In Matter of Roldan,[213] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[214] to hold that a state court action to “expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” does not eliminate the conviction for immigration purposes.

 

This decision is limited to situations in which a state court clears a state conviction from the record pursuant to a “state rehabilitative statute,” rather than on a ground of legal invalidity.[215]

 

This nationwide BIA rule has been followed in the majority of the circuits considering it.[216] 

In Lujan-Armendarez v. INS, however, the Ninth Circuit overturned Roldan on equal protection grounds, holding that the new IIRAIRA definition of conviction did not invalidate the Federal First Offender Act, and that state expungements therefore continue to eliminate all immigration consequences of convictions of first offense simple possession of controlled substances where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.[217]

 

            The rule has been extended to convictions of possession of drug paraphernalia and perhaps other more minor controlled-substance convictions of offenses that are not prohibited under federal law, such as being under the influence of drugs, or being in a place in which drugs are used.[218] 

 

The Ninth Circuit has upheld Roldan in all other respects.  In Murillo-Espinoza v. INS,[219] the Ninth Circuit concluded that an expunged theft conviction with a sentence of one year or more still qualified as an aggravated felony.  With cursory consideration, the court upheld the BIA’s position that expungements do not eliminate the immigration effects as an exercise of Chevron deference to agency determinations.[220]  

The Board of Immigration Appeals has since reaffirmed its position in Roldan that expungements do not operate to negate the immigration effects of a conviction.  In Matter of Salazar-Regino,[221] the Board considered whether to extend the Lujan decision nationwide and, over a vigorous dissent,[222] declined to do so.  Rather, the Board found that Congress intended to abolish the effectiveness of expungements for all classes of convictions and did not provide for an exception for first-offense drug cases.  It also rejected the argument that equal protection compelled honoring an expungement or rehabilitative dismissal in state court if the defendant would have been eligible for first-offender treatment in federal court, as was held in Lujan. 

 

The Board is bound to apply circuit court precedent within each jurisdiction.  Therefore, Lujan remains good law in the Ninth Circuit, unless overruled en banc by that court.  Although the issue should not be abandoned, it does not appear likely that other courts of appeals will follow Lujan in the wake of the Salazar-Regino decision.  Opinions from the First, Second, Fifth and Seventh Circuits on related questions indicate they will likely follow the BIA approach.[223]

 

Therefore, it is now clear that counsel in jurisdictions other than the Ninth Circuit cannot rely upon an expungement to eliminate the immigration effects of a conviction, even in those drug cases that would have been prosecuted in federal court under the FFOA.  In the Ninth Circuit, convictions and sentences that are vacated under state rehabilitative statutes will continue to exist to trigger adverse immigration consequences except to the extent (first offense non-trafficking drug convictions) that Lujan and its progeny dictate otherwise.

 

Outside the first-offense minor drug area, in the Ninth Circuit it is thus necessary to vacate a conviction on some ground of legal invalidity, rather than by a state rehabilitative statute, in order to ensure its elimination as a trigger for adverse immigration consequences.  Direct attack, whether by writ of habeas corpus, coram nobis, or nonstatutory motion to vacate is by far the safer route. 

 

In Lopes-Chaves v. Reno,[224] the district court granted a stay of deportation on the ground that a final order of deportation was based on state convictions that had been vacated in state court after the issuance of the order of deportation.  The district court concluded that there is a likelihood that the BIA will reopen the deportation proceedings in light of the significant immigration and comity issues involved, and that the petitioner will prevail on the merits, and issued the stay.

 

The defendant made a motion in state court to vacate convictions on the ground that the defendant had not been informed, pursuant to state statute,[225] that his admission of guilt would expose him to the risk of deportation, and the state court allowed the motions without an opinion.[226]  The INS argued that despite the state court orders vacating the convictions, petitioner remained “convicted” for immigration purposes.

 

The district court stated:

 

This position is neither compelled nor supported by current authority on this issue.  See Wiedersperg v. INS, 896 F.2d 1179, 1181 (9th Cir. 1980)(holding that petitioner was entitled to a new deportation proceeding where the conviction was overturned for an inadequate plea colloquy).[227]

 

The court went on to distinguish Roldan, supra, on the ground that the Board, in Roldan, expressly stated: “Our decision is limited to those circumstances where an alien has been the beneficiary of a state rehabilitative statute, which purports to erase the record of guilt.  It does not address the situation where the alien has had his or her conviction vacated by a state on direct appeal . . . or on grounds relating to a violation of a fundamental statutory or constitutional right in the underlying criminal proceedings.”[228]  The court also distinguished Molina v. INS[229] on the same ground.[230]

 

The INS also argued that the second conviction in this case had been vacated “under ‘suspicious circumstances’ because of the antipathy of a state trial court judge to the harsh consequences of the new immigration laws.”[231]  The court, however, concluded:  “There is no record support for this allegation.”[232]

 

Therefore, if a conviction is vacated on constitutional grounds, or for violation of a state or federal statute, rather than under a state rehabilitative statute, the conviction is legally invalid, and may no longer provide the basis for removal or other adverse immigration consequences.

 

Under the language of the FFOA, it may be possible to obtain a Lujan-safe expungement where two simple possession acts and convictions exist, if (1) at the time of commission of the second possession offense, the defendant had not yet been convicted of the first, and (2) both convictions are expunged at the same time, since at the time of the second conviction, the defendant did not have a prior disqualifying conviction and had never before received FFOA treatment.[233]

 

A qualifying expungement protects the noncitizen not only against deportation, but also against inadmissibility, since the FFOA protects the defendant against use of the disposition for any purpose whatsoever.  See § 6.13, supra.  These noncitizens are also protected against inadmissibility for having made an admission, because of a longstanding BIA rule that where a case is addressed in criminal proceedings and a disposition results that is less than a conviction, the person cannot be found inadmissible for having “admitted” the offense. Neither the prior guilty plea, or even a subsequent admission to an immigration official, will make them inadmissible for admitting the elements of the offense.[234]

[213] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc), removal order reversed, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[214] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[215] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc), removal order reversed, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[216] See Vasquez-Velezmoro v. INS, 281 F.3d 693, 698-699 (8th Cir. 2002) (rejecting noncitizen’s contention that expunged state drug conviction is not a “conviction” for immigration purposes); Ramos v. Gonzales, 414 F.3d 800 (7th Cir. July 12, 2005) (Nebraska conviction for attempted possession of cocaine, in violation of Neb.Rev.Stat. § § 28-201, 28-416 (2003), continued to constitute a “conviction,” for removal purposes, even though it had been expunged pursuant to a rehabilitative statute, Neb.Rev.Stat. § 29-2264, resulting in an order stating that “the adjudication previously entered by this Court is hereby set aside and nullified, and the Court further orders that all civil disabilities and disqualifications imposed as a result of said adjudication are hereby removed” and a later order stating rehabilitation had not played a part in the order, rejecting an argument that Equal Protection required granting the same effect to this state court order as would have been granted to an order under the Federal First Offender Act, 18 U.S.C. § 3607), following Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th Cir. 2003); Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the BIA law in place at the time the plea of guilty was entered), following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999); Resendiz-Alcaraz v. United States Att’y General, 383 F.3d 1262 (11th Cir. Sept. 10, 2004) (expunged controlled substance conviction still a conviction for immigration purposes).

[217] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[218] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

[219] Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).

[220] Judicial deference to an agency decision is governed by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-453 (1984).

[221] Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc).

[222] The dissent maintained that the Roldan decision was wrongly decided and, that by enacting the definition of “conviction” in INA § 101(a)(48)(A), Congress intended only to modify BIA precedent so that a guilty plea is sufficient to establish a conviction, even where adjudication of guilt is withheld.  Moreover, Congress gave no indication that it intended to supercede the FFOA when setting forth a definition of “conviction,” according to the dissent.  Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (Rosenberg, Board Member, dissenting).  A separate dissenting opinion by Board Member Moscato persuasively emphasized the importance of the FFOA as establishing a safety-value so that a first-offense drug conviction will not destroy a young life, which is so often the case for legal permanent residents who are deported based on one drug conviction.  Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (Moscato, Board Member, dissenting). 

[223] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000); United States v. Campbell, 167 F.3d 94 (2d Cir. 1999); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); see Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001). 

[224] Lopes-Chaves v. Reno, 1999 U.S.Dist. LEXIS 21151 (D.Mass. 1999).

[225] Mass. Gen. L. ch. 278, § 29D.

[226] Id. at 4.

[227] Id. at 5.

[228] Id. at 22.

[229] Molina v. INS, 981 F.2d 14, 20 (1st Cir. 1992) (which “also involved a state rehabilitative statute which expunged a conviction after certain probationary requirements were met”).

[230] See also United States v. Campbell, 167 F.3d 94 (2d Cir. 1999) (conviction “vacated” under state rehabilitative statute could still be considered in enhancing a federal criminal sentence under USSG § 2L1.2(b)(2)); United States v. Reinoso, 350 F.3d 51 (2d Cir. Nov. 17, 2003) (conviction for second-degree armed robbery constituted a conviction for a “crime of violence” that mandated a 16-level enhancement to the base offense level, even though the conviction had later been vacated by New York youthful offender adjudication); United States v. Driskell, 277 F.3d 150 (2d Cir. 2002) (because New York youthful offender treatment is not an expungement, the disposition remains a conviction in substance, for Federal sentencing purposes, regardless of its characterization under New York law, because United States Sentencing Guideline § 2L1.2’s failure to mandate that the sentencing court accord a conviction the status that New York law ascribes to it indicates Congress’s intent not to so limit the definition of “conviction” for purposes of that section and the court also saw no principled reason to distinguish between convictions that are considered for purposes of calculating a defendant’s criminal history category, and those used to calculate the base offense level).

[231] Id. at 7, n.4.

[232] Id. at 7, n.4.

[233] Thanks to Ann Benson for this analysis.

[234] See ILRC § 3.8 (2004).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - EFFECTIVE IF ELIGIBLE FOR FFOA TREATMENT AND EXPUNGEMENT IS IN PROCESS PURSUANT TO A COURT ORDER
In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the noncitizen's conviction had been expunged at the time of the lower court ruling. Since then, the Ninth Circuit has not ruled in a case in which an expungement or deferred dismissal process was in progress, but not yet completed. Nevertheless, the Ninth Circuit has suggested that if a noncitizen is in such a process, s/he can argue that the DHS cannot deport on the basis of the conviction-pending-expungement. In Lujan, the court stated:

Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Acts provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either. (Whatever the case, the result would be applicable to first-time drug possession offenders prosecuted under state statutes, as well.) However, we need not resolve this issue in order to decide the petitions for review before us. In both cases here, the pertinent findings had already been expunged before the BIA decisions were issued. Id. at 746 n.28.

The Ninth Circuit more affirmatively states this position in Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004), but again in dictum:

We express no opinion about whether this reasoning would apply with equal force to the situation the Lujan-Armendariz court specifically identified, where an alien has a finding of guilt on his record but the actual conviction is deferred pending successful completion of probation. See 222 F.3d at 746 n.28 (referring to 'deferred adjudication' statutes). Aliens sentenced under such schemes do not have a "conviction" on their record at any time during probation. However, because we are not faced with that situation here, that question must continue to remain open for another day. Id. at 1293 (emphasis added).

In Chavez-Perez v. Ashcroft, 386 F.3d 1284, 2004 WL 2389907 (9th Cir. Oct. 27, 2004), the court held that although an Oregon expungement would erase a simple possession conviction, the immigration authorities may remove noncitizen from the United States before the expungement has been granted. The Ninth Circuit, in dicta, distinguished between the situation in which the noncitizen had not yet made any attempt to begin expungement (as in Chavez-Perez), and the situation in which the noncitizen is in process of obtaining an expungement by court order.

Thanks to John Vawter.

Ninth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - DISMISSAL FOR SUCCESSFUL COMPLETION OF PROPOSITION 36 PROGRAM EFFECTIVELY ELIMINATED SIMULTANEOUS CONVICTIONS OF TWO QUALIFYING OFFENSES
Nunez-Reyes v. Holder, ___ F.3d ___, 2010 WL 1630897 (9th Cir. Apr. 23, 2010) (per curiam) (California court order dismissing under Penal Code 1210.1 a felony conviction for possession of methamphetamine, under Health & Safety Code 11377(a), and misdemeanor conviction of being under the influence of methamphetamine, under Health & Safety Code 11550(a), effectively eliminated both convictions for immigration purposes, so they no longer constituted controlled substances convictions creating a bar to cancellation of removal).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), that was expunged under Penal Code 1203.4(a), no longer constituted a conviction for purposes of establishing a statutory bar to showing Good Moral Character, under INA 101(f)(3), 8 U.S.C. 1101(f)(3)), following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT - MULTIPLE SIMULTANEOUS CONVICTIONS
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (remanding to BIA for its decision in the first instance the open question whether Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) eliminates the immigration effects of multiple simultaneous qualifying first-offense controlled substances convictions because the defendant would not have been disqualified from Federal First Offender Act treatment if prosecuted in federal court).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), that was expunged under Penal Code 1203.4(a), no longer constituted a conviction for purposes of establishing a statutory bar to showing Good Moral Character, under INA 101(f)(3), 8 U.S.C. 1101(f)(3)), following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT - MULTIPLE SIMULTANEOUS CONVICTIONS
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (remanding to BIA for its decision in the first instance the open question whether Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) eliminates the immigration effects of multiple simultaneous qualifying first-offense controlled substances convictions because the defendant would not have been disqualified from Federal First Offender Act treatment if prosecuted in federal court).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - EFFECTIVE ORDER - CONTROLLED SUBSTANCES - STATE REHABILITATIVE RELIEF
Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given "pretrial diversion" treatment on a prior offense, even though "pre-trial diversion" does not require the noncitizen to enter a plea of guilty to a controlled substances offense).

ARGUMENT " STATE REHABILITATIVE RELIEF " VALID LUJAN TREATMENT OF FIRST OFFENSE MAY ALLOW SECOND POSSESSION CONVICTION TO QUALIFY FOR CONTROLLED SUBSTANCES UNDER ONE OUNCE MARIJUANA EXCEPTION TO DEPORTABILITY
In de Jesus Melendez v. Gonzales 503 F.3d 1019 (9th Cir. 2007), the court held that a previous state ameliorative diversion barred a second rehabilitative dismissal from receiving Federal First Offenders Act treatment, even though the first disposition would not have qualified as a conviction under the INA. Because it was a second state ameliorative treatment equal protection requires no more. id. This does not prevent a noncitizen from avoiding deportation in the following scenario: The first disposition qualifies for FFOA treatment under Lujan, so it is not a conviction for any purpose. 18 U.S.C. 3607 provides that a FFOA disposition 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. Theres nothing in 18 U.S.C. 3607 saying that once all the requirements have been fulfilled, the disposition can revert to being treated as a conviction, based on later conduct. Therefore, the second conviction of simple possession may qualify for a statutory exception to deportability, because the second conviction is still a conviction of a single offense. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i). Unlike a drug conviction that has only been waived for the purpose of a ground of removal under former INA 212(c), a conviction treated under the FFOA and Lujan is not a conviction for any purpose. Thanks to Jonathan Moore.

POST-CON - STATE REHABILITATIVE STATUTES - LUJAN - CONVICTION MUST BE EXPUNGED TO AVOID REMOVAL
Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although Oregon expungement would erase simple possession conviction, if granted, the immigration authorities may remove noncitizen before expungement is granted; court distinguished between situation where, as here, noncitizen had not yet made any attempt to begin expungement, and where the noncitizen is in process of obtaining an expungement by court order).

Tenth Circuit

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).

Other

PRACTICE ADVISORY " CONTROLLED SUBSTANCES OFFENSES " FEDERAL FIRST OFFENDER ACT DISMISSALS ELIMINATE ALL IMMIGRATION CONSEQUENCES OF QUALIFYING CONVICTIONS EVEN THOUGH A STATE PROBATIONARY PERIOD LONGER THAN THE FFOA ONE-YEAR TERM WAS IMPOSED
The DHS sometimes argues that a state probation grant longer than the one-year probation period called for under the Federal First Offender Act, 18 U.S.C. 3706(a), disqualifies a conviction for treatment under Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000), prospectively overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc). The court of appeals has jurisdiction to review the underlying legal error of the BIA in adopting this argument. See Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014). Lujan-Armendariz itself extended Federal First Offender Act treatment to a noncitizen who successfully served five years of probation for a simple drug offense. See 222 F.3d at 733. Similarly, in Rice v. Holder, 597 F.3d 952, 954 (9th Cir. 2010), overruled on other grounds by Nunez-Reyes, 646 F.3d at 695, the Ninth Circuit held that a controlled substance offense was eligible for FFOA treatment even though the petitioner had been sentenced to three years probation, of which he had served approximately 19 months. See id.

CONTROLLED SUBSTANCES " INADMISSIBILITY " CONSULAR PROCESSING
The relevant Foreign Affairs Manual notes have been updated to explain how Nunez-Reyes is not retroactive, but basically states that if the Federal First Offender Act issue comes up, the agent should seek an Advisory Opinion. At least one has advised to apply Lujan if the applicant will be seeking admission at a Port of Entry in the Ninth Circuit. See 9 FAM 40.21(a) N3.2-2 Expunging Conviction Under U.S. Law (CT:VISA-1784; 12-09-2011); 9 FAM 40.21(b) N4.1-3 Applying State Equivalents to 21 U.S.C. 844(b)(1) (TL:VISA-223; 12-12-2000); 9 FAM 40.21(b) N4.1-4 Requests for Advisory Opinions (CT:VISA-1008; 09-05-2008); 9 FAM 40.21(b) N4.1-6 Action After Conviction (CT:VISA-1790; 12-16-2011).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - LOPEZ STRENGTHENS LUJAN
The Lopez decision uses a uniform federal standard to determine whether a possession conviction constitutes an aggravated felony, and uses the federal criminal drug statutes to set the bar. Counsel outside the Ninth Circuit can argue that this decision strengthens the Ninth Circuits reasoning in Lujan for the argument that state possession offenses expunged under state law that would have hypothetically qualified for FFOA treatment should be considered expunged for immigration purposes.

ARTICLE -- POST CON RELIEF - STATE REHABILITATIVE RELIEF - NINTH CIRCUIT - ARGUMENTS CALIFORNIA DEFERRED ENTRY OF JUDGMENT DOES NOT FALL WITHIN CHAVEZ-PEREZ
      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.

POST CON RELIEF - STATE REHABILITATIVE STATUTES - PRIOR DRUG CONVICTION FOR SOLICITATION OR INVOLVING STATE, NOT FEDERAL DRUG, DISQUALIFIES A DEFENDANT FROM FFOA TREATMENT AND THUS AN EFFECTIVE LUJAN EXPUNGEMENT
A second conviction of possession of a federally listed controlled substance, preceded by a prior conviction of solicitation to commit a controlled substances offense, can potentially constitute an aggravated felony drug trafficking offense. This is because the solicitation prior can constitute a prior, in federal court, to elevate the second possession conviction to an aggravated felony. A solicitation conviction is not interpreted under the criminal recidivist provisions as it is under the federal immigration laws, because different language is used. The same is true of the Federal First Offender Act, 18 U.S.C. 3607. A prior drug conviction will disqualify a defendant from FFOA treatment, if it is a crime under state law, even if it does not involve a federally listed offense and even if it is a solicitation conviction.

STATE REHABILITATIVE RELIEF - EXPUNGEMENT - WHETHER THE CUSTODY DISQUALIFIES RESPONDENT FROM LUJAN EXPUNGEMENT
Whether serving time in jail prevents a person whose conviction has been expunged from qualifying under Lujan-Armendariz is an open question in the Ninth Cir. See, Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir. 2009). See also, Fernandez-Bernal v. Attorney General of U.S., 57 F.3d 1304 (11th Cir 2001) (relief under FFOA 3607(b) is not available to an individual sentenced to a term of probation that exceeds one year; nor is it available to anyone sentenced to jail time). Thanks to Stacy Tolchin

POST CON RELIEF " FEDERAL " EXPUNGEMENTS " FEDERAL FIRST OFFENDER ACT " EX POST FACTO ARGUMENT AGAINST APPLICATION OF REPEAL TO PREVIOUSLY GRANTED EXPUNGEMENTS
Immigration counsel can argue that failure to honor Federal First Offender Act dispositions, or their analogues, would violate the Ex Post Facto provisions of the United States Constitution. See 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). Thanks to Dan Kesselbrenner