the ground that it had not been established that the beneficiary's services were urgently needed in the United States. The petitioner was informed on that date that the case had been certified to the Regional Commissioner. On October 31, 1962, the Regional Commissioner entered an order approving the decision of the District Director denying the petition. Thereafter, on January 22, 1963, the petitioner was informed that the case was being certified for review to the Deputy Associate Commissioner, Travel Control, Central Office. The case is now before us pursuant to this certification. On January 29, 1963, after having received the latter notice of certification, the petitioner submitted a statement dated January 12, 1963, again expressing the urgent need for the beneficiary's services as a "cantor" and stating that the church now had two cantors, one of whom was disabled, and the other 76 years-of-age. This statement also alleges that the remuneration for the position is now $3,200 annually, plus free living quarters and tips. In determining whether an urgent need exists for the beneficiary's services within the meaning of the statute, a reasonable interpretation must be applied. In the usual case, the petitioner seeks the services of the beneficiary on a full-time basis, and the beneficiary derives his livelihood from the services rendered for the petitioner. Such a petition normally would be approvable where it is shown that the beneficiary possesses the requisite skills, that the petitioner has an urgent need of the beneficiary's skills because of the latter's qualifications, and that the services rendered would benefit the national economy, cultural interests or welfare of the United States prospectively. Where a petitioner requires a beneficiary's services on less than a full-time basis and the beneficiary will have to work elsewhere to sustain himself, a finding ordinarily may not be made that his services are “needed urgently" within the contemplation of section 203 (a) (1) of the Immigration and Nationality Act. An exception to this rule may be made if it is established that the services which a beneficiary will perform for persons or organizations other than the petitioner require the same skills and qualifications, and that the beneficiary will be employed on what may be considered a full-time basis and will receive sufficient compensation to sustain himself and family from the work performed for the petitioner and the related work performed for others. In the instant case, it has not been established that the beneficiary will devote his services full-time to the services to be performed for the petitioner or in related pursuits, or that he will derive sufficient income from such employment without the necessity of engaging in unrelated work in order to sustain himself and his family. The petitioner has, in fact, indicated that the beneficiary will have to engage in such unrelated work to supplement the income which he will receive from the petitioner for the work the beneficiary will perform on Sundays and holy days only. The record clearly shows that there is only a part-time need for the services of the beneficiary in the field for which his services are sought. It is concluded that an urgent need for the beneficiary's services has not been established within the meaning of the statute, and that the visa petition was properly denied. It is ordered that the decision of the Regional Commissioner be sustained and the petition denied. MATTER OF O'SULLIVAN In DEPORTATION Proceedings A-6210570 Decided by Board January 15, 1963 Decided by Board August 2, 1963 Absent an affirmative showing of lack of judicial jurisdiction, the order of the trial judge, Recorders Court, Michigan, entered March 19, 1962, granting respondent's motion for new trial, following conviction and sentence, and dismissing the cause nolle prosequi, which for all purposes under Michigan law set aside the conviction, is effective to remove the ground of respondent's deportability under section 241 (a) (11), 1952 Act, based on such conviction on October 15, 1959, in the same court, of addiction to unlawful use of narcotic drugs. CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of violation of a law relating to the illicit possession of narcotic drugs, to wit: unlawful use and addiction to unlawful use of narcotic drugs. BEFORE THE BOARD Respondent, a native and national of Canada, 58 years old and divorced, was convicted on October 15, 1959 in the Recorder's Court, Detroit, Michigan of addiction to unlawful use of narcotic drugs. She was a nurse at Doctors Hospital in Detroit and used her position to convert the drugs to her own use.1 Subsequently the Service brought these deportation proceedings, which the special inquiry officer originally terminated, distinguishing between illicit possession of narcotics as specified in the order to show cause and unlawful use of narcotics under the statutory provisions in Michigan. The examining officer appealed, contending that the conviction for unlawful use encompassed unlawful possession. We sustained the position of the examining officer in our order of November 1C.L. '48 sec. 335.154, Mich. Stat. Ann. sec. 18.1124. 20, 1961, which directed deportation on the charge contained in the order to show cause, citing Matter of H-U-2 Respondent then commenced an action in the United States District Court, Eastern District of Michigan against the District Director, which was dismissed on March 21, 1962, on stipulation, because of respondent's motion pending before this Board for reopening of the deportation proceedings. We granted oral argument on that motion on February 28, 1962. Counsel for respondent did not appear for oral argument, but submitted a supplementary petition in support of the petition for rehearing. The supplementary petition called our attention to an order dated March 19, 1962 of the Recorder's Court which granted respondent's motion for a new trial and dismissed the cause on motion of the Assistant Prosecuting Attorney. Counsel for respondent contended, and continues to contend, that such action in the trial court completely removed the basis of the deportation proceedings. We granted the motion for reopening and reconsideration. Following the reopened hearing the special inquiry officer again terminated the proceedings and certified the case to us for final decision, pursuant to our order. We now must determine whether the respondent is still deportable under the provisions of section 241 (a) (11) of the Immigration and Nationality Act despite the trial court's removal of the conviction. upon which the order to show cause is solely based. The special inquiry officer contends that there is a marked procedural difference between the manner in which respondent's conviction was set aside and the California procedure which the Attorney General had under consideration in Matter of A-F-3 He states that the ac 27 I. & N. Dec. 533. 38 I. & N. Dec. 429. The Attorney General held that, in view of the clear national policy evidenced by the history of paragraph (11) subsection (a) of section 241 of the Immigration and Nationality Act and subsection (b) of that section, as amended, it is immaterial that pursuant to a state statute such as section 1203.4 of the California Penal Code, as amended, or section 1772 of the Welfare and Institutions Code of that State, the verdict of guilty has been set aside and the criminal charge dismissed. At the time the Attorney General's opinion, Arellano-Flores' conviction had not in fact been expunged. Subsequently his probation was terminated and his conviction expunged. We denied a motion to reopen. A declaratory judgment action to review the deportation proceedings followed. The District Court, Southern District of California affirmed the Attorney General in an unreported decision dated 12/15/60. Arellano-Flores did not appeal, but sought to relitigate the same issues on writ of habeas corpus, which was denied by the same District Court. That decision has been affirmed. Arellano-Flores v. Rosenberg, 310 F. 2d 118 (C.A. 9, 11/9/62). The Court of Appeals did not reach the merits of the petitioner's contention that the deportation proceedings had been voided by the state proceedings removing his conviction. 321 tion of the trial judge here is a judicial act as opposed to expungement in California, in which the court's action is ministerial, and concludes that the present record of the Recorder's Court must be given full faith and credit. Respondent filed her motion in the trial court more than two years after conviction, and apparently after satisfactory completion of probation. Except for alleging that respondent would not have pleaded guilty, and the court would not have accepted such plea, if it had been realized that upon conviction she would be liable to deportation, the motion does not in any way challenge the proceedings in the state court. No prejudicial error is alleged; no newly discovered evidence is offered. Whatever on this record the requirements of full faith and credit may be, it is evident the action of the trial court may be disregarded, as the Service urges, only if the court exceeded it power under state law, or if its action, regardless of whether proper under state law, is ineffective in the federal proceedings, because of a federal standard based upon overriding national interest. It is also evident that if the action of the trial court is given effect the deportation proceedings no longer have any basis." Michigan statutory law provides that the court in which the trial of any indictment shall be had may grant a new trial to the defendant for any cause for which by law a new trial may be granted or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct. Another statutory 4 28 U.S.C. 1738. "Without conceding that judicial rules of evidence are applicable in administrative deportation proceedings we note that the certified copy of the court record and of the moving papers may not comply with rule 44 of the Federal Rules of Civil Procedure. Chung Young Chew v. Boyd, 309 F. 2d 857 (C.A. 9, 10/30/62). The papers lack a certificate that the attesting officer, the clerk of the court, has legal custody of the original record, unless the Judge's certificate, which identifies the attesting officer as the clerk of the court, the court as a court of record and the seal as the seal of the court, is deemed substantial compliance with the custody provision. We need not rule on this point, however. The copy of the court record was received without objection by the Service. The Service itself submitted the copy of the moving papers. Counsel for respondent declined to do so and in fact objected to admission of the moving papers but only as irrelevant. Under these circumstances any question of admissibility of the records on grounds of competence has been waived. Counsel did not renew this objection on appeal. In any event, however, we consider the copy of the motion relevant for whatever light it might throw on the basis for the court's action. C.L. '48 sec. 770.1, Mich. Stat. Ann. sec. 28.1098. Statutory provisions pertaining to indictments apply equally for informations. C.L. '48 sec. 767.2, Mich. Stat. Ann. sec. 28.942. |