MATTER OF MUNGUIA In Deportation Proceedings A-13715070 A-20018896 Decided by Board May 5, 1975 Where the Service charged deportability under the provisions of section 241(a)(1) of the Immigration and Nationality Act, predicated on excludability under section 212(a)(20) of the Act, in that respondents did not possess valid immigrant visas at the time of application for admission into the United States, they are not entitled to the benefits of section 241(f) of the Act. The Service is not required to charge deportability under 212(a)(19) of the Act, based on fraud. CHARGE: Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)—Excludable at entry— immigrant not in possession of valid unexpired immigrant visa under section 212(a)(20) (8 U.S.C. 1182 (a)(20)) (both respondents). ON BEHALF OF RESPONDENTS: 582 Market Street, Room 519 San Francisco, California 94104 ON BEHALF OF SERVICE: The respondents have appealed from the August 1, 1974 decisions of an immigration judge ordering their deportation to Mexico. The appeal will be dismissed. The respondents, husband and wife, are natives and citizens of Mexico. The Service alleges that they are deportable under section 241(a)(1) of the Immigration and Nationality Act as aliens who were excludable at entry under section 212(a)(20), because they lacked the proper documents for admission as immigrants. The respondents have conceded the truth of the factual allegations set forth in the orders to show cause. On appeal they challenge the immigration judge's decisions only on the ground that section 241(f) saves them from deportation on the charge alleged by the Service. The record indicates that the male respondent entered the United States under a false claim to United States citizenship. The female respondent appears to have gained admission either under a similar false claim to citizenship or upon presentation of a border crossing card belonging to someone else. Neither respondent has ever been lawfully admitted for permanent residence. We have concluded, on the basis of the Supreme Court's decision in Reid v. INS, 420 U.S. 619, 43 U.S.L. W. 4387 (March 18, 1975), that the respondents are not entitled to the benefits of section 241(f) of the Act. In Reid the Supreme Court held that section 241(f) does not benefit an alien who has entered the United States under a false claim to United States citizenship and who is charged with deportability under section 241(a)(2). In reaching this decision, the Court indicated that except for the circumstances involved in INS v. Errico, 385 U.S. 214 (1966), section 241(f) does not apply to a section 241(a)(1) ground of deportability predicated on any provision of section 212(a) other than subsection (19). The respondents are not charged with deportability via section 212(a)(19); their charge of deportability is predicated on section 212(a)(20). They are not entitled to the benefit of section 241(f). The result reached by the immigration judge was correct. The appeal will be dismissed. ORDER: The appeal is dismissed. Irving A. Appleman, Board Member, concurring opinion. In Reid v. INS, 420 U.S. 619, 43 U.S.L.W. 4387 (March 18, 1975), relied on in this case, the Court was concerned with a charge based on Section 241(a)(2), entry without inspection by false claim of United States citizenship. Here the alien entered by false claim of United States citizenship but the charge is under section 241(a)(1) excludable at time of entry as an immigrant not in possession of an immigrant visa, as required by section 212(a)(20). Reid v. INS, supra, does not purport to overrule INS v. Errico, 385 U.S. 214. Rather, it distinguishes, in that in Errico the charge was based on excludability at the time of entry. Thus the Court in Reid speaks of Errico as ". . . extending the waiver provision of section 241(f) not only to deportation based on excludability under section 212(a)(19), but to a claim of deportability based on fraudulent misrepresentation in order to satisfy the requirements of section 211(a). . . . the provisions of section 241(f) were intended to apply to some misrepresentations that were material to the admission procedure." Reid is not without its ambiguities, and there is a question, which need not be here resolved, whether section 241(f) must be granted in a case which is comparable to Errico under the present law. However, I agree with my fellow members that in the light of Reid, section 241(f) is not available to an alien who has completely frustrated the admission procedure by a false claim of United States citizenship, regardless of the charge used in the case. MATTER OF TUCKER In Deportation Proceedings A-14231434 Decided by Board June 10, 1975 The respondent was convicted upon a plea of guilty, of unlawful possession of marijuana in violation of section 11530 of the California Health and Safety Code. Subsequently, the court set aside that guilty verdict and allowed him to plead guilty to a violation of section 11556 of that Code, sentenced him to 30 days and then terminated probation, pursuant to sections 1203.3 and 1203.4 of the California Penal Code. Section 1203.3 operates to continue the court's jurisdiction insofar as it relates to probation. It does not authorize the court to vacate a conviction. Section 1203.4 only authorizes the court to expunge the record of conviction following the successful completion of probation. It does not authorize the court to accept a guilty plea to a lesser offense. Under these statutes, the court had no authority to permit substitution of the guilty plea to violation of section 11556 of the Health and Safety Code. Furthermore, expungement of a conviction for violation of section 11530 of the California Health and Safety Code pursuant to section 1203.3 and 1203.4 of the California Penal Code, does not operate to remove that conviction as a ground of deportability under section 241(a)(11) of the Immigration and Nationality Act. See Kelly v. Immigration and Naturalization Service, 349 F.2d 473 (C. A. 9, 1965). Therefore, the respondent is deportable as charged. CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]-Marijuana possession, conviction: Violation of section 11530, California Health and Safety Code. ON BEHALF OF RESPONDENT: 228 McAllister Street Timothy H. Power, Esquire San Francisco, California 94102 ON BEHALF OF SERVICE: This is an appeal from a decision of an immigration judge dated October 15, 1973, denying the respondent's motion for reconsideration of the immigration judge's decision of March 2, 1973. The appeal will be dismissed. The respondent was convicted on October 29, 1971 in the California Superior Court for the County of Marin, by verdict of a jury, of unlawful possession of marijuana in violation of section 11530 of the California Health and Safety Code. On March 14, 1972, the court ordered suspension of the imposition of sentence and placed the respondent on probation. On February 22, 1973, the Superior Court granted the respondent a release pursuant to section 1203.4 of the California Penal Code; set aside the guilty verdict under section 11530 of the California Health and Safety Code; allowed the respondent to plead guilty to a lesser included offense of violation of section 11556 of the Health and Safety Code; sentenced him to serve 30 days in the County Jail with credit for 30 days served; and terminated probation. Section 241(a)(11) of the Act concerns itself with a conviction of an offense relating to illicit possession of or traffic in narcotic drugs or marijuana. Federal courts have generally taken the view that a plea of guilty or a finding of guilty, which is in repose and remains undisturbed, amounts to a conviction. See Kercheval v. United States, 274 U.S. 200 (1927). Here there was a verdict of guilty. In Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959), the court held that a conviction in California followed by a suspended sentence and placement on probation remains a "conviction" within the Immigration and Nationality Act. In fact, section 1237 of the California Penal Code provides that an order granting probation "shall be deemed to be a final judgment" for the purpose of appeal. The respondent's conviction of unlawful possession of marijuana under section 11530 of the California Health and Safety Code is sufficient to sustain a finding of deportability under section 241(a)(11). See Gutierrez v. INS, 323 F.2d 593 (C.A. 9, 1963), cert. denied 377 U.S. 910 (1964). In Matter of Kelly, 10 I. & N. Dec. 526 (BIA 1964), relying on the Attorney General's ruling in Matter of A-F—, 8 I. & N. Dec. 429 (A.G. 1959), we held that a finding of deportability under section 241(a)(11) of the Act based upon conviction for unlawful possession of marijuana in violation of section 11530 of the California Health and Safety Code is not affected by the expungement or erasure of the conviction record as authorized by sections 1203.3 and 1203.4 of the Penal Code of California. Our positions in Matter of Kelly, supra, was affirmed in Kelly v. INS, 349 F.2d 473 (C.A. 9), cert. denied 389 U.S. 932 (1965). The Attorney General's ruling in Matter of A—F—, supra, has been sustained by the courts. See Garcia-Gonzales v. INS, 344 F.2d 804 (C.A. 9), cert. denied 382 U.S. 840 (1965); Kelly v. INS, supra; Brownrigg v. INS, 356 F.2d 877 (C.A. 9, 1966); Cruz-Martinez v. INS, 404 F.2d 1198 (C.A. 9, 1968), cert. denied 394 U.S. 955 (1969); Gonzales de Lara v. United States, 439 F.2d 1316 (C.A. 5, 1971); Matter of Andrade, 14 I. & N. Dec. 364 (BIA 1973). In allowing the respondent to plead guilty to violation to section 11556 of the California Health and Safety Code, the court describes it as a "plea to a lesser included offense." In People v. Perez, 33 Cal. Rptr. 398, 219 C.A.2d 760 (1963), the court held that in determining whether there has been a violation of section 11556, there must be proof that narcotics "are being unlawfully smoked or used. . . with knowledge that such activity is occurring" at the time of the visitation or presence. The court in People v. Wilson, 76 Cal. Rptr. 195, 271 C.A.2d 60 (1969), held that the offense defined by section 11556 is not included in the offense defined by section 11530 of the Health and Safety Code, which forbids possession of marijuana. Modification by vacating a finding of guilt and reduction to a lesser included offense is specifically provided for in section 1181(6) of the California Penal Code without requiring an order for a new trial. Even assuming that section 11556 could be considered a lesser included offense, the procedure under Penal Code section 1181(6) would have been the procedure which should have been followed. Section 1203.3 of the California Penal Code continues the jurisdiction of the court over the convicted person only so far as conditions of probation and matters relating to probation are concerned. The section does not authorize vacating a conviction. It provides that the court shall have authority to revoke or modify probation "at any time during the term of probation," Matter of Sirhan, et al., 13 I. & N. Dec. 592 (BIA 1970); In re Griffin, 62 Cal. Rptr. 1, 431 P.2d 625 (1967); Fayad v. Superior Court, 153 C.A.2d 406, 313 P.2d 669 (1957); In re Scarborough, 173 P.2d 825 (C.A. Cal. 1946). The question before us is whether section 1203.4 of the California Penal Code, in addition to authorizing expungement of the conviction under section 11530 of the Health and Safety Code, confers on the court the jurisdiction to substitute therefor a plea of guilty to another offense of the same Code, section 11556. In this case, if the court had the power of substitution, the respondent's conviction of a deportable offense within the meaning of section 241(a)(11) of the Act. See Matter of Schunck, 14 I. & N. Dec. 101 (BIA 1972). If the court did not have the power, then as heretofore explained the respondent is not relieved from the finding of deportability under section 241(a)(11) based upon his conviction of violation of section 11530. Section 1203.4 of the California Penal Code creates a statutory procedure by which convictions are technically expunged as a matter of course as a reward for those who have successfully completed probation. See Matter of A—F—, supra, People v. Johnson, 134 C.A.2d 140, 285 P.2d 74 (1955). A careful analysis of this section clearly shows that the only power given to the court after termination of probation is to set aside a verdict of guilty and expunge the conviction for the limited objective set forth in the section. The section specifically states the limits of the court's power as follows: ". . .; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. (Emphasis supplied.) California criminal courts have statutory and inherent powers to modify orders. Section 1203.3 of the Penal Code involves only matters |