Under Lujan-Armendariz, is a noncitizen protected from deportation based on a conviction during the time he or she waits to be able to withdraw the plea pursuant to state rehabilitative relief? The Ninth Circuit observed in Lujan-Armendariz that the history and purpose of the FFOA strongly suggests that the person should be protected during this period. However, the majority in the panel opinion in Chavez-Perez v. Ashcroft held that under the Oregon expungement statute at issue, a conviction that would have qualified for Lujan-Armendariz treatment once it was expunged continued to exist for immigration purposes until the expungement was granted. Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004). Mr. Chavez-Perez was a first-time possession offender who was brought into removal proceedings when he still had a few years of probation to complete before he would be able to expunge his conviction. The majority ordered his removal, despite the fact that, once granted, the expungement would have eliminated the conviction for immigration purposes. The majority stated that it was ruling only on the type of expungement statute at issue in the case, in which relief after completion of probation is granted as a matter of discretion by the convicting court and is not mandated by the court at the time of plea. (See Or. Rev. Stat. 137.225(1)(a), (3).) The opinion left open the possibility that Lujan-Armendariz protection will apply pending dismissal of charges in the case of a deferred adjudication, or other disposition where a court orders that charges will be dismissed upon completion of probation.



     Strategy. The only guarantee to obtaining effective Lujan-Armendariz protection is to secure rehabilitative relief that eliminates the conviction before a removal order has become final. If this does not happen, defense strategy will depend upon the type of state rehabilitative relief that is potentially available. Under Chavez-Perez, protection is not afforded by an expungement, set-aside or vacatur, like that set out in Ore. Rev. Stat. 137.225, where judgment was imposed and could be subsequently eliminated as a matter of discretion under a separate general expungement statute. In contrast, advocates have a strong argument, although no on-point authority, that a disposition in a deferred adjudication, or pursuant to a statute where automatic dismissal after completion of probation is contemplated at the time of conviction, is not a conviction for immigration purposes during the waiting period. See discussion in the dissent in Chavez-Perez.



     Immigration counsel should try to distinguish the state vacatur statute at issue from Ore. Rev. Stat. 137.225(a)(1), (a)(5), or contest the holding in Chavez-Perez. During this litigation, if the expungement becomes available counsel should obtain it, and obtain remand and reopening if possible. Criminal defense counsel may be able to create a record that assists in this argument by adding language to the criminal disposition that strengthens the expectation that compliance with conditions of probation "will" or "shall" result in dismissal e.g., an agreement that such a motion will be unopposed.



     Analyzing state statutes. Counsel should examine the state statute at issue to determine whether it falls within Chavez-Perez, and to identify arguments that it does not. Chavez-Perez ruled on an order granted under Ore. Rev. Stat. 137.225(1)(a), (3), which allows for the record of conviction to be set aside after completion of three years probation. Section 137.225 is a generic statute, separate from the conviction procedure, which permits any defendant with a conviction within various classes to apply to the court to set aside the conviction. ORS 137.225(1)(a), (5). The dismissal is not mandatory: the court may consider evidence and testimony and decide if a set-aside is warranted. ORS 137.225(3).



     To take California statutes as an example, a deferred entry of judgment under Calif. PC 1000 clearly does not come within the Chavez-Perez ruling. Relief is mandatory: California Penal Code 1000.3 provides that upon successful completion of probation, the court "will" dismiss the charges. Although a guilty plea is taken, the statute explicitly provides that there never is a conviction for state purposes as long as the defendant successfully completes probation.



     Several states have programs that provide for automatic drug counseling and probation rather than jail for first-time offenders. Counsel should check the particular state statute to determine whether it contains language mandating dismissal of the case upon successful completion of probation. This is the case with the "Prop 36" drug counseling program in California under Calif. Penal Code 1210, which provides that, if a nonviolent drug possession offender complies with mandatory treatment and probation, the conviction "shall" be set aside, and the indictment "shall" be dismissed. This dismissal of the charge against a person sentenced under 1210.1 is anticipated at time of judgment and sentencing. The government may argue that 1210.1 should be controlled by Chavez-Perez since the disposition is termed a "conviction." However, Chavez-Perez turned on the requirement that there be a legal order mandating the dismissal of charges following probation, which here is provided in the section under which the plea is taken.



     Where possible, criminal defense counsel should obtain an order from the court at plea acknowledging that the plea and charges will be withdrawn upon successful completion of probation under the applicable section. Where that did not happen, however, these dispositions should still meet this Chavez-Perez requirement. A statutory mandate that a guilty plea taken under the section "will" be withdrawn upon completion of probation should be held to be at least the legal equivalent of a court order to that effect.



In California, Penal Code 1203.4 is a general expungement statute. The government will assert that 1203.4 comes within Chavez-Perez because, like the Oregon statute at issue there, 1203.4 can apply to a variety of offenses and is not incorporated into the section under which the defendant pleads guilty to simple possession. Unlike the Oregon statute, however, PC 1203.4 provides automatic, not discretionary, relief: it provides that a court must dismiss a plea to a qualifying offense if probation is successfully completed. Although the withdrawal of plea is not incorporated into the section under which the defendant pleads guilty, as it is in Calif. Penal Code 1000 and 1210.1, supra, California law still provides, from the moment of plea to a qualifying offense, that the defendant is automatically entitled to expungement upon completion of probation. In contrast, under Or. Rev. Stat. 137.225(3) the court may decide to grant the order if it determines that circumstances warrant; see also Wash. Rev. Code 9.94A.640 or 9.96.060, providing that the court may grant relief.



     Even if 1203.4 were held to come within the Chavez-Perez bar, it still could present a defense advantage in a situation where counsel was able to bargain for a short period of probation at sentencing, or to close probation early, so that an expungement could be obtained quickly. Then the noncitizen will have the sure protection of actually having the expungement, rather than merely having a strong argument that, e.g., a deferred entry of judgment ought not to be considered a conviction during the mandated probationary period before the plea will be withdrawn.



     The best possible option to protect a noncitizen defendant from exposure to removal is an informal or formal arrangement for a deferred prosecution, where the case is continued while the defendant fulfills certain conditions, with the understanding that the prosecution will consider dropping the charges based on good performance. Then there never is a conviction.