First Drug Possession Convictions Occurring Before July 14, 2011
Can Still Be Erased By Expungement
In Lujan-Armendariz v. INS, 222 728 (9th Cir. 2000), the Ninth Circuit held that state rehabilitative relief from first-offense simple possession convictions was effective to eliminate all immigration consequences, by analogy to the Federal First Offender Act, 18 U.S.C. § 3607. While overruling Lujan prospectively, the Ninth Circuit continues to recognize state rehabilitative relief as erasing all immigration consequences of qualifying first controlled substances offenses, so long as the conviction occurred on or before July 14, 2011. (Nunez-Reyes v. Holder, ___ F.3d ___, 2011 WL 2714159 (9th Cir. July 14, 2011)(en banc).) This relief does not work for controlled substances convictions occurring on July 15, 2011, or afterwards.
Requirements for Relief
The following requirements must be met before state rehabilitative relief will eliminate the immigration consequences of first convictions of qualifying controlled substances offenses:
1. The conviction must have occurred on or before July 14, 2011. This means that the sentence must have been imposed on or before that date, since without a sentence, there is no conviction. (INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).)
2. The conviction must be for a first controlled substance offense. See 18 U.S.C. § 3607(a)(no FFOA rehabilitative relief if there was a prior state or federal controlled substances conviction or grant of first offender treatment – even if the prior first offender treatment did not result in a conviction). (DeJesus Melendez v. Gonzales, 503 F. 3d 1019 (9th Cir. 2007).) A prior conviction or first offender disposition will disqualify the defendant even if the drug involved in the prior drug offense is not on the federal controlled substances schedules, since a state or federal controlled substances prior will disqualify the defendant from FFOA treatment. (See 18 U.S.C. § 3607 (a).)
3. The conviction must be for simple possession of any controlled substance, or possession of drug paraphernalia, or, arguably, any other controlled substances conviction that is (a) less serious than simple possession, and (b) not penalized under federal controlled substances legislation. (See qualifying offenses below.)
4. Rehabilitative relief is effective to eliminate the adverse immigration consequences of qualifying convictions only in removal proceedings or other immigration proceedings in the Ninth Circuit. Nunez-Reyes, supra. If the noncitizen travels outside the Ninth Circuit within the United States, or attempts to return to the United States via a port of entry outside of the Ninth Circuit, the controlled substances conviction will still exist to trigger adverse immigration consequences despite state rehabilitative relief.
5. The rehabilitative relief must be generally similar to FFOA treatment, but need not be identical, and can be granted by the courts of any state or even foreign countries. (See Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001).)
6. The rehabilitative relief for a qualifying conviction may be granted after July 14, 2011; it is the conviction itself that must occur on or before that date for this relief to be effective after Nunez-Reyes.
7. The defendant must not have violated probation for this relief to be effective. (Estrada v. Holder, 560 1039 (9th Cir. 2009).) In the alternative, this relief should be held to be effective, despite a violation of probation, so long as the defendant was under 21 years of age at the time of the commission of the offense, since a FFOA dismissal under 18 U.S.C. § 3607(c) does not have a probation-violation disqualification in the language of the statute, so Estrada is distinguishable on the plain language of the FFOA statute.
Only two offenses clearly qualify for this type of relief under current law:
1. Simple possession of any controlled substance at all. This includes possession of controlled substances even if simple possession is considered an aggravated felony. This is because the FFOA applies to possession of all federally listed controlled substances without exception. See 18 U.S.C. § 3607.
2. Possession of drug paraphernalia. E.g., California Health & Safety Code § 11364. (Cardenas–Uriarte v. INS, 227 F .3d 1132 (9th Cir. 2000)(possession of drug paraphernalia qualifies for FFOA treatment).)
One other minor controlled substances offense clearly no longer qualifies for this type of relief under current law:
3. Being under the influence of a controlled substance. E.g., California Health & Safety Code § 11550(a).) (Nunez-Reyes v. Holder, ___ F.3d ___, ___ n.3 (9th Cir. July 14, 2011)(en banc), overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010). )
It was previously believed that any first controlled substance offense that was (a) less serious than simple possession, and (b) not forbidden under federal controlled substances legislation, would qualify for FFOA treatment along with simple possession of a controlled substance and possession of paraphernalia. Prior to the decision in Nunez-Reyes, the secondary literature in the area unanimously agreed that this general rule was inferable from the Cardenas reasoning, and the following minor offenses would therefore be safe dispositions assuming Lujan expungements would be available:
(4) being under drug influence in public,
(5) driving under the influence of drugs,
(6) visiting a place where drugs are used, and
(7) any other first conviction of a controlled substance offense that is (a) more minor in potential punishment than first-offense simple possession, and (b) not expressly forbidden under federal controlled-substances statutes.
This is because the same reasoning that led the Ninth Circuit to extend Lujan to cover possession of paraphernalia, also leads to the same conclusion for these other minor offenses.
On the other hand, the Ninth Circuit en banc in Nunez-Reyes contradicted this reasoning with respect to the misdemeanor of being under the influence of drugs, in violation of California Health & Safety Code § 11550(a), so this reasoning must be regarded as an open question.
N. Tooby, Ninth Circuit Overrules Lujan-Armendariz Prospectively Only, So State Rehabilitative Relief For First-Offense Drug Possession Convictions No Longer Eliminates Immigration Consequences Of Convictions Occurring After July 14, 2011, CRIMES & IMMIGRATION LAW ENEWSLETTER (June 2011).
N. TOOBY, CALIFORNIA POST-CONVICTION RELIEF FOR IMMIGRANTS § 10.16 (2d ed. 2009)
K. BRADY, ET AL., DEFENDING IMMIGRANTS IN THE NINTH CIRCUIT: IMPACT OF CRIMES UNDER CALIFORNIA AND OTHER STATE LAWS § 8.46, p. 8-104 (10th Ed. 2008)
CALIFORNIA CONTINUING EDUCATION OF THE BAR, CALIFORNIA CRIMINAL LAW PROCEDURE AND PRACTICE § 52.14, p. 1721 (2011).
Law Offices of Norton Tooby & Immigrant Legal Resource Center, California Criminal Immigration Law Seminar, San Francisco, Oct. 22, 2011, Los Angeles, Nov. 5, 2011
1 Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), held that a California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code § 11550(a), was eligible for the same immigration treatment under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), as those convicted of first-offense drug possession under the Federal First Offender Act, 18 U.S.C. § 3607. Nunez held that Lujan did not apply to this type of offense.
2 See, e.g., N. TOOBY, CALIFORNIA POST-CONVICTION RELIEF FOR IMMIGRANTS § 10.16 (2d ed. 2009); K. BRADY, ET AL., DEFENDING IMMIGRANTS IN THE NINTH CIRCUIT: IMPACT OF CRIMES UNDER CALIFORNIA AND OTHER STATE LAWS § 8.46, p. 8-104 (10th Ed. 2008); CALIFORNIA CONTINUING EDUCATION OF THE BAR, CALIFORNIA CRIMINAL LAW PROCEDURE AND PRACTICE § 52.14, p. 1721 (2011).
3 California Penal Code § 647(f) (drugs).
4 California Vehicle Code § 23152(a) (forbidding driving under the influence of alcohol, drugs, or the combined influence of alcohol and drugs).
5 California Health & Safety Code § 11365.
6 This may include such offenses as prescription violations, possession of a needle under the Business and Professions Code, and the like, so long as (a) the punishment is more minor than simple possession, which, under California Health & Safety Code § 11350, is punishable by a maximum of three years in state prison, and (b) is not forbidden under federal controlled substances law. A list of the controlled substances offenses forbidden under federal law may be found at N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS, Appendix D (2007). See Cardenas, supra.
7 See Cardenas, supra.