The Federal First Offender Act[209] provides that a first conviction in federal court of simple possession of any controlled substance can be treated under the FFOA if the defendant has never before received first offender treatment under this statute.[210]  The court may place the defendant on probation for up to one year without entry of a judgment of conviction, and upon successful completion, dismiss the proceedings against the person and discharge him or her from probation.  The statute provides:

 

A disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose.[211]

             

Congress has thus provided that a disposition under the FFOA cannot trigger any disability or be used for any purpose whatsoever.  This must be construed to mean the conviction cannot trigger adverse immigration consequences, such as deportability for an aggravated felony, under the plain meaning of the statute.  The courts must construe statutes so as to harmonize with each other.  Therefore, the definition of conviction must be construed to exclude dispositions treated successfully under the FFOA.

 

One circuit has disagreed with this analysis.[212]

[209] 18 U.S.C. § 3607.

[210] The literal requirements of the Federal First Offender Act are: “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.” 18 U.S.C. § 3607(a).

[211] 18 U.S.C. § 3607(b)(last sentence).

[212] Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. Aug. 15, 2003) (Pennsylvania first offender rehabilitative scheme, deferring sentencing and dismissing guilty plea, constituted a conviction for immigration purposes; court rejected Equal Protection argument that the definition of conviction for immigration purposes, INA § 101(a)(48), implicitly incorporated the Federal First Offender’s Act (FFOA), or that the FFOA exception should also be applied to state rehabilitative statutes).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IIRAIRA NEW DEFINITION OF CONVICTION DID NOT IMPLIEDLY REPEAL THE FEDERAL FIRST OFFENDER ACT
E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial interpretation of a statute and to adopt it when it re-enacts a statute without changing it).

"Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978).

"This rule is based on the theory that the legislature is familiar with the contemporaneous interpretation of a statute . . . . Therefore, it impliedly adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394 (1999).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGES United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), properly triggered 16-level sentence enhancement for illegal reentry after deportation since charging to which plea was entered listed offenses in the conjunctive, and plea of guilty was entered to every offense listed within the counts of conviction).

NOTE: This decision appears to contradict the decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) ("Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.").

The court based its reasoning on the following analysis:

In California, a guilty plea admits every element of the offense charged, People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837 (Cal.1981), including all accusations and factors comprising the charge contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d 147, 154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) ("By pleading guilty as charged [to an information worded in the conjunctive, charging, "robbery by means of force and fear"], appellant necessarily admitted the force allegation and cannot now escape the consequences of that admission.") (emphasis added). Thus, "a plea of guilty means guilty as charged in the information, and by it all averments of fact are admitted.... The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts. " Arenstein v. Cal. State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996) (citations omitted).

Accordingly, by pleading guilty to counts one and two as worded, in the conjunctive, Garcia-Medina admitted to several offenses committed on at least two occasions. It is uncontested that most of these offenses qualify as drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not clarify his plea before the California trial court; instead, he admitted every offense listed in the charging document and cannot now escape the consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355-356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988).

United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3 (8th Cir. Aug. 15, 2007).

BIA

POST-CONVICTION - EFFECT OF EXPUNGEMENT
Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a States rehabilitative procedures), citing United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).

Second Circuit

POST CON RELIEF " REHABILITATIVE RELIEF " INEFFECTIVE UNLESS BASED ON LEGAL DEFECT
Wellington v. Holder, 623 F.3d 115 (2d Cir. Oct. 20, 2011) (No. 09-4111) (a Certificate of Relief or similar state rehabilitative treatment does not preclude use of the underlying offense as a basis for removal or as a basis for ineligibility for relief, where the state treatment was not related to a procedural or substantive defect in the criminal proceedings).

Ninth Circuit

CONTROLLED SUBSTANCES " UNDER THE INFLUENCE " STATE REHABILITATIVE RELIEF DOES NOT ELIMINATE IMMIGRATION CONSEQUENCES
Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. Jul. 14, 2011) (en banc) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), continued to exist to trigger adverse immigration consequences of a controlled substances conviction, despite state rehabilitative relief that would have eliminated the immigration consequences of the conviction under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), because this offense was not less serious than simple possession of a controlled substance, and was therefore not covered under the Federal First Offender Act, 18 U.S.C. 3607); overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) (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).

POST CON RELIEF " STATE REHABILITATIVE RELIEF " NINTH CIRCUIT " STATE EXPUNGEMENTS WILL NO LONGER ELIMINATE IMMIGRATION CONSEQUENCES UNDER LUJAN FOR CONVICTIONS AFTER JUL. 14, 2011
Nunez-Reyes v. Holder, 646 F.3d 684, 690, 694, 2011 WL 2714159 (9th Cir. Jul.14, 2011) (en banc) (state rehabilitative relief for qualifying first controlled substances convictions will no longer eliminate immigration consequences for convictions entered after Jul.14, 2011: the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA. . . . 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.); overruling Lujan-Armendariz v. INS, 222 F.3d 728, 743 n.24 (9th Cir. 2000) (constitutional guarantee of equal protection required Congress to treat expunged federal convictions and expunged state convictions the same way).

POST CON RELIEF " FEDERAL REHABILITATIVE RELIEF " FFOA
Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. Jul.14, 2011) (en banc) (a federal conviction, later expunged under the Federal First Offender Act (FFOA), nevertheless constitutes a conviction for immigration purposes. Importantly, the FFOA mandates that a successfully expunged federal conviction shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose. 18 U.S.C. 3607(b) (emphases added).); following on this point Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

POST CON RELIEF - STATE REHABILITATIVE RELIEF IS INEFFECTIVE TO ELIMINATE CONVICTION FOR PURPOSES OF CONSTITUTING A PRIOR CONVICTION UNDER THE FEDERAL CONTROLLED SUBSTANCES ACT
United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007) (state conviction constitutes prior conviction under federal Controlled Substances Act even if state court expunged conviction by granting state rehabilitative relief); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006) (same); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003)(same); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997) (same); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993) (same).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - SIMPLE POSSESSION - FEDERAL FIRST OFFENDER ACT
Aguiluz-Arellano v. Gonzales, ___ F.3d ___, 2006 WL 1133327 (9th Cir. May 1, 2006) (petitioners conviction for being under the influence of a controlled substance did not fall within the scope of the Federal First Offender Act (FFOA), as he had a prior drug conviction).
http://caselaw.lp.findlaw.com/data2/circs/9th/0373856p.pdf

POST CON RELIEF - FEDERAL - EXPUNGEMENT
United States v. Sumner, 226 F.3d 1005 (9th Cir. 2000) (district court has no inherent or ancillary authority to expunge criminal records).

It is possible the state in which the federal conviction occurred has an expungement statute, allowing state courts to expunge federal convictions in the sense of sealing state records of federal convictions. Sometimes the NCIC record accidently gets sealed as well. See, e.g., Ohio Revised Code 2953.32.

Tenth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - FEDERAL FIRST OFFENDER ACT - CONVICTION EXCLUDES EXPUNGEMENTS
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) ("[T]he First Offender Act, 18 U.S.C. 3607, permits the expungement of first-time simple drug-possession offenses for all purposes, including immigration adjudications. As the Ninth Circuit noted in Lujan-Armendariz, there is no reason to suppose that Congress repealed the First Offender Act sub silentio. It thus makes sense to read the 1101(a)(48)(a) definition to exclude expungements.").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - WYOMING DEFERRED ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and sentence, under Wyo. Stat. 7-13-301 ("Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five (5) years."), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. 3607, for purposes of avoiding a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION DOCTRINE - FAILURE TO EXHAUST IS EXCUSED IF RESPONDENT CAN SHOW MISCARRIAGE OF JUSTICE, SUCH AS WHERE CONVICTION ON WHICH DEPORTATION IS BASED DOES NOT CONSTITUTE AN AGGRAVATED FELONY
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (court of appeal can reach claim that controlled substances conviction does not constitute an aggravated felony, under Lopez, even though respondent failed to exhaust before the IJ or BIA because the law was clear against him, under the miscarriage of justice exception to the exhaustion doctrine of 8 U.S.C. 1252(d)(1)), following Marrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004); see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (habeas petitioner's failure to exhaust may be excused "when administrative remedies are inadequate" but not where administrative procedures exist to reopen petitioner's case) (internal quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) ("Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out exceptions."); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) (finding that an exception exists to address "certain constitutional due process claims").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - SIMPLE POSSESSION - TENTH CIRCUIT
Ballesteros v. Ashcroft, 452 F.3d 1153, 1158 (10th Cir. 2006) (argument that noncitizen relied on Ninth Circuit law when entering plea agreement required (a) favorable Ninth Circuit decision prior to entry of his plea; and (b) record evidence to support this claim such as evidence that acceptance of plea was conditioned on the plea's inability to affect his immigration status; administrative removal record contains only allegations by counsel of such reliance, but these allegations are not evidence), citing Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - SIMPLE POSSESSION -- TENTH CIRCUIT
Elkins v. Comfort 392 F.3d 1159 (10th Cir. 2004) (if the FFOA were to apply, the defendant would have to get the exact same sentence to probation as is provided under the FFOA).

Other

POST CON RELIEF " STATE REHABILITATIVE RELIEF
Kathy Brady, Immigrant Legal Resource Center, Practice Advisory, Immigrant Defendants with a First Minor Drug Offense: Rehabilitative relief will no longer eliminate a first conviction for simple possession for immigration purposes, unless the conviction occurred before 7/14/11; Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. Jul.14, 2011) (en banc), overruling Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) for purposes of convictions received on or after Jul.14, 2011.

PRACTICE ADVISORY " POST CON RELIEF " CONGRESS INTENDED ONLY VALID CONVICTIONS TO TRIGGER REMOVAL
The Ninth Circuit explained that applying common sense definition of conviction would not thwart the will of Congress: But Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime; Congress intended such results only for those who were duly convicted, with all the constitutional protections of our criminal justice system. Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights. As discussed above, many alien defendants fell into neither category. Instead, they pleaded guilty and waived their constitutional rights with a wholly uninformed understanding of the consequences of their plea. Contrary to their understanding that there would be no immigration consequences, the actual consequence is the severe penalty of removal. Nothing in the statute or its history, purpose, or effect suggests that Congress intended adverse immigration consequences for those whose waiver of constitutional rights turned out to be so ill-informed. Indeed, the Supreme Court has instructed that such a gross misunderstanding of the immigration consequences of a plea, when caused by incompetent counsel, rises to the level of a constitutional violation. Padilla, 130 S. Ct. at 1486-87. We conclude that retroactive application of our decision today will not further the purposes of the immigration laws. Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. Jul. 14, 2011) (en banc). The same reasoning applies to granting post-conviction relief where the underlying conviction was legally invalid.

POST CON RELIEF " REHABILITATIVE RELIEF " FFOA " FEDERAL FIRST OFFENDER ACT LEGISLATIVE HISTORY
A legislative history search failed to disclose any congressional materials related to the enactment of the Federal First Offender Act, 8 U.S.C. 3607. The statute was added as a rider to an appropriations bill along with many other statutes, and may have been added at the last minute without any sort of Congressional debate. The Federal First Offender Act was originally enacted in 1970 under the title of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513 (1970), originally codified at 21 U.S.C. 844(b). The amendment in 1984 only changed the language slightly. There were hearings before the House Subcommittee on Public Health and Welfare, the Committee on Interstate and Foreign Commerce, and the Senate Special Subcommittee on Alcoholism and Narcotics, Committee on Labor and Public Welfare as well as two committee prints issued by the House Committee on Ways and Means and by the Senate Committee on Labor and Public Welfare. The transcripts of the hearings offer some language on why rehabilitation may be more fruitful for those convicted of drug offenses than incarceration, because many of these people actually suffer from addiction and thus should not be punished for their actions. Moreover, simple use and possession of drugs does not harm society and therefore should not be punished the same as other crimes. No specific language was found discussing why first offenses should be expunged or treated less severely. The testimony focused instead on the harmfulness of narcotics and the medical diagnosis of addiction. Thanks to Sarah Shekhter.

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.

POST CON RELIEF " EXPUNGEMENTS " FEDERAL YOUTH CORRECTIONS ACT EXPUNGEMENTS MAY CONTINUE TO BE EFFECTIVE
Federal Youth Corrections Act expungements, under 18 U.S.C. 5021, may continue to be effective to eliminate the adverse immigration effects of federal criminal convictions. United States v. Gardner, 860 F.2d 1391, 1399, n.2 (7th Cir. 1988) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution); United States v. Countryman, 758 F.2d 574, 579 n. 2 (11th Cir.1985) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution). See Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974) (before the repeal of the Federal Youth Corrections Act, the BIA held that an FYCA expungement eliminated the fact of a conviction for immigration purposes). After the repeal of the Federal Youth Corrections Act, but before Congress enacted a definition of conviction in IIRIRA, the BIA continued to hold that an FYCA expungement eliminated the fact of a conviction for immigration purposes. See Castano v. INS, 956 F.2d 236, 237 n.3 (11th Cir. 1992) (recognizing post-repeal BIA policy). After the enactment of 8 U.S.C. 1101(a)(48), the BIA held that the new definition applies to convictions before, on, or after effective date of conviction definition. Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999). In Roldan, the BIA dealt with a state expungement. There is no current authority regarding the FYCA squarely. Even if the client could get a FYCA expungement now, it has never insulated a noncitizen from "reason to believe" inadmissibility, which does not require a conviction. See, e.g, Castano v. INS, 956 F.2d 236 (11th Cir. 1992); Matter of Favela, 16 I&N Dec. 753 (BIA 1979). Thanks to Dan Kesselbrenner.