HADDAD
(2) Section 18.1070(47), Michigan Statutes Annotated, is a first offender statute. It is a state counterpart to
EXCLUDABLE:
Act of 1952—Section 212(a)(23) [
In a decision dated August 25, 1976, an immigration judge found the applicant inadmissible under section 212(a)(23) of the Immigration and Nationality Act. The applicant has appealed. The appeal will be sustained.
The applicant, a native and citizen of Jordan, was admitted to the United States for permanent residence in 1971. On November 18, 1974, he was found guilty of possession of marihuana, a violation of Section 18.1070(41(4)(d)), Michigаn Statutes Annotated, in the District Court of the 87th Judicial District of the State of Michigan. He was sentenced to
In January of 1975, the applicant returned to Jordan to visit his ailing mother. Upon his return to this country on May 13, 1975, he was paroled into the United States to await exclusion proceedings. Before a hearing was held on his admissibility, the applicant moved the District Court judge in Michigan who had sentenced him on the marihuana charge to dismiss the proceedings and to discharge him pursuant to Michigan Stаtutes Annotated Section 18.1070(47). (See Appendix A.) An order granting the motion was issued on November 25, 1975.
The issue argued below and raised again on apрeal is whether the applicant is excludable under section 212(a)(23) of the Immigration and Nationality Act in light of the action taken by the Michigan court under Michigan Statutes Annotated Section 18.1070(47).
In a recent interim decision, Matter of Werk, Interim Decision 2589 (BIA, May 26, 1977), we held that a conviction which has been expunged under a state counterpart to
From the text of section 18.1070(47) of the Michigan Statutes Annotated, we have concluded that the respоndent‘s conviction was expunged under a statute which is a state counterpart to
ORDER: The appeal is sustained and the applicant‘s admission as a returning resident is authorized.
APPENDIX A
Probation, no previous related convictions; violation of conditions; discharge and dismissal; effect; limitаtion; nonpublic record, purpose; rehabilitation program; fee
Sec. 47. (1) When any person who has not previously been convictеd of any offense under this act or under any statute of the United States or of any state relating to narcotic drugs, coca leaves, marihuana, or stimulant, depressant or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under subsection (4) of sеction 41 or of use of a controlled substance under subsection (5) of section 41, the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. Upon violation of a term or сondition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge
APPENDIX B
If any person who has not previously been convictеd of violating subsection (a) of this section, any other provision of this subchapter or subchapter II of this chapter, or any other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, is found guilty of violation of subsection (a) of this section aftеr trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and рlace him on probation upon such reasonable conditions as it may require and for such period, not to exceed one year, as the court may prescribe. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against such person and discharge him from probation before the expiration of the maximum period prescribed for such person‘s probation. If during the period of his probation such person does not violate any of the conditions of the probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this subsection shall be without court adjudication of guilt, but a nonpublic record thereof shall be retained by the Department of Justice solely for the purpose of use by the courts in determining whether or not, in subsequent proсeedings, such person qualifies under this subsection. Such discharge or dismissal shall not be deemed a conviction for purposes of disqualificatiоns or disabilities imposed by law upon conviction of a crime (including the penalties prescribed under this part for second or subsequent convictions) or for any other purpose. Discharge and dismissal under this section may occur only once with respect to any person.