 1203.4 sentenced the respondent to 6 months in the county jail. Pursuant to Matter of E---- N----, A-6458222, Int. Dec. No. 778, B.I.A., March 23, 1956, burglary, second degree, under these circumstances is classifiable as a petty offense.
Section 490 of the California Penal Code provides: "Petty theft is punishable by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or both."
The relief afforded by section 4 of the Act of September 3, 1954, is available only to aliens who have committed a single petty offense. While it has been held that the expungement of the record under section 1203.4 of the California Penal Code cancels out the conviction and admission of the crime, it has been said that the expunging of the record in California does not completely obliterate the fact that the unlawful acts occurred ( Matter of H----, T-1496858, 6 IN Dec. 619 (B.I.A., May 24, 1955; affirmed by Atty. Gen., Oct. 18, 1955); In re Paoli, 49 F. Supp. 128, 131 (D.C.N.D. Calif., 1943)). The test, as we interpret the language used in the proviso, is not whether the alien has been convicted of more than one misdemeanor classifiable as a petty offense or whether he admits the legal conclusion of having committed more than one such misdemeanor but rather it is whether there is a preponderance of evidence which establishes that the alien has in fact committed more than one misdemeanor classifiable as a petty offense. There is adequate proof of the commission of more than one misdemeanor classifiable as a petty offense in the record before us. We conclude, therefor, that the proviso contained in section 4 of the Act of September 3, 1954, operates to render respondent deportable under section 241 (a) (1) of the Immigration and Nationality Act as an alien excludable at the time of entry under section 212 (a) (9) of the same act ( 8 U.S.C. 1182 (a) (9)). The appeal of the examining officer is sustained. An appropriate order will be entered.
Matter of O---- T----, A-4355094, 4 IN Dec. 265 (C.O., 1951); Matter of E---- V----, 1610-9315, 5 IN Dec. 194 (B.I.A., 1953).
Order: It is ordered that the order entered by the special inquiry officer on February 11, 1957, terminating the above-captioned proceedings be and the same is hereby withdrawn.
It is further ordered that the alien be deported from the United States pursuant to law on the charge set forth in the order to show cause served upon the alien on January 23, 1957.