(F)  Foreign Rehabilitative Relief.  The BIA found a foreign expungement in Italy ineffective to avert excludability.[181]  The Ninth Circuit, however, has held that equal protection requires the BIA and federal courts to honor a foreign expungement where the defendant would have been eligible for an expungement under the Federal First Offender Act if the case had been prosecuted in federal court, and that FFOA expungement would have been effective to eliminate a federal conviction for immigration purposes.[182]  Congress provided a prior state or federal conviction relating to a controlled substance disqualified a person from FFOA relief, but failed to do so for a prior conviction under foreign law. [183]  See § 6.14, infra. 

[181] Matter of B, 7 I. & N. Dec. 166 (BIA 1956); Matter of G, 5 I. & N. Dec. 129 (BIA 1953).

[182] Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001)(British expungement honored); see also Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (holding that state court expungements are effective to eliminate the immigration effects of first-offense simple drug possession convictions where the defendant would have been eligible under the Federal First Offender Act); but see Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc) (reaffirming BIA rule that 1996 IIRAIRA definition of “conviction” eliminated the effectiveness of expungements to negate immigration effects for all categories of crimes and rejecting equal protection argument relied upon by the Ninth Circuit regarding first-offense minor controlled substances offenses); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n.8 (4th Cir. 2001) (foreign conviction allegedly expunged).

[183] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 4.27(A)(3) (2005).

Other

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.