1918, as amended by the Internal Security Act, proposes to revoke the authority of the Attorney General (and those to whom he may delegate his authority) to exercise the 7th proviso in reference to subversive cases in the future. This clearly being past action, the statute does not apply.

Although not germane to the issue before us, the applicant's representative points out in detail the efforts the applicant has been making to secure lawful admission under this grant or discretionary action. It is clear that the applicant has been diligent and the delays in securing lawful entry are beyond his control.

The question of law involved in this case is of very limited application. Besides this case, there are four other possible cases where the ruling might be applicable. Within recent times the 7th proviso admission in reference to aliens who have previously been members of the Communist Party or like organizations has been authorized by this Board in but five cases. Whether the aliens in the other four cases have taken advantage of the grant of discretion and have been legally admitted to this country, we do not know; but in any event, the group covered is extremely limited.

It is our conclusion, therefore, that the motion of the Acting Commissioner should be denied. Since, however, there is involved a question of discretionary action relating to a subversive case, we feel that the matter should be brought to the attention of the Attorney General.

Order: It is ordered that the motion of the Acting Commissioner be denied.

LEIGH L. NETTLETON and ROBERT M. CHARLES, Members, dissenting:

We are compelled to dissent from the opinion of our associates on the legal issue presented by the motion of the Acting Commissioner. Section 3 of the Immigration Act of 1917 (8 U. S. C. 136), after stating that certain classes of aliens, as specified therein, shall be excluded from admission into the United States, provides as follows:

Provided further (7). That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe:

In our consideration of this case on November 8, 1949, we entered an order the pertinent portion of which was as follows:

Order: It is ordered that *** if the appellant applies for admission to the United States within 6 months from the date of this order, in possession of an appropriate immigration visa, he be admitted under the 7th proviso to section 3 of the Immigration Act of February 5, 1917, if then in all respects admissible, except for his affiliation with one of the aforementioned excludable classes from 1921 to 1928.

It is clear from the language of the statute and the order that the time of operation of the waiver authorized by the Attorney General is the time the alien applies for admission into the United States. The alien has not yet applied for admission; he contemplated doing so when he obtained an immigration visa. Meanwhile the Internal Security Act was enacted. It narrows the scope of operation of the 7th proviso. The act provides:

Section 6 (a). The provisions of the 7th proviso to section 3 of the Immigration Act of February 5, 1917, as amended (39 Stat. 875; 8 U. S. C. 136), relating to the admission of aliens to the United States, shall have no application to cases falling within the purview of section 1 of this act.

That language limits the scope of operation of the proviso and its effect, as we believe, is to nullify any outstanding order in conflict therewith. The order of November 8, 1949, authorizing admission pursuant to the 7th proviso, has not been effectuated by the contemplated entry into the United States; and now by reason of the change in the law the authority to enter no longer exists.

The fact that the administrative order was entered pursuant to law as it then existed is beside the point, inasmuch as the amendment provides in specific terms that the proviso "shall have no application to cases falling within the purview of section 1 of this act."

The power of the Attorney General to withdraw an order granting relief under the 7th proviso has never been questioned, and it has been exercised whenever circumstances made such action desirable. If the administrative officer has the power to revoke his grant of relief, there seems to be no reason to question the power of the Congress, from which the administrative officer derives his authority, to withdraw or modify any such grant by the officer, previous to the time that the authority so granted had been brought into execution.

We would grant the motion of the Acting Commissioner for the reasons stated herein.

It is further ordered that the case be certified to the Attorney General in accordance with the provisions of section 90.12 of title 8, Code of Federal Regulations, for review of the Board's decision.

BEFORE THE ACTING ATTORNEY GENERAL

(March 23, 1951)

The decisions and order of the majority of the Board of Immigration Appeals dated January 31, 1951, are hereby approved.

BEFORE THE BOARD

(August 3, 1951)

Discussion: On November 8, 1949, this Board authorized the admission of respondent under the provisions of the 7th proviso to sec

tion 3 of the Immigration Act of February 5, 1917, as amended. The Acting Attorney General approved that order on November 16, 1949. On January 31, 1951, we denied a motion of the Acting Commission asking that the grant of 7th proviso relief to respondent be withdrawn because of the provisions of the newly enacted Internal Security Act of 1950 limiting the operation of 7th proviso in this kind of case. Our decision was approved by the Attorney General on March 23,

1951.

The period which respondent has been granted during which to avail himself of this relief has been extended from time to time. His attorney last stated (motion for extension of time in which to perfect preexamination, January 29, 1951), that his extension of time in which to effect entry expired on February 1, 1951, and asked that he be granted an extension until September 1, 1951. A memorandum from the District Director at Philadelphia, Pa., to the Assistant Commissioner, Enforcement Division, Central Office, May 2, 1951, states that the order of this Board dated September 13, 1950, granted respondent only until December 1, 1950, to effect his entry into the United States in accordance with the terms of the original order of this Board dated November 8, 1949, granting 7th proviso relief.

A survey of the file indicates that we never acted upon counsel's motion to extend time to February 1, 1951, filed on November 28, 1950, with this Board, nor upon a similar motion asking an extension to September 1, 1951, filed on January 29, 1951.

In view of the present disposition of this case it appears that respondent should be granted a further extension of time within which to avail himself of the relief granted him. We believe that he should be granted a period of 90 days from the date of notification of decision. Order: It is ordered that the time within which the respondent may effect his entry into the United States in accordance with the terms of the Board's order of November 8, 1949, be extended until 90 days from the date of notification of decision.

IN THE MATTER OF O- T

In DEPORTATION Proceedings

A-4355094

(C-6927495)

Decided by Central Office February 13, 1951

Conviction record, "expunged"-Proceedings under section 1203.4 of the California Penal Code-Whether deportable thereafter on basis of conviction record.

Proceedings under section 1203.4 of the California Penal Code are held to "expunge" the record of conviction and thereafter it may not serve as the basis for an order of deportation.

CHARGES:

Warrant: Act of 1917-Conviction of crime prior to entry, to wit: Petty theft. Act of 1917-Admission of crime prior to entry, to wit: Petty theft.

BEFORE THE CENTRAL OFFICE

Discussion: The respondent is a 49-year-old native and citizen of Mexico who has lived in the United States since his lawful admission for permanent residence in 1919 except for temporary absences. He last entered the United States as a returning resident on or about December 25, 1948. On May 13, 1940, in Los Angeles, Calif., upon a plea of guilty the respondent was convicted of petty theft. He was sentenced to 90 days in jail, 60 days of which were suspended on condition he not violate any law in the State of California for 2 years. The warrant charges are predicated upon this conviction. However, subsequent to the issuance of the warrant of arrest, the court, pursuant to the provisions of section 1203.4 of the Penal Code of California, ordered on June 29, 1949, that the plea of guilty previously entered by said defendant on May 13, 1940, be withdrawn; that a plea of not guilty be entered; and that the accusations against respondent be dismissed. The presiding inspector, in view of the proceedings under section 1203.4 has recommended that the warrant of arrest be canceled. However, the reviewing officer, citing cases of the California Supreme Court that will be hereafter discussed, has concluded that the expungement of the record under section 1203.4 does not remove the

respondent's conviction and this officer has recommended deportation unless it is desired to invoke the authority of the 7th proviso to section 3 of the act of February 5, 1917, nunc pro tunc, to adjust respondent's immigration status in the United States.

Section 1203.4 of the California Penal Code provides:

Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter 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 shall set aside the verdict of guilty; and in either case the Court shall 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 on his probation papers. The probationer may make such application and change of plea in person or by attorney authorizing [ed] 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.

The Service and the Board of Immigration Appeals have held in numerous cases that the proceedings under section 1203.4 expunge the record of conviction and that thereafter it may not serve as the basis for an order of deportation. Matter of G G A-4250665, G— C. O., July 1, 1949 and Board of Immigration Appeals Decisions cited therein; Matter of V, 56033/701 B. I. A. April 10, 1943.* Reconsideration of the question arises from the fact that the Supreme Court of California on June 15, 1949, in the case of Meyer v. Board of Medical Examiners et al. (206 P. (2d) 1085), held that the setting aside of a record of conviction and the dismissal of the criminal proceedings under sections 1203.3 and 1203.4 does not obliterate the fact that there has been a final adjudication of guilt of the crime. The Meyer case involved the suspension of a physician's license in connection with which the record of conviction was used as a basis for a finding that Meyer had been convicted of an offense involving moral turpitude and by reason of such conviction was guilty of unprofessional conduct, the finding and suspension being made after the record of conviction had been expunged under sections 1203.3 and 1203.4.

The Meyer case relied heavily upon the earlier case of In re Phillips (109 P. (2d) 344), decided by the Supreme Court of California on January 17, 1941. The Phillips case involved disbarment proceedings against an attorney in connection with which an order of disbarment had been entered prior to the proceedings under sections 1203.3 and 1203.4 and in which a petition to set aside the order of disbarment and to restore the petitioner's name to the roll of attorneys A-5697769 (formerly

* Editor's note.-To like effect, Matter of E56133/266), B. I. A., 1945.