ESPINOZA
Case Information
*2 MATTER OF ESPINOZA In Deportation Proceedings A-10846768 Decided by Board June 2, Where respondent was an adult, at the time of commission of the crime, and plead guilty in a state court in Arizona to the charge of possession of marijuana for sale, the subsequent expungement of the conviction under Arizona Revised Statute section 13-1744 did not foreclose deportation. The appeal, from the deportation order entered pursuant to section 241(a)(1.1) of the Immigration and Nationality Act, is dismissed. CHARGE:
Order Aet of 1952—Section 241(aX11) [SILS_C 1251(a)(11))—Convieted of violation of law relating to control of marijuana. ON BEHALF OF RESPONDENT ON BEHALF OF SERVICE John A. Tull, 3squire William E. Weinert, Esquire Trial Attorney Legal Aid Soc:ety 55 West Congress Street Tucson, Arizona 83701
This appeal is from an order of deportation entered by the immigra-
tion judge on December 4, 1972. The appeal will be dismissed.
The record relates to a married male alien, 52 years of age, a native
and citizen of Mexico, who
was
lawfully admitted to the United States
for permanent residence on August 28,1956, in possession of an immi-
grant visa. On Decmeber 7, 1970, a judgment suspending sentence was
entered in the Arizona State Superior Court for the County of Santa
Cruz, which recited that the respondent, on the basis of having pled
guilty, had been convicted of the crime of illegal possession of marijuana
for sale. The respondent moved in the courts of Arizona to withdraw the
plea, on the ground that he had not known that his plea would render
him susceptible to deportation. The Superior Court denied his motion to
set aside the conviction on that ground, but did permit withdrawal of the
plea, entry of a plea of not guilty, and dismissal of the information,
pursuant to Arizona Revised Statutes, Section 13-1744 (the general
expungement provisions).
The respondent acknowledges awareness of the precedents which
have held that expungements of state convictions relating to narcotics
*3
and marijuana have been held not to foreclose deportation,
Kelly v.
INS,
This Board adopted the rule ofMestre-Morera in Matter of Zingis, 14 I. & N. Dec. 621 (WA_ 1974). That rule, however, is not applicable to the respondent's case. Mestre-Morera was convicted of an offense involving simple possession of marijuana; he was sentenced under the Federal Youth Corrections Act, pursuant to which the sentence was set aside. We held that the setting aside of the conviction removed it as a basis for deportation. In Matter of Andrade, 14 I. & N. Dec. 651 (BIA 1974), we decided to accord like treatment to expungements of state convictions involving simple possession of marijuana by youths who were sentenced under a state provision similar to the Federal Youth Corrections Act, upon the recommendation of the Solicitor General.' Andrade, like Zingis and Mestre-Morera, was a youth offender who was convicted of an offense involving simple possession of marijuana. Andrade was sen- tenced under the Youth Offender Authority of the California Welfare and Institutions Code. The respondent's case is unlike the situation in Andrade. The respon-
dent was 47 years of age at the time of his conviction. Inasmuch as he was not a youth, he could not have obtained expungement under the Federal Youth Corrections Act had he been subjected to Federal pro- secution. Furthermore, his conviction did not involve simple possession of marijuana, but rather possession of marijuana for sale.*
The respondent contends, further, that his conviction lacks finality, because he is contemplating appeal to the United States Supreme Court from the denial by the Arizona Superior Court of his motion to withdraw the plea of guilty. We find the respondent's contention to be lacking in merit. A conviction is final upon a plea of guilty, Matter of Robinson, I. & N. Dee. 197 (BIA March 5, 1975). In the respondent's case, in addition to a plea of guilty, there was a judgement entered by the court accepting the plea and finding that the respondent was guilty of the offense (Exh. 3). The respondent's conviction is clearly final. The Solicitor General, in a memorandum printed in Andrade, supra, cited a softening of a congresssional policy towards persons convicted of simple possession of marijuana. The memorandum recommended "not requiring deportation on the basis of a state marijuana conviction of a youth offender which has been expunged or set aside pursuant to a law comparable to the Federal Youth Corrections Act if the youth offender upon ennvietion could have obtained expungement under the federal law if he had been sub- jected to federal prosecution." * See Matter of Berker, 15 I. & N. Dec. 725.
Finally, the respondent raises the argument that the conviction was
invalid because
he
was not informed that deportation would be a conse-
quence thereof. This contention has been made in other eases and has
been rejected,
Matter of Marin,
13 I. & N. Dec. 497 (BIA 1979);
Merin
v. INS,
438 ]?.2d 932 (C.A. 9, 1971);
Joseph v. Esperdy,
267 F. Supp.
492 (S.D. N.Y. 1966);
U.S. ex rel. Durantev.Holton,
For the above reasons, we shall dismiss the respondent's appeal. ORDER: The appeal is dismissed.