alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. In October of 1972, an earlier visa petition classifying the beneficiary as the spouse of a United States citizen was approved. Approval of that petition was revoked in March of 1973 pursuant to a request by the earlier petitioner that the petition be withdrawn. At that time both the beneficiary and the earlier petitioner signed statements indicating that their marriage was entered into for the purpose of according immigration benefits to the beneficiary. The District Director relied on the beneficiary's earlier classification as the spouse of a United States citizen in determining that section. 204(c) prohibits the approval of the present petition. The beneficiary, however, was not issued a visa or granted adjustment of status on the basis of that earlier petition. An alien who merely has been classified as the spouse of a United States citizen has not been "accorded a nonquota or preference status," as that phrase of section 204(c) has been interpreted. Amarante v. Rosenberg, 326 F.2d 58 (C.A. 9, 1964); Matter of Piscotta, 10 I. & N. Dec. 685 (BIA 1964). Accordingly, the beneficiary does not fall within the prohibition of that section. The district director's decision revoking approval of the visa petition was incorrect. The record indicates that the district director was aware of the case law regarding section 204(c) prior to the forwarding of the record on appeal. While it may be that the decision to commence the proceeding to revoke approval of this visa petition was made without an appreciation of the case law, it is clear that the district director, or persons acting in his behalf, desired to challenge that case law. The manner in which that challenge was raised, however, presents some serious problems. Pursuant to 8 CFR 3.1(g), our precedent decisions are binding on the Service in all proceedings involving the same issue or issues. This regulation does not entirely foreclose the Service from attacking case law it deems erroneous. However, the Service is bound by the regulation and any such attack should be done in a manner which affords adequate protection to the interests of the person or persons affected. In this case, the district director could easily have instituted the proceeding to revoke approval of the visa petition, then have made a finding in favor of the petitioner on the basis of Matter of Pisciotta, supra, and then have certified the record to us with a statement as to why that case should be overruled or modified. Such a sequence of events would assure our review of the record. We would be enlightened regarding problems in the application of a Board decision, and the protection of an individual's interests would not depend upon the accident of an appeal. ORDER: The appeal is sustained and the approval of the visa petition is reinstated. Further order: The record is remanded to the district director for further action consistent with this opinion. MATTER OF ROBINSON In Deportation Proceedings A-11785088 On Appeal From the Immigration Judge's Order; Respondent pleaded guilty to violating sections 11501 and 11500.5 of the Health and Safety Code of California, relating to the unlawful possession and sale of heroin. This guilty plea is a conviction within the meaning of section 241(a)(11) of the Immigration and Nationality Act, and renders respondent deportable. This is so notwithstanding that action in the criminal proceeding was superseded prior to rendering of the final judgment in order that proceedings could be commenced against respondent under the California Involuntary Narcotic Commitment Statute (Sec. 3051, California Welfare and Institutions Code). CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]-Convicted of a violation of law relating to narcotics. ON BEHALF OF RESPONDENT: Arthur E. Lester, Esquire 4075 Main Street Riverside, California 92501 BEFORE THE IMMIGRATION JUDGE ORAL DECISION OF THE IMMIGRATION JUDGE This matter was remanded by the Board of Immigration Appeals on October 5, 1973 to afford the parties an opportunity to include in the record the Order of Civil Commitment to a narcotics rehabilitation center and to bring out what the present status of the respondent's case is under the California Code. Respondent had argued that although she has entered a plea of guilty to two counts of willfully and unlawfully selling, furnishing and giving away a narcotic, to wit, heroin, in violation of Section 11501 of the Health and Safety Code of California and one count of violation of Section 11500.5 of the Health and Safety Code (possession for sale, a narcotic, to wit, heroin), she was not convicted for immigration purposes since her criminal case was suspended by the Trial Judge and proceedings were commenced under the California Involuntary Narcotic Commitment Statute, California Welfare and Institutions Code, Section 3051. Respondent argued that because of the Institutions Code, further criminal action in her case was suspended and she was not in the position to file an appeal from the conviction since there will be no judgment to appeal from until she is returned to the criminal Courts for final sentencing. The respondent's Counsel cited Verdugo v. Nelson, 310 F. Supp. 377 (1969) in support of his position. In Verdugo, the petitioner was convicted and after the conviction the criminal matter was suspended for civil commitment under the California Involuntary Narcotic Commitment Statute. As pointed out by Judge Greenwald in his previous decision, a plea of guilty is a conviction within the meaning of Section 241(a)(11) of the Immigration and Nationality Act. In the interest of the uniform application of the Federal Statutes, the meaning of the word convicted is a Federal question and requires a uniform application. Wills v. I.N.S., (C.A. 7,) 447 F.2d 529. At times the word "convicted" has various meanings and that "sometimes the exhaustion or waiver of appeal rights has been found necessary to the existence of a conviction," supra. In considering whether there has been a final conviction under California Health and Safety Code 11530 of an alien who was committed under California Welfare and Institutions Code 3051, the United States Court of Appeals sustained the Board of Immigration Appeals upholding a finding of deportability. Dunn-Marin vs. District Director, 426 F.2d 894, (C.A. 9, 1970). The same Circuit in GruzMartinez v. Immigration and Naturalization Service 404 F.2d 1198, Cert. denied. 394 U.S. 955, made the following statement, "deportation is a function of Federal and not state law. In the context of a narcotics conviction, deportation is a punishment independent from any that may or may not be imposed by the State. While it is true that the same event, the state conviction, triggers both sets of consequences; it would be anomalous for federal action based on a State conviction to be controlled by how the State chooses to subsequently treat the event. It is the fact of State conviction, not the manner of State punishment for that conviction, that is crucial". The conviction of the respondent occurred when she entered her plea of guilty to three counts of violating the narcotic laws of California. I am satisfied that deportability has been established by clear, convincing and unequivocal evidence. ORDER: IT IS ORDERED that the respondent be deported from the United States to the Netherlands on the charge contained in the order to show cause. BEFORE THE BOARD (March 5, 1975) This is an appeal from an order of an immigration judge finding the respondent deportable on the above charge and directing her deportation to the Netherlands. The appeal will be dismissed. Our review of the entire record satisfies us that the decision of the immigration judge correctly sets forth the facts and properly applies the pertinent legal principles. We concur in his conclusion that DunnMartin v. District Director, 426 F.2d 894 (C.A. 9, 1970) is dispositive of the issue which the respondent presents on appeal, and requires a finding that her conviction is final with regard to deportability under section 241(a)(11) of the Immigration and Nationality Act. We find Will v. INS, 447 F.2d 529 (C.A. 7, 1971), cited by counsel in support of this appeal, to be distinguishable. Accordingly, we conclude that the decision of the immigration judge contained no error, and it will be affirmed. The following order will therefore be entered. ORDER: The appeal is dismissed. |