MATTER OF GUTNICK In Deportation Proceedings A-13438882 Decided by Board March 17, 1971 Where, subsequent to respondent's convictions of burglary in Arizona, court orders were issued setting aside the judgments of conviction and dismissing the complaints for all purposes pursuant to Article 13-1744 of the Arizona Criminal Code as amended by Chapter 221, section 1, effective January 1, 1971, such convictions have been expunged and are no longer convictions of crimes within the meaning of section 241(a) (4) of the Immigration and Nationality Act. CHARGE: Order: Act of 1952-Section 241 (a) (4) [8 U.S.C. 1251 (a) (4)]—Convicted of two crimes involving moral turpitude: Burglary from vehicle and burglary, first degree. ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: This case is before us on motion of the respondent to reopen the deportation proceedings and to reconsider the Board's order of deportation, dated October 30, 1969. The Service does not oppose the respondent's motion. The motion will be granted and the proceedings terminated. The record relates to a 40-year-old unmarried male alien, a native and citizen of Canada, who entered the United States for permanent residence on May 15, 1963. On November 6, 1968, the respondent was convicted, after a plea of guilty, in the Superior Court of the State of Arizona, County of Maricopa, for the offense of burglary from a vehicle. On November 19, 1968, the respondent was convicted, after a plea of guilty, in the Superior Court of the State of Arizona, County of Pima, for the offense of burglary, first degree. For both of these offenses the sentence was suspended and he was placed on probation. In Matter of Gutnick, Interim Decision No. 2011 (BIA, October 30, 1969), the Board found the respondent deportable under section 241 (a) (4) of the Immigration and Nationality Act as one who, after entry, had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. On December 16, 1970, the United States Court of Appeals for the Fifth Circuit denied review of the case. Subsequent to our decision in this matter, Article 13-1744 of the Arizona Criminal Code under added laws, Chapter 221, section 1, was enacted into law by the Arizona legislature effective January 1, 1971. This provides that a defendant who has fulfilled the conditions of probation or who has been discharged from probation prior to the termination of the stated period shall be permitted by the court: to withdraw his plea of guilty and enter a plea of not guilty or if he has been convicted after a plea of not guilty, the court may set aside the verdict of guilty. In either case the court may 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. The probationer shall be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney or by the probation officer authorized in writing, provided that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. With the motion, counsel for the respondent presented Court Orders issued on January 18, 1971 and January 20, 1971, respectively, pursuant to the newly enacted Article 13-1744 of the Arizona Criminal Code, setting aside the judgments of conviction previously entered against the respondent and dismissing the complaints for all purposes. In Matter of Ibarra-Obando, 12 I. & N. Dec. 576 (A.G., 1967), the Attorney General held that a conviction which was later expunged under section 1203.4 of the Penal Code of California is not a conviction of a crime for the purposes of section 241 (a) (4) of the Act. With the exception of the permissive term "may," Article 13-1744 of the Arizona Criminal Code is identical with section 1203.4 of the California Penal Code. We are satisfied that the two convictions in question in this case have been expunged and are no longer convictions of crimes within the meaning of section 241 (a) (4). Accordingly, we will grant the respondent's motion, withdraw our prior order of deportation, and terminate the proceedings. ORDER: It is ordered that the motion to reopen and reconsider be and the same is hereby granted. It is further ordered that, upon reconsideration of this matter as requested in the motion to reopen and reconsider, the prior order of deportation of the Board dated October 30, 1969, be and the same is hereby withdrawn; and that the deportation proceedings be and the same are hereby terminated. MATTER OF THE In Visa Petition Proceedings A-18500754 Decided by Regional Commissioner March 9, 1971 Since the qualification requisites relating to physicians as set out in 8 CFR 204.2 (e) (2) may be applied to dentists, and since the passing by petitioner/beneficiary of the Science Achievement Examination for Dentistry given by the American Dental Association is not equivalent to passing the examination given by the Educational Council for Foreign Medical Graduates specified in 8 CFR 204.2(e) (2), petitioner/beneficiary, who reIceived his dental education in Indonesia but did not obtain a full and unrestricted license to practice in that country, has failed to establish eligibility for preference classification under section 203 (a) (3) of the Immigration and Nationality Act, as a dentist. ON BEHALF OF APPELLANT: Allen R. Jackson, Esquire 580 Washington Street San Francisco, California 94111 This case comes before the Regional Commissioner on appeal from the decision of the Acting District Director, San Francisco, who denied the petition on January 6, 1971 in that the appellant had failed to establish that he qualified as a member of the professions as a dentist and was, therefore, not eligible for classification under section 203 (a) (3) of the Immigration and Nationality Act, as amended. The appellant is a 33-year-old single male, a native and citizen of Indonesia. He was last admitted to the United States as an "F" student on September 18, 1968 and granted extensions of stay in that status to March 29, 1970. At time of admission he was destined to Bay City College of Dental-Medical Assistants, San Francisco, where he took a dental technician's course in "Crown and Bridge" and was issued a certificate showing that he qualified as a crown and bridge lab technician. On February 12, 1969 he transferred to the College of Marin near San Francisco where he was enrolled in a pre-dental course. Evidence has been presented that he is now enrolled in the special program at the University of Southern California as a third-year dental student. He filed a petition under section 203 (a) (3) of the Act on July 17, 1970 as a member of the professions as a dentist to seek work as such in California. The petition was denied by the District Director on September 14, 1970 for lack of a Labor certification pursuant to section 212 (a) (14) of the Act. On October 28, 1970 the Department of Labor advised this Service that upon their reconsideration a Labor certification for the occupation of dentist had been issued in behalf of the appellant on October 28, 1970. The Acting District Director on his own motion reopened the case and again denied the petition on January 6, 1971 finding that the appellant was not qualified as a member of the professions as a dentist. The denial decision in pertinent part states: Petitioner has submitted evidence that he completed his studies at Trisakti University in Indonesia and passed the final examination of the Faculty of Dentistry but did not take the state examination which is required to obtain the "Doctorgigi" (dentist) degree and license as a dentist. He has also submitted evidence that he completed a crown and bridge lab technician's course at Bay City College of Dental-Medical Assistants in San Francisco; passed the science achievement examination for dentistry given by the American Dental Association; and has been accepted in the University of Southern California School of Dentistry as a third-year student. He lists employment as a teaching assistant in the Faculty of Dentistry at Trisakti University from 1964 to 1965 and as a crown and bridge lab technician from July 1969 to July 1970. Matter of Maher, 12 I. & N. Dec. 680, holds that a graduate of a foreign school of dentistry who has obtained a full and unrestricted license to practice dentistry in the country of his education qualifies as a member of the professions within the meaning of section 101 (a) (32) of the Immigration and Nationality Act, as amended, and is eligible for preference status under section 203 (a)(3) of the Act, as amended. Petitioner did not take the state examination which is required to obtain his dentist degree and license in Indonesia and he has never been employed as a dentist in any other country. From the evidence submitted it cannot be found that he is a qualified member of the profession for which he is petitioning. Petition will accordingly be denied. In the Matter of Maher, supra, reference is made to 8 CFR 204.2(f) (2) (now 8 CFR 204.2 (e) (2)) which relates to alien physicians who, if they meet certain conditions, "shall be considered eligible for classification as a member of the professions" and goes on to state: "Although the above-cited excerpt from 8 CFR 204.2 (f) (2) relates specifically to one of the criteria for determining whether an alien physician may be classified as a member of the professions, we conclude that criterion may be applied with i |