MATTER OF BERKER In Deportation Proceedings A-11780341 Decided by Board August 2, 1976 (1) Under the provisions of the Federal Youth Corrections Act (18 U.S.C. 5005, et seq.), no distinction is drawn between narcotics offenses relating to simple possession of marijuana and narcotics offenses involving more serious drug violations. For that reason, distinctions as to the relative gravity of narcotics offenses should not be made in applying the benefits of the Federal Youth Corrections Act to immigration cases. (2) Expungement of respondent's conviction for conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. 846, under the provisions of the Federal Youth Corrections Act (18 U.S.C. 5021(b)), operated to remove that conviction as a basis for deportation under section 241(a)(11) of the Immigration and Nationality Act. CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]-Convicted of any law relating to illicit possession of marijuana ON BEHALF OF RESPONDENT: A. Kendall Wood, Esquire 3232 Fourth Avenue In a decision dated October 30, 1975, the immigration judge found the respondent deportable as charged and ordered his deportation to Germany. The respondent has appealed from that decision. The appeal will be sustained and the proceedings will be terminated. The respondent, a native and citizen of Germany, was admitted to the United States for permanent residence in 1958. On July 30, 1975 he was convicted in the United States District Court for the Southern District of California of the offense of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. 846 and was sentenced pursuant to the Federal Youth Corrections Act, 18 U.S. C. 5005, et seq. (Hereinafter referred to as "FYCA".) On December 19, 1973 the imposition of sentence was suspended and the respondent was placed on probation. Prior to the expiration of the period of his probation, on August 22, 1975, the court discharged the respondent from probation and set aside the respondent's conviction pursuant to the expungement provisions of FYCA. 18 U.S.C. section 5021(b). The immigration judge found the respondent deportable as an alien who has been convicted of a conspiracy to violate a law relating to the illicit traffic in marijuana under section 241(a)(11) of the Immigration and Nationality Act. Counsel for the respondent, however, contends that under our decision in Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974), the respondent is not deportable. In Zingis we held that the setting aside of a conviction under FYCA eliminates the conviction as a basis for deportation under section 241(a)(11) of the Act. See also Mestre Morera v. INS, 462 F.2d 1030 (1 Cir. 1972). However, from dicta in Matter of Espinoza, 15 I. & N. Dec. 328 (BIA 1975), it is reasonable to infer that our holding in Zingis limits recognition of expungements under FYCA to offenses involving simple possession of marijuana. Inasmuch as the respondent was convicted of the offense of conspiracy to possess marijuana with intent to distribute, the immigration judge held that the expungement does not wipe out the conviction as a basis for deportation under section 241(a)(11). Notwithstanding dicta to the contrary in Espinoza, our holding in Zingis applies to all convictions which have been set aside under the FYCA. In Zingis it is stated that the alien had been convicted of a "narcotics violation," to wit, violation of a law relating to illicit traffic in marijuana. Furthermore, in Zingis we declared that, in enacting FYCA, Congress expressed its objective as the rehabilitation of youthful offenders to enable them to become useful citizens in our society. Under FYCA no distinctions were drawn between the offense of simple possession of marijuana and offenses involving more serious drug violations. In view of the Congressional policy in this area, distinctions should not be made in the application of FYCA benefits in immigration cases. Any language in Espinoza-Rodriguez which suggests a contrary interpretation is hereby disapproved. We note that the interpretation of Zingis set out above is in accord with the most recently stated position of the Service. Accordingly, the appeal will be sustained and the proceedings will be terminated. ORDER: The appeal is sustained; the proceedings are terminated. 1 In Matter of Andrade, 14 I. & N. Dec. 651 (BIA 1974), we accorded like treatment to expungements of state convictions by youths who were sentenced under a state provision similar to FYCA. MATTER OF GUTIERREZ In Section 248 Proceedings A-11877443 Decided by Regional Commissioner August 3, 1976 (1) Operations instruction 214.2(h)(1) provides that "the fact that an applicant for an H-1 visa may be registered for immigration or may file an application for a labor certification is not, of itself, sufficient to sustain a finding that he does not have a residence abroad". This operations instruction pertains only to those cases in which the applicant has established that he is a bona fide nonimmigrant and in which registration for immigration or application for labor certification has been accomplished in the absence of further indications of intent. (2) Applicant herein had obtained a visa preference and labor certification. However, there was an indication in his record that he was in fact an intending immigrant in that he failed to establish that he intended to return to his foreign residence abroad. Under these circumstances OI 214.2(h)(1) was not applicable, and application filed under section 248 of the Immigration and Nationality Act to change nonimmigrant status from that of student to that of temporary worker as defined by section 101(a)(15)(H)(i) of the Act was denied. ON BEHALF OF APPLICANT: Edwin R. Rubin, Esquire Wasserman, Orlow, Kaye & Rubin Sixth and Chestnut Street This matter is before the regional commissioner on appeal from the denial of a request to change nonimmigrant status from student to temporary worker (H-1). The application was denied by the district director on the grounds that the applicant is really an intending immigrant, and that applicant was not maintaining his nonimmigrant student status at the time of filing. The untimely filing has been explained, and the application will be considered as having been timely filed. The issue raised on appeal, therefore, is whether the applicant can qualify as a nonimmigrant. After careful examination of this record, we hold he cannot. The applicant in this case is a twenty-eight year old citizen of Venezuela who originally entered this country as an elementary school student. He was a lawful permanent resident of the United States in the early 1960's, and has received his education here since the age of ten, with an interim leave of absence from the University of Pennsylvania for practical training. Subsequent to his graduation in 1972, he was allowed eighteen additional months practical training on his nonimmigrant student visa. He last entered the United States as a student on December 31, 1973, with an authorized stay until May 30, 1974. Sometimes during this period he obtained an immigrant visa preference and labor certification. On June 19, 1974, the applicant submitted his papers for classification as a nonimmigrant temporary worker. His H-1 classification was eventually issued in May, 1975, valid until July 31, 1975. However, the requested change of status was denied by the district director on June 30, 1975. Although the denial was vacated by the regional commissioner in September, the district director then reviewed the case and denied it again on other grounds November 18, 1975. It is the appeal from the denial which comes before us now. The attorney bases his primary argument on operating instruction 214.2(h)(1), which states in pertinent part: "The Department of State and the Service have agreed that the fact that an applicant for an H-1 visa may be registered for immigration or may file an application for labor certification is not, of itself, sufficient to sustain a finding that he does not have a residence abroad." A comparison between this instruction and the language of section 101(a)(15)(H) of the Immigration and Nationality Act reveals that the phrase of the instruction quoted is only half of the requirement. The language used is "a residence in a foreign country which he has no intention of abandoning." The concession in OI 214.2(h)(1) is designed to enable aliens to come as temporary workers in either of these cases: (a) if the record demonstrates that the alien is a bona fide nonimmigrant entering the United States temporarily, or (b) the record is silent on this point except for the possession of visa preference or a labor certificate. The record in this case does not fall in either category. Applicant in this case is a former permanent resident alien of the United States, citizen of Venezuela, who has been educated in the United States and has been working steadily in this country since he graduated from the University of Pennsylvania. He has not indicated an intent to return to Venezuela, and in fact, although members of his family are still in Venezuela, applicant over the last eighteen years has been linked more closely to the United States than to his own country. The finding that applicant is an intending immigrant is not solely based upon his petition for an immigration visa, and is, therefore, valid. Additionally, the request for the change of status is for the period ending June 30, 1976. Accordingly, the purpose for the request has been accomplished. Since the applicant is not a bona fide nonimmigrant, and since his purpose in any event has been accomplished, this appeal will be dismissed. It is ordered that the appeal be and same is hereby dismissed. MATTER OF YARDEN In Section 245 Proceedings A-20390467 Decided by Regional Commissioner August 6, 1976 In the absence of unusual or outstanding equities, an application for adjustment of status under section 245 of the Immigration and Nationality Act will be denied as a matter of discretion where the labor certification supporting such application, or eligibility for exemption therefrom, was predicated on experience and/or income derived from employment held by applicant in violation of the immigration laws. ON BEHALF OF APPLICANT: David G. Stern, Esquire Choate, Hall & Stewart 28 State Street Boston, Massachusetts 02109 This matter is before the Regional Commissioner on certification pursuant to 8 CFR 103.4. The district director denied the application for adjustment of status under Section 245 of the Immigration and Nationality Act, as amended, on the ground that the alien failed to establish that he is exempt from the requirements of Section 212(a)(14) of the Act; and further, he has not established that his application merits favorable exercise of discretion by the Attorney General. The applicant, a 29 year old-native and citizen of Israel, was admitted to the United States on March 3, 1968, until September 2, 1968, as a nonimmigrant visitor for pleasure. He had neither requested nor received any extension of his authorized stay. In April, 1968, he accepted employment as an insurance salesman. He was subsequently employed as an automobile salesman from August, 1968, to February, 1970. He then accepted employment with the Y & D Auto Body, Inc., a company he purchased October 21, 1970, and which he has managed since that date. He initially applied for adjustment of status under Section 245 of the Act on June 29, 1973, as a nonpreference immigrant claiming exemption from the provisions of Section 212(a)(14) on the basis of his investment in the above-named company. The application was denied September 13, 1973, because a nonpreference visa number was not available at that time. On September 28, 1973, Y & D Auto Body, Inc., made application to the Department of Labor for the certification re |