Safe Havens

 

(A)  Federal First Offender Act.  In Lujan-Armendarez v. INS, 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 (FFOA), 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.[193]

            The FFOA[194] is an alternative sentencing statute that applies after a defendant has been “found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844) . . . .”  Thus, it applies after a jury or court verdict of guilty, or a guilty plea has been entered, to a listed offense.

 

            Congress has in effect provided that a federal first conviction of simple possession of a controlled substance ceases to exist for any purpose upon successful completion of FFOA treatment when the charge is dismissed by the federal court.  In the Ninth Circuit, therefore, such a conviction cannot trigger deportation under any ground, i.e., as an aggravated felony drug trafficking conviction or as a conviction for a controlled substances offense. 

 

(1)  Listed Offenses.  The FFOA applies to those convicted in federal court of knowingly or intentionally, without authorization, possessing any controlled substance (or gratuitous distribution of a “small amount of marijuana” or hashish).[195]  The Ninth Circuit has also held that this benefit must be made available to defendants convicted of other offenses such as possession of paraphernalia that are (a) less serious than simple possession, and (b) not forbidden under federal controlled substances statutes.[196]  This would cover offenses such as driving under the influence of a controlled substance, being in a place in which controlled substances are used, being under the influence of a controlled substance, and the like.

 

(2)  Eligibility.  There are two circumstances in which the defendant is not eligible for FFOA treatment of a guilty finding of a qualifying offense:

 

            (a)  The person cannot previously have “been convicted of violating a Federal or State law relating to controlled substances;” and

 

            (b)  The person cannot have “previously been the subject of a disposition under this subsection . . . .” [197]

 

In other words, if the defendant has a prior state or federal conviction “relating to”[198] any controlled substance, of any kind, s/he is disqualified from FFOA treatment of the current conviction for possession of a controlled substance.  Note that by specifically listing a federal or state conviction as a disqualification, Congress failed to provide a foreign conviction as a disqualifying circumstance.  Second, if the person has previously received FFOA treatment, s/he is disqualified from receiving FFOA treatment for the current (second) offense.

 

(3)  Procedure.  The FFOA provides for a form of pre-judgment probation, in which the court, with the consent of the defendant, places the person on probation for a term of not more than one year without imposing a judgment of conviction.[199]  After successful completion of probation, the court shall dismiss the proceedings against him or her.[200]

 

(4)  Legal Effect.  The FFOA gives the broadest effect to a disposition under the statute, providing that such “a 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.”[201]  Since Congress, which enacted this legislation, has the power to determine the immigration consequences of a conviction, and spoke here with unmistakable clarity, a conviction treated under the FFOA which was ultimately dismissed can have no adverse immigration effect whatsoever.  This is the basis for the Ninth Circuit’s Equal Protection decisions protecting those given the benefit of analogous state rehabilitative relief, in cases in which the defendant would have been eligible for FFOA treatment of a conviction if s/he had been prosecuted for that offense in federal court.

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

[194] 18 U.S.C. § 3607.

[195] 21 U.S.C. § § 844(a)(possession), 841(b)(4)(gratuitous distribution of marijuana).

[196] Cardenas-Uriarte v. INS, 227 F3d 1132 (9th Cir.  2000).

[197] 18 U.S.C. § § 3607(a)(1) & (2).

[198] This is the same phrase used in the controlled substances offense grounds of inadmissibility and deportability, suggesting that decisions defining the boundaries of those grounds may be used in this context as well.  INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II); INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B).

[199] 18 U.S.C. § 3607(a).

[200] Ibid.

[201] 18 U.S.C. § 3607(a) (emphasis supplied).