Matter of Grullon

In a decision dated April 15, 1985, the immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), denied his applications for suspension of deportation and voluntary departure, and ordered him deported from the United States. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded to the immigration judge for further proceedings. The respondent is a 42-year-old native and citizen of the Domini- can Republic. The record reflects that he entered the United States on March 28, 1972, as a nonimmigrant visitor with authorization to remain for 6 months. The respondent is married to a citizen of El Salvador and they have a United States citizen daughter who is now 6 years old. During deportation proceedings the respondent conceded deporta- bility as an overstayed nonimmigrant and applied for suspension of

在1985年4月15日的决定中，移民法官认定答辩人根据《移民与国籍法》第241(a)(2)条，8 U.S.C. § 1251(a)(2) (1982)，可被驱逐，驳回了其暂停驱逐和自愿离境的申请，并命令将其驱逐出美国。答辩人已对该决定提出上诉。上诉将获支持，案件记录将发回移民法官进一步审理。 答辩人是一名42岁的多米尼加共和国本土公民。记录显示，他于1972年3月28日作为非移民访客进入美国，获准停留6个月。答辩人与一名萨尔瓦多公民结婚，他们有一名美国公民女儿，现年6岁。 在驱逐程序中，答辩人承认作为逾期非移民可被驱逐，并申请暂停

deportation. In his testimony supporting this application he admitted that he had been arrested for a problem with cocaine. The record reflects that the respondent was charged in the State of Florida with possession of a controlled substance on June 12, 1983. The respondent claimed, however, that the charges should not be considered a conviction for immigration purposes because he had participated in the Florida pretrial intervention program, and his criminal record would be expunged within a few months pursuant to section 943.058 of the Florida Statutes.' The attorney for the Immigration and Naturalization Service opposed the respondent's application for suspension of deportation, arguing that expunction of a drug conviction does not eliminate it for immigration purposes. The immigration judge concurred with the Service's position, finding that section 243.058 of the Florida Statutes 2

驱逐。在支持该申请的证词中，他承认曾因可卡因问题被捕。记录显示，答辩人于1983年6月12日在佛罗里达州被控持有受管制物质。然而，答辩人声称，这些指控不应被视为移民目的上的定罪，因为他参与了佛罗里达州审前干预计划，并且根据佛罗里达州法规第943.058条，其犯罪记录将在几个月内被消除。' 移民和归化局律师反对答辩人的暂停驱逐申请，主张毒品定罪的消除并不消除其移民目的上的效力。移民法官同意服务局的立场，认定佛罗里达州法规第243.058条2

was not a state counterpart to the federal first ofender statute. He therefore concluded that the respondent was unable to establish the requisite good moral character for suspension of deportation and voluntary departure. On appeal the respondent has submitted documents' supporting his claim that he successfully completed the pretrial intervention program and that court records now have been sealed and indicate that he has no felony convictions. Thus he reiterates his assertion that, because the charges against him have been dropped under the Florida pretrial intervention program, he has not been convicted for immigration purposes. We agree. The State of Florida has a statutory provision for pretrial interven- tion programs under section 944.025 of the Florida Statutes. That statute provides in pertinent part: (I) The department shall supervise pretrial intervention programs for persons charged with a crime, before or after any information has been filed or an indictment has been returned in the circuit court. Such programs shall provide appropriate counseling, education, supervision, and medical and psychological treatment as available and when appropriate for the persons released to such programs.

并非联邦初犯法规的州对应法规。因此，他得出结论，答辩人无法确立暂停驱逐和自愿离境所需的良好道德品质。 在上诉中，答辩人提交了文件'支持其主张，即他成功完成了审前干预计划，且法院记录现已被封存，表明他没有重罪定罪。因此，他重申其主张，即由于针对他的指控已根据佛罗里达州审前干预计划被撤销，他并未为移民目的被定罪。我们同意。 佛罗里达州在佛罗里达州法规第944.025条下有审前干预计划的法定条款。该法规相关部分规定： (1) 该部门应监督针对被控犯罪者的审前干预计划，无论是在任何起诉书提交或大陪审团起诉书返回之前或之后。此类计划应提供适当的咨询、教育、监督以及医疗和心理治疗，视情况为释放到此类计划的人员提供。

In Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), we set forth a new standard for determining whether a conviction exists for immigration purposes. According to Ozkok, if there has been no adjudication of guilt, a conviction will be found only where the alien has pleaded guilty or nolo contendere or was found guilty of the charges against him; the judge ordered some form of punishment, penalty, or restraint of liberty to be imposed; 3 and a judgment or adjudication of guilt may be entered without further proceedings regarding guilt or innocence if the person violated the terms of his probation or failed to comply with the requirements of the court's order. The respondent's criminal records reflect that he never entered a plea to the charges against him. According to section 944.025(1) of the Florida Statutes, the pretrial intervention program is available to persons charged with a crime even before an information has been filed or an indictment returned. Clearly then, entry into the program precedes a pleading by the accused or a finding of guilt by the court. In such case the first element of Ozkok is not present. Furthermore, if a person participating in the program does not

在Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988)中，我们设定了确定移民目的上是否存在定罪的新标准。根据Ozkok，如果没有判定有罪，只有在外国人认罪或不抗辩，或被发现犯有对其指控；法官命令施加某种形式的惩罚、刑罚或自由限制；3 并且如果此人违反缓刑条款或未能遵守法院命令的要求，可以在不进一步审理有罪或无罪的情况下录入有罪判决或裁定，才可认定存在定罪。 答辩人的犯罪记录显示，他从未对针对他的指控提出抗辩。根据佛罗里达州法规第944.025(1)条，审前干预计划可供被控犯罪者使用，甚至在起诉书提交或大陪审团起诉书返回之前。因此，显然进入计划先于被告的抗辩或法院的有罪认定。在这种情况下，Ozkok的第一个要素不存在。 此外，如果参与计划的人不

fulfill his obligations under the plan, his case must revert to normal channels for prosecution. See Fla. Stat. §§ 944.025(4)-(5)(a) (1980). Since no plea or finding of guilt has previously been entered, criminal proceedings are necessary to determine the guilt or innocence of the accused. Under these circumstances, the third prong of the Ozkok standard also cannot be met. In the respondent's case, his criminal records reflect that he successfully completed the Florida pretrial intervention program. They further indicate that the charges against him were subsequently dropped and that the record of his arrest was later expunged. Having reviewed these events and the provisions of Florida law, we find that the respondent has not been convicted of a drug offense for immigra- tion purposes. Accordingly, we conclude that the immigration judge erred in finding that the respondent was convicted of a drug violation and was barred as a result of his conviction from establishing good moral character under section 101(0(3) of the Act, 8 U.S.C. § 1101(0(3) (1982). 4 We shall therefore sustain the appeal and remand the record to the immigration judge for further proceedings. ORDER: The appeal is sustained and the record is remanded for further proceedings.

履行计划下的义务，其案件必须回归正常起诉渠道。见Fla. Stat. §§ 944.025(4)-(5)(a) (1980)。由于先前未录入抗辩或有罪认定，刑事诉讼对于确定被告有罪或无罪是必要的。在这些情况下，Ozkok标准的第三个方面也无法满足。 在答辩人的案件中，其犯罪记录显示他成功完成了佛罗里达州审前干预计划。它们进一步表明，针对他的指控随后被撤销，其逮捕记录后来被消除。审查了这些事件和佛罗里达州法律的规定后，我们认定答辩人并未为移民目的被定罪毒品犯罪。因此，我们得出结论，移民法官错误地认定答辩人因毒品违规被定罪，并因此根据该法第101(0(3)条，8 U.S.C. § 1101(0(3) (1982)，被禁止确立良好道德品质。4 因此，我们将支持上诉并将案件记录发回移民法官进一步审理。 命令： 上诉获支持，案件记录发回进一步审理。