VARAGIANIS
In a decision dated February 6, 1976, the immigration judge found the respondent deportable as charged, and ordered him deрorted. The respondent has appealed from that decision. In his appeal brief, counsel requests that we remand the record to the immigration judge for consideration of the application of
The respondent is a 26-year-old married male alien who is a native and citizen of Greece. He was admitted to the United States as a permanent resident alien on or about December 26, 1951.
The Order to Show Cause alleged that on February 4, 1974, the respondent was convicted in Rockingham County Superior Court, State
Under
At his hearing, the respondent through counsel admitted to the fact that on February 4, 1974, the respondent pleaded to and was found guilty of the crime of unlawful possession of marihuana (in violation of record of conviction and sentence was “annulled” by a court in New Hampshire, and, thеrefore, that conviction cannot be a basis for deportability under
Certified copies of respondent‘s true bill and abstract of conviction, sentence and ordеr of probation are of record. These documents reveal that on February 4, 1974 the respondent pleaded to and was found guilty of the crime of unlawful possession of marijuana (in violation of
Counsel contended at the hearing that in view of the annulment of respondent‘s record of conviction and sentence by the State court, the respondent is no longer subject to deportation under
In cases 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. See Matter of Robinson, Interim Decision 2351 (BIA 1975); Matter of Wong, 12 I. & N. Dec. 721 (BIA 1968); Matter of A—F—, 8 I. & N. Dec. 429 (BIA, A.G. 1959).
We have consistently found for immigration purposes, that a conviction exists when the following elements are present: (1) there has been a judicial finding of guilt; (2) the court takes action which removes the case from the category of thоse which are (actually or in theory) pending for consideration by the court—the court orders the defendant fined, or incarcerated or the court suspends sentence; (3) the action of the court is
Under
Upon entry of the order, the applicant shall be treated in all respects as if he had never been convicted and sentenced, except that upon conviction of any crime committed after the order of annulment has been entered, the prior conviction may be considered by the court in determining the sentence to be imposed.
The statute further indicates that:
Nothing in this section shall affect any right of the applicant to appeal from his conviction or sentence or to rely on it in bar of any subsequent proceedings for the same offense.
The record of conviction reveals that the respondent plead guilty to and was found guilty of the charge of unlawful possession of marihuana in New Hampshire. The trial court imposed a six-month sentence, but suspended the execution of that sentence and placed the respondent on probation. It does not appear from the record that respondent appealed from that decision. It is clear that under New Hampshire law, notwithstanding an existing court order annulling a record of conviction and sentence, the conviction still stands for various state purposes. Cf. Matter of Rehman, Interim Decision 2448 (BIA 1975). We therefore conclude that the post-conviction annulment order did not have the effect оf vacating respondent‘s conviction. Counsel has not shown that the respondent is no longer subject to deportation. We are satisfied that the record of the criminal proceedings brought against the respondent establishes that he was convicted within the meaning of
We find that the respondent has a record of lawful permanent residence dating back to December 26, 1951. His deportability resulted from a conviction of a marihuana violation. The record shows no evidence that he departed the United States following his conviction.
Although the respondent did not apply for relief under
Under the provisions of
section 212(c) of the Act , a waiver of the ground of inadmissibility mаy be granted to a permanent resident alien in a deportation proceeding regardless of whether he departs the United States following the act or acts which render him deportable . . . [I]t is our position that no distinction shall be made between permanent resident aliens who temporarily proceed abroad and nondeparting permanent resident aliens.
In light of the foregoing opinion, we conclude that the hearing in this matter should be reopened in order to adjudicate the issue of whether the resрondent qualifies for relief under
ORDER: The motion to reopen the proceedings is granted.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion. If discretionary relief is granted by the immigration judge, the outstanding order of deportation shall be withdrawn.