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.
These standards clearly exempted "plea plus probation" procedures found in many states — procedures in which a court suspends entry of a judgment, never entering such a judgment if the defendant successfully completes probation. See, e.g., Matter of Garcia, 19 I. N. Dec. 270 (BIA 1985) (no conviction since adjudication of guilt withheld); Matter of Seda, 17 I. N. Dec. 550 (BIA 1980) (same). These standards, however, did not clearly exempt Rhode Island's procedure — a procedure in which the defendant is "adjudged guilty" at the time he presents his plea.
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.
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.
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.
But the cases the BIA cited in support of this proposition make sense, and none involved only uncorroborated police reports. Some, for example, involved guilty pleas or other admissions. Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (guilty plea); White v. I.N.S., 17 F.3d 475 (1st Cir.1994) (guilty plea); Paredes–Urrestarazu v. I.N.S., 36 F.3d 801 (9th Cir.1994) (pre-trial diversion where defendant initially testified that friend told him he had drugs for sale); Parcham v. I.N.S., 769 F.2d 1001 (4th Cir.1985) (acknowledgment of participation in “violent demonstration” corroborated pending arson charges arising out of demonstration). Others concerned convictions with a judicial recommendation against deportation.
Forgery and possession of stolen property have long been considered to be crimes involving moral turpitude, and the respondent has presented no argument to the contrary. See, e.g., Matter of Serna, 20 I&N Dec. 579, 585 n.10 (BIA 1992) (citing Matter of Salvail, 17 I&N Dec. 19 (BIA 1979)); Matter of Seda, 17 I&N Dec. 550, 552 (BIA 1980) (citing Matter of A-, 5 I&N Dec. 52 (BIA 1953)), overruled on other grounds by Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). We find no clear error in the findings of fact that the Immigration Judge relied on in support of his determination regarding the respondent's removability.
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.
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).