Rather, a conviction may be considered as an adverse factor in deciding whether the favorable exercise of discretion is warranted. In re Seda, 17 I. N. Dec. 550, 554 (1980). Delgado-Chavez, however, argues that pursuant to 8 U.S.C. § 1251(b)(2), the recommendation against deportation by the state court judge prevents consideration of his conviction in connection with his application for voluntary departure.
However, the Board's reasoning as well as its broad rejection of Giambanco, a case which appeared to apply to all forms of discretionary relief, suggested that the general principle that Congress did not intend for state expunging regimes to bar consideration of either past conduct or the consequences that the state attached to such conduct in a discretionary determination was applicable elsewhere. This reading of Gonzalez appears confirmed by In re Seda, 17 I. N. Dec. 550 (BIA 1980), overruled on other grounds by In re Ozkok, 19 I. N. Dec. 546 (BIA 1988), in which the Board held that, although a conviction expunged under a state expunging statute could not be considered "an admission of commission of the crime" for the purposes of barring eligibility for voluntary departure, the fact of the guilty plea properly could be considered as an "adverse factor . . . in deciding whether a favorable exercise of discretion is warranted," In re Seda, 17 I. N. Dec. at 554. A broad view of Gonzalez also was advanced by the Seventh Circuit in Oviawe v. INS, 853 F.2d 1428 (7th Cir. 1988).
However, the Board's reasoning as well as its broad rejection of Giambanco, a case which appeared to apply to all forms of discretionary relief, suggested that the general principle that Congress did not intend for state expunging regimes to bar consideration of either past conduct or the consequences that the state attached to such conduct in discretionary determination was applicable elsewhere. This reading of Gonzalez appears confirmed by In re Seda, 17 I. N. Dec. 550 (BIA 1980), overruled on other grounds by In re Ozkok, 19 I. N. Dec. 546 (BIA 1988), in which the Board held that, although a conviction expunged under a state expunging statute could not be considered "an admission of commission of the crime" for the purposes of barring eligibility for voluntary departure, the fact of the guilty plea properly could be considered as an "adverse factor . . . in deciding whether a favorable exercise of discretion is warranted," id. at 554. A broad view of Gonzalez also was advanced by the Seventh Circuit in Oviawe v. INS, 853 F.2d 1428 (7th Cir. 1988).
Until the BIA decision in Ozkok, the INS consistently applied this same test to a myriad of immigration matters for over thirty years. See, e.g., Matter of Garcia, Int. Dec. 2995 (BIA 1985); Matter of Zangwill, 18 I N Dec. 22 (BIA 1981); Matter of Seda, 17 I N Dec. 550 (BIA 1980); Matter of Robinson, 16 I N Dec. 762 (BIA 1979); Matter of Varagianis, 16 I N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 I N Dec. 401 (BIA 1963). In Ozkok, however, the BIA rejected this well-established test as too narrow and undesirably subject to the vagaries of state law.
As a result of this statute, the Attorney General will not deport an alien if the alien's federal conviction has been expunged under section 3607. See, e.g., Matter of Seda, 17 I. N. Dec. 550, 553 (BIA 1980). In addition, if a state enacts a statutory counterpart to section 3607, the Service will recognize the state expungement of state drug offenses.
We extend this rule to use of the guilty plea underlying the conviction, which is itself a significant adverse factor. See In re Seda, 17 I. N. Dec. 550, 550 (BIA 1980). Consideration of petitioner's guilty pleas to burglary and theft was not erroneous.
Petitioner carried the burden of establishing both his statutory eligibility and moral worthiness for voluntary departure. See Matter of Seda, 17 I. N. Dec. 550, 554 (BIA 1980). While the expunged conviction could not be the basis for disallowance, the extrinsic evidence underlying the conviction rendered petitioner statutorily ineligible for voluntary departure as a person lacking in good moral character.
Although the fact of his conviction should not preclude him from establishing statutory eligibility for the relief, we are of the opinion that the respondent is neither a person of good moral character nor a person who merits a favorable exercise of discretion. Gonzalez, 16 I N Dec. at 136-37; see In re Seda, 17 I N Dec. 550, 554 (1980) (conviction may be considered as an adverse factor under discretionary review). Accordingly, we hold that the BIA properly considered Mr. Oviawe's prior criminal convictions of moral turpitude as an adverse factor in exercising its discretion to deny Mr. Oviawe relief.