was convicted and sentenced on June 22, 1967. The order was entered in the minutes in the same month. The court vacated the conviction and certified the case to the juvenile court in February 1968. Since the modifying orders in both cases came after the original judgments were entered in the minutes, it would follow that the courts could not look to the short-lived power as authority for the modifications.1 The continuing inherent power to modify an order is exercised through the writ of coram nobis. The writ lies to vacate or correct a judgment where no other remedy exists. It is granted when a petitioner shows that, through no fault of his, a fact was not presented at the trial, that presentation of the fact would have prevented the rendition of the judgment, that the fact does not go to the merits of the issues tried, and that he could not, in the exercise of due diligence, have discovered the fact at any time substantially earlier than the time of his motion for the writ, People v. Shipman, 397 P.2d 933, 42 Cal. Rptr. 1 (1965). The petition for the writ need not take any particular form. See People v. Hamlin, 152 Cal. App. 2d 112, 312 P.2d 306 (Ct. App. 1957). It may be made orally, People v. Curtis, 104 Cal. App. 2d 219, 230, P. 2d 877 (1951); People v. Sandoval, 254 P. 893 (Cal., 1927). Contra, In Re Dyer, 85 Cal. App. 2d 394, 402, 193 P. 2d 69, 74 (1948). We believe that it will be more fruitful to discuss the issues in terms of a specific court case rather than in terms of general rules. One Armendariz was convicted in May 1964 for a narcotic violation. The trial judge wanted to commit him to a rehabilitation program, but erroneously concluded that he could not ask the district attorney to declare the case an unusual one-a declaration which might have made Armendariz eligible for rehabilitation. The court sentenced Armendariz to imprisonment. He was apparently committed. In March 1966, he filed a petition for a writ of coram nobis in the trial court. The court denied the writ, apparently in part, because it was mistaken on the same legal point. On appeal, the trial court was reversed and given another 1 In several unreported decisions, we had raised a question as to whether the limitation on modifications under the short-lived power might apply only to modifications that increased punishment. We now conclude that the limitation applies even if the modification decreases punishment. Thus, where after the entry of an order in the minutes, a court issued a corrected judgment beneficial to defendant in that it changed a term of imprisonment from a consecutive to a concurrent one, the corrected judgment was set aside because the issuance after the entry of the original sentence in the minutes was without authority, In re Wimbs, 421 P.2d 70, 55 Cal. Rptr. 222 (1966). opportunity to consider the advisability of starting a proceeding to commit Armendariz to the rehabilitation program, People v. Armendariz, 60 Cal. Rptr. 796 (Ct. App., 1967). See also In re Rascon, 413 P.2d 678, 50 Cal. Rptr. 790 (1966). While Armendariz is not on all fours with the cases before us, we see certain similarities. In Armendariz, the court acted without knowledge that it could have entered an order which would have saved Armendariz from imprisonment-a punishment the court did not want to inflict. The appellate court held that the trial court had the power to correct this omission. In the instant cases, the courses acted without knowledge that they could have entered an order which would have saved the respondents from deportation—a disability stemming from the punishment inflicted and not intended by the courts. It appears to us that the power to correct this omission existed. See Joseph v. Esperdy, supra. The existence of a case such as Armendariz and the Service failure to present precedents which affirmatively establish that the courts here were without authority require us to conclude that the Service failed to carry its burden in the collateral attack on the modifying orders in Sirhan and Rodriguez. One further comment is required before we leave this subject. In Talavera, the Service presented a letter dated December 2, 1966 from the judge who modified his original order. He stated that he would not have imposed the original sentence had he known it might have resulted in an order of deportation, that making respondent subject to deportation was a penalty greater than was intended, that the modification was an attempt to alleviate the conditions of the original sentence, and that he now believes that he had no authority to enter the modification. The Service relies upon this letter as support for its position in the three cases before us. The letter is entitled to respectful consideration, but we do not regard it as substantial evidence that the superior courts in Sirhan and Rodriguez lacked jurisdiction to vacate their orders. Letters to similar effect were not presented in these cases which are under the administrative jurisdiction of the same District Director who submitted the letter in Talavera. The letter cites no authority. The court has not vacated the order in question. Because our concern is with the convictions which were the basis for the issuance of the orders to show cause, we need not discuss statutory provisions relating to acquisition of jurisdiction by the juvenile court. EFFECT OF THE ORIGINAL CONVICTIONS UNDER THE We come now to the third question in Sirhan and Rodriguez. Did the subsequent orders of the courts remove the aliens' liability to deportation? The Service contends that because the orders were allegedly made for this very purpose, to give them such an interpretation would circumvent federal laws controlling the deportation of aliens. A similar contention was vigorously advanced by the Service in Matter of O'Sullivan, supra. It was rejected by the Board. We find no need to add to the discussion there. See Joseph v. Esperdy, supra. We do point out that while the inference can be drawn that the courts here were motivated by a desire to remove the aliens from liability to deportation, it is possible that other considerations entered into their deliberations. Pointing to the fact that a conviction (the finding of guilt) exists independently of a sentence (the imposition of punishment), the Service representative contends that the vacating of a sentence has no effect on the existence of the conviction and permits the conviction, where it is for a narcotic offense, to support an order of deportation under section 241(a) (11) of the Act. It is sufficient answer to say that in Sirhan and Rodriguez, where narcotic violations occurred, the courts vacated the convictions; no convictions exist. The appellate trial attorney contends that the courts' actions in vacating the convictions in Sirhan and Rodriguez are unconstitutional because the actions subject the aliens to double jeopardy. The contention must be dismissed. An accused in a criminal case who is instrumental in having a conviction vacated may be tried again on the same, or another indictment, for the very offense of which he was convicted without violaing the provision against double jeopardy, People v. Stratton, 28 P.2d 695 (Ct. App., Cal., 1934). This is so even if the accused has served time under his sentence, U.S. ex rel. Jones v. Nash, 264 F.2d 610 (8 Cir., 1959), cert. denied 360 U.S. 936. Moreover, since the proceedings were remanded to the juvenile courts, which are not criminal courts, the doctrine of double jeopardy does not apply, People v. Silverstein, 262 P.2d 656 (Cal., 1953). Cases dealing with expungements cited by the Service in Sirhan and Rodriguez; e.g., Garcia-Gonzales v. INS, 344 F.2d 804 (9 Cir., 1965), cert. denied 382 U.S. 840, are inapposite. Expungement is a State rehabilitation process which removes most of the disabilities imposed by the State on a convicted person. In Sirhan and Rodriguez, no convictions exist. Since neither a pardon nor recommendations against deportation are involved in the instant cases, we shall not discuss the cases concerning these matters which are cited by the Service. Other cases cited by the Service; e.g., Guiterrez v. INS, 323 F.2d 593 (9 Cir., 1963), cert. denied 377 U.S. 910 (dictum) contain statements that a federal standard exists as to what constitutes a conviction. We agree with this. We have attempted to define such a standard, Matter of O—, 7 I. & N. Dec. 539 (BIA, 1957). There is, however, no authority holding that a conviction exists where there is no finding by a criminal court that a person is guilty of a crime. On the contrary, when a court acts within its jurisdiction and vacates an original judgment of conviction, its action must be respected, Sakow v. INS, 314 F.2d 34 (3 Cir., 1963); United States v. Shapiro, 222 F.2d 836 (7 Cir., 1955), interpreted in Matter of S-, 9 I. & N. Dec. 678 (BIA, 1962). See Pino v. Landon, 349 U.S. 901 (1955). ORDERS: (1) No change is made in the special inquiry officers' orders in Sirhan and Rodriguez; (2) No change is made in the special inquiry officer's order in Talavera. The basis for termination of deportation proceedings is the fact that the conviction on which proceedings were instituted was expunged. MATTER OF BOCRIS In Visa Petition Proceedings NYC-N-29669 Decided by Regional Commissioner June 26, 1970 An alien beneficiary who, immediately preceding the filing of the visa petition, has been employed for more than one year abroad as an executive of the petitioner's French affiliate, and whose transfer to the United States is being sought for employment as an executive on a temporary basis, is eligible for classification as a nonimmigrant intra-company transferee under section 101(a) (15) (L) of the Immigration and Nationality Act, as amended, notwithstanding he is the beneficiary of an approved sixth preference visa petition. ON BEHALF OF PETITIONER: Elmer Fried, Esquire 515 Madison Avenue New York, New York 10022 This matter is before the Regional Commissioner on appeal from the denial of the petition to classify the beneficiary as a nonimmigrant intra-company transferee under section 101 (a) (15) (L) of the Immigration and Nationality Act, as amended. Although oral argument was requested in this case, in view of the decision which follows, the grant of such privilege will not be necessary. The petitioning firm, which is engaged in worldwide marketing and manufacture of consumer and industrial products, seeks to transfer the beneficiary to its New York office to assume the position of Manager of Marketing for Far Eastern Operations. In such capacity, he will be responsible for the profitable operation of the concern's marketing organizations in approximately ten foreign countries. The petition reflects that the position is permanent and pays $385 per 35-hour-week. The alien is a 41-year-old native and citizen of France who presently resides in that country. He has been employed by the petitioner's affiliate concern in France since October 1, 1951 and is currently the Regional Marketing Manager for the company's Industrial Products Group. He is the beneficiary of an approved visa petition filed by the petitioning concern on February 18, 1970 to accord him preference |