was denied after expungement of the record of conviction under section 1203.4.

The effect of proceedings under section 1203.4 has been considered in Federal courts in connection with naturalization proceedings (In re Ringnalda, 48 F. Supp. 975, (S. D. Calif., C. D., 1943), Service File 246-C-5675447; In re Paoli, 49 F. Supp. 128 (N. D. Calif. S. D., 1943)). The courts in the Federal cases were cognizant of the holding of the State court in the Phillips case. The effect of the holdings in the Federal cases is that the acts of the persons involved may be considered in connection with the determination of whether good moral character has been established but that the record of conviction may not be relied upon as establishing commission of the acts. In the Meyer case the court permitted the record of conviction to be considered as establishing unprofessional conduct.

The court in the Meyer case split four to three and in a strong dissent it was stated:

The majority point out that the legislature could not have intended that the proceeding under section 1203.4 of the Penal Code was to wipe out the defendant's guilt because (1) of the express proviso contained in the section; (2) because the conviction may be used for impeachment purposes, People v. James, 40 Cal. App. (2d) 740, 746, 105 P. (2d) 947; (3) because it may be used for the purpose of suspending or revoking a driver's license (Vehicle Code, sec. 309); (4) because it may be used in a second prosecution for failure to provide for a minor child, and because all matters inherent in the conviction (that is, the adjudication on the issue of parentage) were admissible in evidence. People v. Mojado, 22 Cal. App. (2d) 323, 70 P. (2d) 1015.

I would like to point out, in this connection, that in People v. James (supra), the defendant was charged with the crime of grand theft. The fact that he had been previously convicted and the conviction dismissed pursuant to section 1203.4 of the Penal Code was used to impeach him. This case does not add another exception to the statute, but falls squarely within the one there contained. * *

And in People v. Mojado (supra), the defendant was found guilty, under section 270 of the Penal Code, of failure to provide for a minor child. The only question raised there was whether the court erred in admitting in evidence the record of a prior conviction which had been subsequently dismissed pursuant to section 1203.4 of the Penal Code. Note that this case, too, falls squarely within the exception to the section and is not additional thereto. Both People v. James, and People v. Mojado (supra), cite with approval statements made in the case of People v. Hainline, 219 Cal. 532, 28 P. (2d) 17. In that case it was said, 219 Cal. at page 534, 28 P. (2d) at page 17: "If, prior to the 1927 amendment, any doubt existed in the minds of lawyers, judges, and laymen as to the status of those who committed a second felony, such doubt was removed by said amendment (St. 1927, p. 1493), which strips them of all the privileges and rights which were restored to them by the provisions of the original act upon the completion of their probationary term.

*

"The concluding portion of the act, which provides that if the probationer commits a second offense he shall forfeit all the rights with which he was clothed at the time the court ordered the information dismissed, constitutes the amendment of 1927 ***. Said amendment simply and justly provides that persons

who have refused to profit by the grace extended to them upon the first offense shall, upon conviction of a subsequent felony, suffer the penalty of the law as prescribed for the punishment of all other offenders." [Emphasis added.]

Section 309 of the Vehicle Code is an express additional statutory exception to the Penal Code section under consideration.

The charges against the respondent in the instant case are that he has been convicted of a crime and that he admits, on the basis of the plea in the criminal case, the commission of this crime. California statutes specifically provide that for some purposes the proceedings under section 1203.4 are not regarded as having expunged the record of the crime. In the words of the majority opinion in the Meyer case "As the release of the 'penalties and disabilities' clause of the probation statute has been so qualified in its application, it does not appear that it was thereby intended to obliterate the record of conviction against a defendant and purge him of the guilt inherent therein (cf. Sherry v. Ingels (supra), 34 Cal. App. (2d) 632, 94 P. (2d) 77) or to 'wipe out absolutely' and for all purposes the dismissed proceedings as a relevant consideration and "to place the defendant in the position which he would have occupied in all respects as a citizen if no accusation or information had ever been presented against him.' People v. Mackey, 58 Cal. App. 123, 130, 208, P. 135, 138. From this standpoint, appellant's theory that the import of the probation statute and the dismissal proceeding is to expunge the record of the crime, Sherry v. Ingels (supra); People v. Mackey (supra), cannot prevail.” It is the opinion of the State court that the expungement proceedings do not obliterate the adjudication of guilt, that the person remains one who has been convicted, and that the record of conviction is admissible as evidence of conviction of the crime in proceedings additional to the proceedings specifically provided for by statute. The State and Federal courts, however, are in disagreement. There is still a substantial doubt as to the propriety of holding that, as far as immigration proceedings are concerned, the person remains one who has been convicted of a crime. Accordingly, no change appears to be warranted in the present view of the Service to the effect that in cases such as the instant one the charges are not sustained. The warrant of arrest will therefore be canceled and the proceedings will be terminated.

Order: It is ordered that the warrant of arrest be canceled and that the proceedings be terminated.

IN THE MATTER OF G

In DEPORTATION Proceedings

A-2096839

Decided by Board February 16, 1951

Foreign Agents Registration Act of June 8, 1938, as amended August 7, 1939— Conviction thereunder (1943)—Deportability under the above act, as further amended on April 29, 1942-Suspension of deportation-Discretion.

(1) Although the Foreign Agents Registration Act of June 8, 1938, as amended by the Act of August 7, 1939 did not contain a provision for deportation of an alien convicted thereunder, an alien so convicted is subject to deportation under the provisions of the Act of April 29, 1942 which further amended the above Act of June 8, 1938, as amended by the Act of August 7, 1939.*

(2) Though an alien establish that he meets the eligibility requirements set forth in Sec. 19 (c) of the Immigration Act of February 5, 1917, as amended, he may yet be found undeserving of suspension of deportation as a matter of discretion.

CHARGE:

Warrant: Act of 1938, as amended-Convicted of violation of and conspiracy to violate Foreign Agents Registration Act of 1938.

BEFORE THE BOARD

Discussion: This case was argued before us by counsel on January 19, 1950. Because of the decision of the Supreme Court in Sung v. McGrath, 339 U. S. 33, 94 L. Ed. 616, 70 S. Ct. 445 (1950), we ordered that the record be reopened for rehearings conducted in accordance with the provisions of that act. The earlier hearings were stipulated into the record. The hearing examiner found respondent to be deportable and concluded that he is ineligible for suspension of deportation. The Assistant Commissioner found respondent to be eligible for suspension, but denied relief because of his conviction in 1943 for a crime, as discussed hereafter. The record is again before us on appeal. Respondent is a native and citizen of Germany, age 40. He first entered the United States in 1929 as a quota immigrant. He has re

*Editor's note.-See 3, I. & N. Dec. 310 wherein conviction was under the above act, as amended April 29, 1942.

sided in the United States at all times since 1929 except for two 4month periods when he left the United States to visit his family, once in Mexico in 1931 and once in Germany in 1937.

Respondent married a United States citizen in California on May 11, 1941. A United States citizen child was born to respondent and his wife on April 12, 1942. Respondent is at present separated from his wife, having obtained an interlocutory decree of divorce against her on September 23, 1946. The child was awarded to the custody of respondent's wife. He pays her $25 per month for support of the child. On December 8, 1941, respondent was taken into custody and interned as an alien enemy. On October 5, 1943, while in internment, he was indicted by a Federal grand jury for conspiracy to violate the Notification Act of 1917, 40 Stat. 226, and for conspiracy to violate the Foreign Agents Registration Act of June 8, 1938, as amended, and to defraud the United States under the Federal conspiracy statute (18 U. S. C. sec. 88; 22 U. S. C. sec. 601; 22 U. S. C. sec. 611-616). This indictment contained two counts. The court dismissed the conspiracy alleged under count I, and respondent was found guilty by a jury, after a plea of not guilty, of the conspiracy alleged under count II. Count II alleged a conspiracy to violate and the violation of the Foreign Agents Registration Act of June 8, 1938, 52 Stat. 631, 22 U. S. C. A. 612, as amended by the act of August 7, 1939 (53 Stat. 1244), and rules and regulations promulgated thereunder, and to defraud the United States in violation of title 18 U. S. C., section 88. Respondent served a prison sentence in the Federal Correctional Institution at Milan, Mich., from June 2, 1944, until January 26, 1946. Upon release from that institution, he was again interned as an alien enemy. He was unconditionally released in alien enemy proceedings on June 5, 1946. The Alien Enemy Repatriation Hearing Board determined that respondent should not be removed from the United States as an "undesirable alien."

The Assistant Commissioner has found that respondent is a person of good moral character. He has found that deportation of respondent would not result in serious economic detriment to respondent's United States citizen child for the reason that respondent is paying only $25 a month for the support of the child. We agree with the finding that respondent is a person of good moral character. We do not make any finding as to whether or not his deportation would result in a serious economic detriment to his child. It is not necessary for the purpose of this proceeding for us to make any finding on this issue.

The Foreign Agents Registration Act of June 8, 1938, as amended. by the act of August 7, 1939, did not contain a provision for deportation of any alien convicted thereunder. On April 29, 1942, Congress amended this act generally, expanding its application, increasing its

penalties and providing for deportation of any alien as follows (22 U.S. C. 618 (c), 56 Stat. 257):

(c) Any alien who shall be convicted of a violation of, or a conspiracy to violate, any provision of this act or any regulation thereunder shall be subject to deportation in the manner provided by sections 19 and 20 of the Immigration Act of 1917 (secs. 155 and 156 of title 8).

Counsel pleads that respondent was convicted under the act of 1938, as amended in 1939. This act contained no deportation provisions, and it is the principal argument of counsel that the deportation provision added by the amendment of 1942 should have no application to respondent. He contends that to hold that it has such an application would be giving the amendment an ex post facto application. Respondent and his associates were prosecuted in 1943 under the 1938 act, as amended in 1939, instead of being prosecuted under the act as amended in 1942. The reason for this was because as to them the increased criminal penalties in the 1942 act would have been ex post facto. It is our opinion that the application of the deportation penalty is not so restricted. It has long been established that Congress may enact a statute providing for the deportation of aliens for past misconduct. The courts have held that despite the fact than an immigration law may be retrospective in its application to an alien, deportation is not such a punishment or penalty as to bring it within the ex post facto inhibition. The most recent exposition of this subject is contained in Harisiades v. Shaughnessy, 90 F. Supp. 397, 424, recently sustained by the Second Circuit Court of Appeals, as follows:

An ex post facto law is one that makes an act committed before its passage criminal, although at the time the act was committed it was not criminal. Ex post facto laws are specifically forbidden by article I, section 9, of the United States Constitution. But a deportation proceeding is not a criminal proceeding. The retrospective features of a deportation statute do not fall under the ban of the ex post facto section of the Constitution, (Johannessen v. United States, 225 U. S. 227, 32 S. Ct. 613, 56 L. Ed. 1066; Luria v. United States, 231 U. S. 9, 34 S. Ct. 10, 58 L. Ed. 101; Bugajewits v. Adams, 228 U. S. 585, 33 S. Ct. 607, 57 L. Ed. 978; Mahler v. Eby, 264 U. S. 32, 44 S. Ct. 283, 68 L. Ed. 549).

Counsel quotes from the substantially different Vierack v. United States, 318 U. S. 236, 87 L. Ed. 734, 63 S. Ct. 561. The Supreme Court held that Congress could not legislate after the crime had been committed to make Viereck's crime greater than it was under the law as it existed at the time of the crime. The distinction between that case and the present one is that Viereck's acts did not constitute a crime under the 1938-39 act but did constitute a crime under the act as amended in 1942. Respondent's acts constitute a crime under both the 1938-39 act and under the act as amended in 1942. The Supreme Court held that since Viereck's acts did not constitute a crime under the earlier statute, the later statute could not be used by the Govern

260397-54-19