parties to the marriage. There, the husband formally renounced or terminated the marriage before both families which had been called together for that purpose." S. N. Chinwuba Obi, whose book on Nigerian family law is cited by the court in the Okpanum case, provides information on the details of the formalities required to bring an Ibo customary marriage to an end.8 In rejecting the idea that a woman is free to abandon her husband and marry another man without divorce formalities, Obi comments as follows: Contrary to popular opinion in certain quarters, customary marriage is not dissolved by the mere fact that one spouse has left, or been sent away by the other with the express intention of never again living together with him or her as husband and wife. Where this happens, there is no more than desertion or voluntary separation as the case may be: the parties remain husband and wife in the eyes of the law nonetheless." Commentators have expressed the difficulties surrounding proof of a non-judicial divorce as follows: It is necessary to determine the acts necessary under the applicable customary law which will sever the marital bonds and the point at which the marriage is terminated. Then, too, it may be difficult to decide whether these acts were actually performed and what the intentions of the parties were at the time. 10 For a foreign agency or tribunal to decide the issue of the validity of a divorce in these circumstances it would have to determine (1) the ethnic group or tribe of the parties, (2) the current customary divorce law of that group, and (3) proof of the facts alleged. These are the issues which the local Nigerian courts, on the other hand, are uniquely equipped to determine. For purposes of its use abroad, a judgment of a Nigerian court should be certified as a true copy by the court and, in turn, by the United States embassy or consulate as being the judgment of the court. MATTER OF MOELLER In Deportation Proceedings A-12371591 Decided by Board December 16, 1976 (1) Respondent, a 35-year-old native of Germany who was admitted for permanent residence in 1962 was convicted in 1974 for the felonious possession of marihuana. Respondent contended on appeal that the destruction of his record of conviction under section 11361.5 of the Health and Safety Code of California made him not amenable to deportation under section 241(a)(11) of the Immigration and Nationality Act. (2) Where the marijuana or narcotics conviction is not under the Federal Youth Corrections Act or its State equivalent, unconditional pardons, erasures of criminal records, expungements and annulments of records of convictions do not affect deportability under section 241(a)(11) of the Act. Similarly, destruction of records of conviction pursuant to a statute designed to benefit the convicted population at large (instead of just the youthful offender) has no effect on deportability under section 241(a)(11). Matter of Lima, Interim Decision 2490 distinguished. (3) Since respondent has a record of lawful admission for permanent residence dating back to 1962, and there is no record that he departed the United States following his marihuana conviction, the record will be remanded to the immigration judge to permit respondent in deportation proceedings to file an application for a waiver of the instant ground of deportability under section 212(c) of the Act. CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]-Convicted of violation relating to illicit possession of marihuana ON BEHALF OF RESPONDENT: Terence Hallinan, Esquire 819 Eddy Street San Francisco, California 94109 ON BEHALF OF SERVICE: Philip P. Leadbetter BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members The respondent appeals from a decision of an immigration judge dated April 19, 1976 where he was found deportable as charged and his deportation to Germany was ordered. The record will be remanded for further proceedings. The respondent is a 35-year-old native of Germany who was admitted for lawful permanent residence on February 12, 1962, at New York City. On December 20, 1974, the respondent was convicted in the Superior Court of the State of California of the felonious possession of marihuana. The respondent contends on appeal that the destruction of the record of conviction pursuant to section 11361.5 of the Health and Safety Code of California makes him not amenable to deportation under section 241(a)(11) of the Immigration and Nationality Act. The respondent's contention is rejected. 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. Matter of Varagianis, Interim Decision 2537 (BIA October 15, 1976). We have held that as far as narcotics and marihuana violations are concerned, when the conviction is not under the Federal Youth Corrections Act or its State equivalent, unconditional pardons, erasures of criminal records, expungements and annulments of records of convictions do not affect deportability under section 241(a)(11) of the Act. See Matter of Varagianis, supra; Matter of Espinoza, Interim Decision 2391 (BIA 1975); Matter of Lindner, Interim Decision 2341 (BIA 1975). We see no reason why the destruction of records should be treated differently. Deportation is a function of Federal and not State law. It would be anomalous for a Federal action based on a State conviction to be controlled by how the State chooses to subsequently treat the event. Cruz-Martinez v. INS, 404 F.2d 1198 (9 Cir. 1969).1 The present case is distinguishable from Matter of Lima, Interim Decision 2490 (BIA 1976). There, the court records were sealed under a statute having objectives similar to the ones expressed by Congress when it approved the Federal Youth Corrections Act. Here, the statute under which the destruction of the records is ordered is not intended to benefit youthful offenders by provisions designed to eliminate or ameliorate the lifelong stigma that may result from a conviction. This statute is directed to benefit the convicted population at large. The record discloses that the respondent has a record of lawful permanent residence dating back to 1962. His deportability resulted from a marihuana violation. The record shows no evidence that he departed from the United States following his conviction. Since the appeal was filed by the respondent, we have decided that relief under section 212(c) of the Act is available to a lawful permanent resident alien in deportation proceedings even if there is no subsequent entry after the ground of deportability arises. See Matter of SilvaOvalle, Interim Decision 2532 (BIA September 10, 1976). Therefore, we We are aware of Rehman v. INS, 544 F.2d 71, Civ. No. 76-4022 (2 Cir. October 14, 1976). However, that decision is not controlling in this case. shall remand the record so as to allow the respondent an opportunity to file an application for relief under section 212(c) of the Act. We make no intimation as to the merits of such an application. ORDER: The record is remanded for further proceedings and the entry of a new decision. MATTER OF VIVAS In Deportation Proceedings A-34580254 Decided by Board December 17, 1977 (1) While the Service has the burden of proof to establish deportability by clear, convincing and unequivocal evidence, a respondent in deportation proceedings may be required to go forward with the evidence when the Service has made prima facie case and respondent has better control or knowledge of the evidence (in this instance, the proper identity of his alleged United States citizen wife). (2) Respondent's deportability as an alien excludable at entry under section 212(a)(14) of the Immigration and Nationality Act for lack of a valid labor certification is established by clear, convincing and unequivocal evidence where the record shows that he was permanently employed in the United States at the time he applied for a visa, and where the Service established that respondent was not married to the person whose birth certificate was used to establish exemption from the labor certification requirement and respondent did not go forward with evidence to establish the true identity of the person to whom he claimed to have been married at the time he entered the United States. (3) Where consul's knowledge of the true facts would have required a finding that the applicant was ineligible to receive a visa, concealment of those facts from the consul results in procurement of a visa which is not valid, and the alien is excludable under section 212(a)(20) of the Act. Neither fraud nor wilfulness is an element in this determination, and neither is necessary to establish a charge under section 212(a)(20) of the Act. CHARGE: Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)}-Excludable at entry-no valid labor certification Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry-no valid immigration visa ON BEHALF OF RESPONDENT: Michael B. Cohen, Esquire 221 N. LaSalle Street BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members The respondent appeals from an immigration judge's decision dated August 9, 1976. In this decision the respondent was found deportable under section 241(a)(1) of the Immigration and Nationality Act as excludable at entry under section 212(a)(14) and section 212(a)(20) of the |