But Rehman was decided long before the enactment of the statutory definition of "conviction" under the INA. At the time of Rehman, the federal courts and the BIA, as a matter of federal common law, recognized certain rehabilitative measures for purposes of alien removal. See, e.g., Mestre Morera v. INS, 462 F.2d 1030, 1031-32 (1st Cir. 1972); Matter of Nagy, 12 I. N. Dec. 623 (BIA 1968); Matter of G-, 9 I. N. Dec. 159 (BIA 1960); Matter of O-T- 4 I. N. Dec. 265 (BIA 1951); but see Kolios v. INS, 532 F.2d 786, 788-90 (1st Cir. 1976). As we have explained above, circumstances since then have changed.
Further, under federal circuit review of this Service policy, the discretionary use exception has also failed to appear.Matter of Nagy, 12 I. N. Dec. 623 (Bd. of Imm. App. 1968) was interpreted in Mestre Morera v. Immigration Nat. Serv., 462 F.2d 1030, 1032 (1st Cir. 1972), as standing for the proposition that "an alien whose conviction for a `crime involving moral turpitude' had been expunged . . . [under the Youth Corrections Act] could not be deported under section 241(a)(4)." (emphasis supplied).
We are unable to presume that Congress, without any reference to such an intent, meant in section 5021 to provide for setting aside a conviction for some purposes but not for others. The Service itself recognized the cogency of this reasoning in Matter of Nagy, 1968, 12 I. N. Dec. 623, in which it held that an alien whose conviction for a "crime involving moral turpitude" had been expunged under section 5021 could not be deported under section 241(a)(4). The Service now seeks to distinguish the instant case on the theory that it involves a deportation under section 241(a) (11) for a narcotics conviction, arguing that, as evidenced by section 241(b), Congress has enunciated a strong national policy of deportation of aliens involved in the narcotics traffic which should not be required to defer to a technical erasure of a conviction.