the divorce had not been pronounced until May 10, 1968, approximately 15 months afterward. Citing Matter of Valerio, Interim Decision 2489 (BIA 1976), he concluded that the provisions of Article 17 of the Civil Code of the Dominican Republic had not been met. This article includes the requirement that in a divorce for cause, the plaintiff must appear at an office of the Civil Registry to have the divorce pronounced and judgment registered, and that all this must take place within two months of the date of the judgment. The District Director found that the petitioner's first husband did not register the divorce within two months and that this rendered the divorce invalid. The petitioner was consequently not free to marry the present beneficiary.

Before we begin our discussion of the merits of this case, there are several issues that need to be clarified. In his decision, the District Director relied upon Matter of Valerio, id. What was not mentioned in his decision was the fact that in a later case this Board characterized Valerio and Matter of Tagle, Interim Decision 2476 (BIA 1976) as dicta on the issue of pronouncement of divorces. Matter of Gonzalez, Interim Decision 2575 (BIA 1977). We have concluded that this characterization of the holdings of both cases was inaccurate. We have also concluded that the interpretation of Dominican law set forth in Valerio, supra, was correct, and that the appearance/pronouncement dichotomy established in Gonzalez, supra, was incorrect. We therefore recede from the holding in Gonzalez, id., to the extent that it concerns appearance and pronouncement of Dominican divorces involving divorce actions for cause, and reaffirm Valerio and Tagle, supra.

Turning to the case at hand, it is clear therefore that the District Director applied the correct interpretation of law for divorces for cause. If there were a divorce for cause, then, we would have no quarrel with the end result. This, however, may not be a divorce for cause; it may be a divorce based upon mutual consent. The translation of the divorce document considered by the District Director is almost incomprehensible and the petitioner should have been required to provide a more intelligible translation at the outset. But this problem aside, it is possible that the terminology used in that translation was inaccurate. We have reached this conclusion after referring to the translation of the divorce offered on appeal. This translation is considerably more lucid; but more importantly, it indicates that the divorce may have been by mutual consent under the provisions of Law 1306-bis On Divorce, specifically Chapter IV, Articles 26 through 32. This result is also apparently indicated by the terminology used in the pronouncement document. If this is the case, the requirements for a mutual consent divorce, not a divorce for cause, are at issue here. If they have been met, then the divorce was valid under Dominican law.

In cases in which we have previously discussed this issue, we have

held that the two-month pronouncement requirement was not applicable to mutual consent divorces. Chapter IV, cited above, makes no provision for a penalty for failure to have a divorce pronounced in such cases. In fact, personal appearance for pronouncement is not necessary in mutual consent divorces. Matter of Tagle, supra; Matter of Guzman, Interim Decision 2484 (BIA 1976). We have thus accepted an interpretation which holds that in a mutual consent divorce, which has met the other statutory requirements of Dominican law, and which would be recognized in the marrage jurisdiction, failure to pronounce the divorce will not cause it to be considered invalid.1

In this instance, therefore, because the District Director may not have had an adequate opportunity to consider the possibility that this was a mutual consent divorce, we will remand the record to him, including the translation which was offered on appeal. After this new information is considered, a new decision should be entered in the case. ORDER: The record is remanded to the District Director for further proceedings consistent with the foregoing opinion and the entry of a new decision.

FURTHER ORDER: Should a decision be adverse to the petitioner, an appropriate order shall be entered and the record shall be certified to us for review.

'This interpretation coincides with the views expressed in Forscher, Haitian Dominican Laws On Divorce Evaluated, New York Law Journal, October 20, 1971, Volume 166, and by the State Department's Visa Office in its Operations Memorandum, January 29, 1975, to the United States Embassy, Santo Domingo.

MATTER OF KANEDA

In Deportation Proceedings

A-22205731

Decided by Board February 28, 1979

(1) Virginia Code Section 18.2-251 is a counterpart to the Federal First Offender Statute, 21 U.S.C. 844(b)(1); and a marihuana charge dismissed pursuant to such a statute may not be used as a basis for deportability under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11).

(2) The test for whether a state statute constitutes a counterpart to the Federal First Offender Statute is whether it complies with the Congressional intent to give an offender a second opportunity without the conviction remaining for some state purpose. (3) The time a respondent was incarcerated prior to the dismissal of the charge is not determinative on the issue of whether a drug charge was properly dismissed pursuant to a state first offender statute.

(4) Defeating deportability is a permissible purpose of a state first offender statute. Rehman v. INS, 544 F.2d 71 (2 Cir. 1976).

(5) Absent a showing of lack of jurisdiction, a Virginia State trial judge's order rescinding sentence, and placing an alien under probation on condition he serve and pay the previously imposed sentence, and that on completion the charge would be dismissed pursuant to Virginia Code Section 18.2-251, as a first offender, followed by a later order dismissing the charge, had the effect of defeating deportability based on that conviction. (6) Lack of jurisdiction to dismiss a criminal charge after conviction must be affirmatively shown. Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA 1963).

CHARGE:

Order: Act of 1952-Section 241(a)(11) [8 U.S. C. 1251(a)(11)]—Convicted of possession of marihuana

ON BEHALF OF RESPONDENT:

Elihu S. Massel, Esquire

122 E. 42nd Street

New York, New York 10017

ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent appeals from a decision by the immigration judge dated May 15, 1978, finding the respondent deportable under section

241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11), as an alien convicted of possessing marihuana under the law of the State of Virginia and denying him the privilege of voluntary departure. The appeal will be sustained and the deportation proceedings will be terminated.

The respondent is a 21-year-old native and citizen of Japan who entered the United States on September 3, 1976, as a nonimmigrant student in order to attend Syracuse University. On February 25, 1977, he was arrested by Virginia authorities, while he was riding an Amtrak train, for possession of approximately 4,448 grams of marihuana. On July 29, 1977, he pleaded guilty to a misdemeanor charge of possession of marihuana in violation of Virginia Code Section 18.2-248. He was then sentenced to a term of 12 months confinement in the county jail, four months of which were suspended, as well as a fine (Ex. 2).

On October 28, 1977, the same Virginia judge entered an order rescinding the respondent's sentence, placing him under probation on the condition that he serve and pay the previously imposed sentence and fine, and providing that upon completion of the jail term the marihuana charge would be dismissed pursuant to Virginia Code Section 18.2-251, the State's first offender statute. On August 15, 1978, the Virginia judge entered an order dismissing the charge against the respondent pursuant to Virginia Code Section 18.2-251.

The first issue we must address in this case is whether the Virginia statute is a counterpart to the Federal First Offender Statute, 21 U.S.C. 844(b)(1). In Matter of Werk, Interim Decision 2589 (BIA 1977), we held that when a conviction has been expunged under the provisions of a state statute that is the counterpart of 21 U.S.C. 844(b)(1), that conviction may not be used as a basis for deportability under section 241(a)(11) of the Act. In Werk, we extended to expungements under first offender statutes the same rationale we had previously applied to expungements of convictions pursuant to the Federal Youth Corrections Act (18 U.S.C. 5010, et seq.) and its state counterparts. See Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974); Matter of Andrade, 14 I. & N. Dec. 651 (BIA 1974). The rationale behind the above statutes was to give qualifying offenders a second opportunity to lead law-abiding lives and that discharge and dismissal under such statutes shall not be deemed conviction of a crime. See H.R. Rep. No. 91-1444, 91st Cong., 2nd Sess., 1970 U.S. Code Cong. & Admin. News 4566, at 4616.

The test for whether the Virginia statute constitutes a counterpart to the Federal First Offender Statute is whether it complies with the Congressional intent to give an offender a second opportunity without having the conviction remain for some state purpose. Thus, in Matter of Varagianis, Interim Decision 2537 (BIA 1976), we rejected a respondent's argument that a New Hampshire statute was a counterpart to the

Federal statute because under the New Hampshire law the expunged conviction could be subsequently considered for sentencing in a later conviction and, therefore, the conviction was still operative for some state purpose.

Another limitation on the effectiveness of an expunged conviction for removing deportability is where such expungement is available to all convicts and not limited to a small class such as youthful or first offenders as in the Federal statutes. See Matter of Moeller, Interim Decision 2543 (BIA 1976).

After reviewing the Virginia statute we conclude that it is the counterpart to 21 U.S. 844(b)(1). Like the Federal statute the class of offenders eligible for discharge under Virginia Code Section 18.2-251 is limited to first offenders. The operative language in both statutes is very similar. Both statutes state that an offender can only use the statute once, and do not provide for any of the other collateral consequences that would normally folllow a conviction under another statute. See Appendix A.

The second issue we must address is whether the Virginia judge actually complied with the Virginia statute. The Service contends that under the dismissed charge the respondent was incarcerated longer than he would have been under the July 29, 1977, sentence. The Service further points out that the wording of the October 28, 1977, order explicitly stated that the conviction was rescinded and the charges dismissed "for purposes of any deportation proceeding". Thus, the Service contends that the trial judge's action only constituted a recommendation against deportation under section 241(b) of the Act, 8 U.S.C. 1251(b), which is unavailable to those convicted of a drug offense. See generally, Appleman, The Recommendation Against Deportation, 58 A.B.A.J. 1294 (1972). Finally, the Service contends that the respondent was ineligible for first offender treatment because his July 29, 1977, guilty plea was a prior conviction.

The time which the respondent had to spend incarcerated as a result of the trial judge's order is not determinative against the respondent. Altogether the respondent was incarcerated for five and a half months. The respondent in Andrade served two years in a California Youth Authority institution. See Matter of Andrade, supra, at 654. Neither is the fact that the judge intended to defeat the respondent's deportation relevant to this case. In Rehman v. INS, 544 F.2d 71 (2 Cir. 1976), the court specifically stated that defeating deportability was a permissible purpose of a state first offender statute. 544 F.2d at 75.

The final argument of the Service that the trial judge lacked jurisdiction to give the respondent first offender treatment is also defective. The trial judge specifically rescinded the respondent's conviction in his October 28, 1977, order. We have held that where a conviction is revoked