Aggravated Felonies

 

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).