Aggravated felony convictions that were eliminated under state rehabilitative statutes without any claim of legal invalidity will generally continue to exist for immigration purposes.  See § 6.12, infra.  The Federal First Offender Act provides for withholding judgment, followed by dismissal, for first convictions in federal court of simple possession of any controlled substance.  After dismissal, this disposition shall not be used against the defendant for any purpose whatsoever, which includes immigration purposes.  See § 6.13, infra.  The Ninth Circuit has held that equal protection requires the same treatment be afforded to state and foreign rehabilitative relief where the defendant would have qualified for Federal First Offender Act treatment if prosecuted in federal court.  See § 6.14, infra.

 

Fourth Circuit

POST CON RELIEF"CONVICTION"EXPUNGEMENT INEFFECTIVE
Dung Phan v. Holder, 667 F.3d 448 (4th Cir. Feb. 1, 2012) (District of Columbia conviction of distribution of cocaine constituted a conviction of a drug trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of triggering a permanent statutory bar to showing good moral character, for purposes of naturalization, since the courts order setting aside the conviction, under the District of Columbia Youth Rehabilitation Act, D.C.Code 24"906(e), was done for rehabilitative goals, which do not bar the use of the conviction in the immigration context).

Fifth Circuit

POST CON RELIEF " CONVICTION " EFFECTIVE ORDER VACATING CONVICTION
Gaona-Romero v. Gonzales, 497 F.3d 694, 649 (5th Cir. 2007) (after Disipio was decided, "[t]he government undertook a policy review to determine how removal cases arising in the Fifth Circuit that involve vacated convictions should be treated. The government concluded that it would not seek that removal decisions be upheld pursuant to Renteria, but rather would request remand to the BIA so that the government could take action in accord with Pickering."); citing Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005) (remanding case in which criminal conviction had been vacated on a ground of legal invalidity to the Board of Immigration Appeals to allow for dismissal of removal proceedings in accordance with Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (convictions vacated for procedural or substantive defects will not be considered a valid convictions for immigration purposes)). Note: Since Gaona, the BIA has not issued a published opinion on the issue, but has consistently applied Pickering to cases arising in the Fifth Circuit, holding that a vacated conviction may not be used as conviction under the INA so long as the vacatur is unrelated to immigration or rehabilitative reasons. See In Re Alexis Ruiz Alvarez, A205 653 283 - CLE, 2013 WL 3200544 (BIA June 4, 2013) (the United States Government, through the Department of Justice's Office of Immigration Litigation, has advised the Fifth Circuit that it would not seek to uphold removal orders premised upon an application of Renteria-Gonzalez As such, this Board evaluates the effect of a vacatur under the rubric set forth in Matter of Pickering.); see also In Re Son Hoang Nguyen, A097 683 305 - DAL, 2013 WL 2608424 (BIA May 16, 2013); In Re Francisco Flores Alcala A.K.A. Francisco Flores A.K.A. Francisco Alcala Flores, : A200 762 691 - DAL, 2013 WL 2610047 (BIA May 9, 2013); In Re Sergio Gustavo Rangel-Juarez, A038 829 107 - EL, 2012 WL 3276562 (BIA July 16, 2012); In Re Daniel Sierra, : A074 026 895 - LOS, 2011 WL 2470936 (BIA June 1, 2011) (we conclude that the respondent's motion should be adjudicated in accordance with this Board's decisions in Matter of Pickering.); In Re Hugo Angel Robles A.K.A. Hugo Gonzalez Robles, A087 021 860 - HOU, 2011 WL 400460 (BIA Jan. 19, 2011). Regarding its consistent application of Pickering over Renteria-Gonzalez in the Fifth Circuit, the BIA has explained, We observe that, in certain circumstances, a federal court may defer to an agency's interpretation of a statute which is within the agency's jurisdiction to administer even if the agency's interpretation is inconsistent with the jurisprudence of that court. In Re: Francisco Flores Alcala A.K.A. Francisco Flores A.K.A. Francisco Alcala Flores, A200 762 691 - DAL, 2013 WL 2610047 (BIA May 9, 2013) (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)). Thanks to Amber L. Weeks.

POST-CON RELIEF - EFFECTIVE VACATUR - FIFTH CIRCUIT
Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (court recognizes the DHS will follow Pickering even in the Fifth Circuit: "we vacated the Discipio I opinion because the Government modified its position and terminated deportation proceedings against Discipio because his conviction had been vacated on procedural and substantive defects, the Government bowing to the BIA's opinion in In re Pickering.FN10 See Discipio II, 417 F.3d at 449-50.")

Seventh Circuit

CONVICTION - DEFERRED ADJUDICATION - GEORGIA FIRST OFFENDER ACT DISPOSITION CONSTITUTES CONVICTION
Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22, 2006) (per curiam) (Georgia conviction of two counts of child molestation under Georgia First Offender Act, O.C.G.A. 42-8- 60, et seq., which allows a first-time felony offender to be placed on probation (or be sentenced to confinement) and serve out that probation or confinement without receiving an adjudication of guilt, constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), for removal purposes).

Ninth Circuit

POST CON RELIEF " STATE REHABILITATIVE RELIEF " CALIFORNIA " EXPUNGEMENTS REMAIN EFFECTIVE SO LONG AS CONVICTION PREDATES NUNEZ-REYES " REQUEST TO CORRECT FAM
9 FAM 40.21(b)a(2) includes the Lujan exception to controlled substances inadmissibility, but requires an advisory opinion before a Lujan exception will be granted. This FAM provision is found at http://www.state.gov/documents/organization/86942.pdf Note that the FAM authors misunderstood and misstated the holding of Nunez-Reyes v. Holder, 646 F.3d 684 (Jul. 14, 2011), when they stated that "state judicial expungements that predate this decision can still be effective for immigration purposes in the Ninth Circuit." This is only partly correct. The correct summary of Nunez-Reyes on this point is that state judicial expungements for convictions that predate this decision can still be effective. That decision held: For those aliens convicted before the publication date of this decision, Lujan"Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan"Armendariz is overruled. Id. at 694. Thanks to Michael Mehr, who has requested the FAM editors to correct this error.

POST CON RELIEF - STATE REHABILITATIVE RELIEF
United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. Aug. 18, 2009) (defendant's prior expunged California convictions were not expunged for purposes of the Sentencing Guidelines, because under California law the expunged convictions in question could still be used at a later time in a variety of circumstances).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF IS GENERALLY INEFFECTIVE TO ELIMINATE A CONVICTION FOR IMMIGRATION PURPOSES
Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) ("[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state's rehabilitative statute.").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF IS GENERALLY INEFFECTIVE TO ELIMINATE A CONVICTION FOR IMMIGRATION PURPOSES
Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) ("[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state's rehabilitative statute.").

Eleventh Circuit

POST CON RELIEF " EFFECTIVE ORDER " USE OF VACATED CONVICTION TO ESTABLISH CONDUCT-BASED REASON TO BELIEVE GROUND OF INADMISSIBILITY
Garces v. US Atty. Gen., 611 F.3d 1337 (11th Cir. Jul. 27, 2010) (noncitizen whose drug trafficking conviction was vacated on the basis that the plea was not voluntary may still be found inadmissible for reason to believe that the noncitizen has engaged in drug trafficking, and the DHS may use police reports, the vacated conviction, and the motion to vacate itself to make a reason to believe determination; in this case, the submitted records were insufficient since the record did not show whether the noncitizen entered a plea of guilt or a plea of no contest, and the submitted police reports only made conclusions [he had engaged in drug trafficking], rather than describing a set of facts that would be sufficient to warrant such a conclusion). NOTE: This is a very good case to read on the topic of reason to believe and the admissibility of evidence in immigration proceedings.

Other

POST CON RELIEF - STATE REHABILITATIVE RELIEF - PRIOR NO-PLEA DIVERSION DOES NOT DISQUALIFY NONCITIZEN FROM LUJAN EXPUNGEMENT
"At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program" Cal. Penal Code 1001.3 et seq. Therefore, under the statutory definition of conviction INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), diversion under the California "no-plea" diversion statute does not constitute a conviction. See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California no-plea diversion, held not to be a conviction under Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)). A prior no-plea California diversion disposition therefore does not disqualify a noncitizen from eligibility for FFOA treatment under Lujan of a subsequent possession conviction. A disposition of diversion that did not require a plea of guilty or no contest and does not constitute a conviction under 8 U.S.C. 1101(a)(48)(A). In addition, this disposition does not constitute "a disposition under this subsection." Federal First Offender Act, 8 U.S.C. 3607(a).