Prior Juvenile Dispositions Arguably Do Not Disqualify Noncitizens From Effective FFOA Treatment Under Lujan
If a noncitizen has a first adult conviction of simple possession of a controlled substance, or any other such conviction of a qualifying offense, there is an argument that prior juvenile dispositions for controlled substances offenses should not disqualify the noncitizen from effectively eliminating adverse its immigration consequences under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). This would eliminate all adverse immigration consequences of such a conviction if he or she can obtain a simple rehabilitative expungement of this conviction under Penal Code § 1203.4(a). There are a number of potential problems with this argument, which are addressed below, but each has an answer. It is therefore at least arguable that the prior juvenile dispositions do not disqualify the noncitizen from receiving the benefits of the Lujan doctrine for convictions occurring on or before July 14, 2011.
Unless the client resides in the Ninth Circuit, however, or is somehow otherwise placed in removal proceedings in the Ninth Circuit, this argument will not prevail. No other circuit has agreed with this approach. As the Ninth Circuit recognized, when overruling this doctrine prospectively:
Our sister circuits have consistently rejected our position. See Wellington v. Holder, 623 F.3d 115, 120–22 (2d Cir.2010) (per curiam), cert. denied, ––– U.S. ––––, 131 S.Ct. 2960, 180 L.Ed.2d 245 (2011); Danso v. Gonzales, 489 F.3d 709, 716–17 (5th Cir.2007); Ramos v. Gonzales, 414 F.3d 800, 805–06 (7th Cir.2005); Resendiz–Alcaraz v. U.S. Att'y Gen., 383 F.3d 1262, 1271–72 (11th Cir.2004); Elkins v. Comfort, 392 F.3d 1159, 1162–64 (10th Cir.2004); Acosta v. Ashcroft, 341 F.3d 218, 224–27 (3d Cir.2003); Vasquez–Velezmoro v. INS, 281 F.3d 693, 697–98 (8th Cir.2002); cf. Herrera–Inirio v. INS, 208 F.3d 299, 304–09 (1st Cir.2000).
(Nunez–Reyes v. Holder, 646 F.3d 684, 699 n.4 (9th Cir.2011) (en banc).)
This means, in addition, that even if the client receives state rehabilitative treatment, and succeeds in convincing the immigration courts and the Ninth Circuit that the conviction’s immigration consequences have been eliminated under the Lujan doctrine, this result only obtains within the Ninth Circuit. If the client leaves the United States, for example, and returns via a Port of Entry in another circuit, the immigration courts in that jurisdiction would regard the expunged conviction as still in existence to trigger all applicable adverse immigration consequences.
The arguments, even in the Ninth Circuit, are as follows.
First, the Ninth Circuit has recently overturned Lujan-Armendariz, eliminating the rule that an expungement removes the adverse immigration consequences, including inadmissibility, of a first state conviction of possession of a controlled substance. Nunez–Reyes v. Holder, 646 F.3d 684, 691–92 (9th Cir.2011) (en banc). However, this decision expressly applies prospectively only to convictions occurring after July 14, 2011. The doctrine remains effective for all convictions before the date of that decision.
Second, the doctrine is effective if the client did not violate the terms of probation. 18 U.S.C. § 3607(a); Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir.2009). If the client violated probation, however, by being arrested during the probationary period, he or she cannot obtain relief under 18 U.S.C. § 3607(a). (Ibid.) The Ninth Circuit held that a noncitizen could not take advantage of the Lujan rule for a first conviction if he had violated the terms of his probation in that case. See 18 U.S.C. § 3607(a) (allowing for dismissal of proceedings, either during or at the end of a period of probation, “if the person has not violated a condition of his probation”). Accordingly, the subsequent expungement of a conviction under Cal.Penal Code § 1203.4 does not eliminate its immigration consequences under those circumstances. See Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir.2009); see also Nunez–Reyes, 646 F.3d at 713 (“[P]ersons who received the benefit of a state expungement law were not subject to deportation as long as they could have *670 received the benefit of the FFOA if they had been prosecuted under federal law.”) (emphasis in original) (citation and quotations omitted).
It is true that a violation of probation bars FFOA dismissal under 18 U.S.C. § 3607(a) for the reason given. Many clients, however, committed their first adult controlled substances offense while under the age of 21 years. Those people qualify for an effective FFOA expungement under the separate ground defined in 18 U.S.C. § 3607(c), which requires merely that the offender must have committed the offense while under the age of 18 years, and which makes no reference to any probation violation bar. There are no reported cases as yet on this theory, but the plain language of the FFOA dictates this result, so the argument appears convincing.
The more difficult question is whether the Lujan doctrine can benefit those who were arrested and prosecuted in juvenile court, for prior controlled substances offenses. Assuming these were adjudicated in juvenile court as civil juvenile delinquency matters, and did not result in adult criminal court convictions, counsel can argue that they do not disqualify the client from effective FFOA treatment for a number of reasons.
These proceedings did not result in criminal “convictions” under federal immigration law. Juvenile delinquency dispositions that occur in juvenile court are not considered to be criminal convictions, and thus do not trigger any conviction-based ground of deportation.  Congress knows how to attach conviction consequences to adjudications of juvenile delinquency when it wishes to do so. For example, Congress recently provided, with respect to a specific new statute, that “The term `convicted’ or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only under limited conditions.  Because the juvenile court dispositions do not constitute “convictions,” they therefore did not bar the client from receiving FFOA treatment. If he or she can obtain an expungement under Penal Code § 1203.4, the immigration consequences of his first adult controlled substance conviction will be eliminated.
It may be difficult or even impossible to obtain an expungement under Penal Code § 1203.4(a) if the client violated probation. This statute, however, expressly allows a defendant to obtain this relief, despite violating probation, because it also allows discretionary expungements in the interests of justice (Ibid.) Penal Code § 1203.4, however, also authorizes discretionary expungement “in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section . . . .” [Emphasis supplied.] Since due process requires the accused be given the benefit of every reasonable doubt concerning the interpretation of a statute, this statute must be interpreted as authorizing discretionary expungement even for cases in which the technical requirements are not met -- such as where the defendant has violated a condition of probation, so long as the court finds that the interests of justice will be served by granting the expungement. See § 10.55, infra. This expungement, however, is not effective to eliminate a controlled substances, conviction for immigration purposes. See § 10.9, supra.
Thus, even where the defendant did not comply with the conditions of probation during the entire period of probation, or receive early termination of probation, s/he is nonetheless eligible for a discretionary grant of expungement under this section. If there has been one or more probation violations and reinstatements, followed by thereafter successful completion of probation, the court still has discretion to grant an expungement.
Fourth, the Federal First Offender Act’s two bars for prior criminal proceedings do not apply here to prevent effective Lujan treatment. The FFOA provides:
If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844)--
(1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and
(2) has not previously been the subject of a disposition under this subsection;
the court may, with the consent of such person, place him on probation for a term of not more than one year without entering a judgment of conviction.
(18 U.S.C. § 3607(a).) Because the juvenile court dispositions do not constitute “convictions,” they do not trigger the bar in § 3607(a)(1). Because Mr. Marmolejo did not receive first offender treatment in juvenile court, they do not trigger the bar in § 3607(a)(2). A federal juvenile disposition in a drug case would not have been considered “a disposition under this subsection,” so a state juvenile disposition likewise should not trigger this bar.
In de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. September 19, 2007), however, the Ninth Circuit held that a California pretrial diversion grant in adult court triggered the previous first offender treatment bar to FFOA treatment. It reasoned:
But because Petitioner's 1999 conviction was under state law, he cannot prevail merely by parsing the language of the FFOA, which by its terms does not apply to state convictions. Rather, the question *1026 is whether equal protection principles demand that the BIA have treated his 1999 expungement as an FFOA disposition even though he had previously received leniency in the form of the 1996 pretrial diversion.
We are persuaded they do not. As this court has previously held, participation in California's pretrial diversion program is not irrelevant for immigration purposes. Paredes-Urrestarazu, 36 F.3d at 810-11 (holding that even after an alien receives pretrial diversion under California's pre-1997 scheme, the BIA may consider the underlying arrest in considering whether to grant discretionary relief from deportation). Moreover, because it is a federal actor, the BIA need only have a rational basis for classifications based on alienage. Mathews v. Diaz, 426 U.S. 67, 83, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). In Garberding, we held it was irrational to deny FFOA treatment to a first-time simple possession offender who received expungement under a state scheme simply because the state scheme would also have allowed expungement for many offenders ineligible for FFOA treatment. 30 F.3d at 1190-91. Because the particular petitioner in Garberding would have been eligible for FFOA treatment, it was irrational to deny her relief simply because more serious offenders could also have received the same expungement. Garberding, therefore, requires distinctions to be based on conduct, not on the procedural niceties of the expungement scheme. See id.; Lujan-Armendariz, 222 F.3d at 741.
But Garberding is easily distinguished here. Even without a guilty plea on the 1996 charge, Petitioner simply was not similarly situated to a first-time offender. Before the 1999 conviction, he had been arrested for a controlled substance violation, which apparently had enough of a factual basis for him to submit to diversion under the California scheme. Indeed, Petitioner does not contend that the charge was baseless. Although Petitioner argues he would have been motivated to accept diversion even if he had not committed the underlying offense, we think it remains rational to believe that someone who was arrested for drug possession, charged, and then sent to a diversion program in lieu of prosecution had in fact committed a drug offense. Indeed, diversion could not have resulted if the state judge had found it would not “benefit” Petitioner, CAL. PENAL CODE § 1000.2 (West 1996), which further confirms that the 1996 charge had a factual basis. Moreover, even the diversion program itself was something of a one-bite affair, as Petitioner would have been ineligible had he received diversion on another charge within the preceding five years. Id. § 1000(a)(5).
Therefore, we hold that equal protection principles did not require the BIA to ignore the 1996 diversion program. Because Petitioner was allowed to avoid criminal consequences for the 1996 charge and the 1999 conviction, the BIA properly could regard him as someone who had received two bites at the ameliorative apple, instead of the one bite allowed by the FFOA. The distinction made by the BIA here is not based on procedural quirks in a state rehabilitative scheme, but rather on the conduct of the alien himself. Equal protection requires no more.FN4
FN4. We recognize that language in Lujan-Armendariz could be read to compel a contrary result. There, we stated that “persons whose offenses would qualify for treatment under the [FFOA] but who are convicted and have their convictions expunged under state laws may not be removed on account of those offenses.” 222 F.3d at 732. In Lujan-Armendariz, however, both petitioners had committed only one offense, and the question presented was simply whether the rule in Garberding survived even after Congress enacted a statutory definition of “conviction” as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Id. at 732-33. Because we had no occasion to consider the effect of offenses prior to the conviction that was eventually expunged, Lujan-Armendariz does not control the result here.
*1027 As a result, even without a guilty plea on the 1996 charge, the BIA properly concluded that Petitioner's participation in pretrial diversion means that his subsequent conviction in 1999 retained immigration consequences even after it was expunged, thereby barring him from adjustment of status.
(Id. at 1025-1027.) This reasoning might be applied to the juvenile prior civil adjudications of delinquency, since the court here looked at the previous drug offense conduct. On the other hand, however, Mr. Marmolejo did not receive any prior first offender treatment under any law. He had not “received two bites at the ameliorative apple, instead of the one bite allowed by the FFOA.” (Id. at 1026.) This could go either way in the Ninth Circuit.