IN THE MATTER OF LINDNER, 15 IN Dec. 170 (BIA 1975)

Interim Decision Number 2341

A-11038815Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Board January 31, 1975

Respondent was convicted for the illegal possession of marijuana in a criminal proceeding which was not conducted in connection with any provision of either a State or Federal Youth Corrections Act. Thereafter, he was granted a full and unconditional pardon. Under these circumstances, the pardon is not effective to remove respondent’s deportability because aliens charged with being deportable under section 241(a)(11) of the Act are excepted from the pardon provisions of section 241(b).

CHARGE:

Order: Act of 1952 — Section 241(a)(11) [8 U.S.C. 1251(a)(11)] — Convicted of a crime relating to narcotics, at any time after entry.

ON BEHALF OF RESPONDENT: J. Ward Rafferty, Esquire 190 Broad Street New London, Conn. 06320.

ON BEHALF OF SERVICE: Irving A. Appleman Appellate Trial Attorney.

This is an appeal from an order of an immigration judge finding the respondent deportable as charged, and, finding him statutorily ineligible for any form of discretionary relief from deportation, directing his deportation to England. The appeal will be dismissed.

The respondent is a 26-year-old male alien, native and citizen of Germany, who was admitted to the United States for permanent residence on February 20, 1957. At a hearing before an immigration judge at which he was represented by other counsel, the respondent admitted the truth of the factual allegations of the order to show cause but denied deportability. The immigration judge found him to be deportable and ordered his deportation.

On appeal present counsel contends that the respondent is saved from deportation because he has allegedly been granted a full pardon in the State of Connecticut with respect to the crime which forms the basis for these deportation proceedings, and has petitioned for the erasure of his criminal records.[1] We reject this contention in reliance upon the plain

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language of section 241(b) of the Immigration and Nationality Act, which states that the provisions which remove deportability for an alien who has been granted a full and unconditional pardon “shall not apply in the case of any alien who is charged with being deportable from the United States under subsection (a)(11) of this section.”

We find the present case distinguishable from recent decisions which hold that marijuana violators whose convictions have been expunged under federal or state “youth corrections” statutes are not deportable under section 241(a)(11) of the Act, Mestre Morera v. INS, 462 F.2d 1030 (C.A. 1, 1972); Matter of Zingis, 14 IN Dec. 621 (BIA 1974); Matter of Andrade, 1 IN Dec. 651 (BIA 1974). There is no evidence in the record, nor does counsel assert, that the respondent was treated as a youthful offender in Connecticut. This factor, together with the clear mandate of section 241(b), persuades us that the respondent is not entitled to relief from deportation on the basis of his alleged pardon. Nor can we accept counsel’s premise that the erasure of respondent’s criminal record completely negates his conviction for consideration under section 241(a)(11). We cannot impute to Congress an intention to allow for such metaphysical distinctions when they enacted sections 241(a)(11) and 241(b). See generally Matter of A—F—-, 8 IN Dec. 429 (A.G. 1959).

Accordingly, while we are aware of the sympathetic factors in this case, we find that we have no alternative but to affirm the decision of the immigration judge and dismiss the appeal. The following order will therefore be entered.

ORDER: The appeal is dismissed.

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