(F)  Disqualification from Effectiveness of Relief.  There are two circumstances in which the defendant is not eligible for FFOA treatment of a guilty finding of a qualifying offense:

 

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

(2)     The person cannot have “previously been the subject of a disposition under this subsection . . . .” [215]

 

In other words, if the defendant has a prior state or federal drug conviction of any kind, s/he is disqualified from FFOA treatment of the current conviction for possession of a controlled substance.  NOTE: this includes prior state or federal convictions, but not foreign ones.  Second, if the person has previously received FFOA treatment, s/he is disqualified from receiving FFOA treatment for the current (second) offense.

 

            If the defendant has received some form of “first offender” treatment in state court that does not constitute a conviction, that would not disqualify him or her from FFOA treatment for a current offense for which s/he was “found guilty” as provided in the FFOA.  For example, many states have a form of pre-plea diversion in which criminal proceedings are suspended prior to entry of a plea, and the defendant is therefore never found guilty under any definition at all of that offense.  Since no plea was entered, there was never any “conviction” under immigration law.[216]  Moreover, the defendant had never previously “been convicted of violating a Federal or State law relating to controlled substances . . . .” [217] as required to disqualify him or her from receiving FFOA treatment for a new offense.

 

            For example, California law provides:  “At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program.”[218]  Therefore, under the definition of conviction[219] diversion under this California statute does not constitute a conviction.[220]  A prior no-plea California diversion disposition therefore does not render a noncitizen disqualified from eligibility for FFOA treatment 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.[221]  In addition, this disposition does not constitute “a disposition under this subsection [8 U.S.C. § 3607(a)].”

 

            In addition, if a defendant had previously been convicted of a state drug offense, but had received state rehabilitative relief to eliminate that conviction under state law, that person technically would not be disqualified from receiving the benefits of the FFOA for a later federal possession conviction, since that person would not have “previously been the subject of a disposition under this subsection . . . .”[222]  The person would have received first-offender treatment not under the federal FFOA, but under an analogous state rehabilitative statute.  If this legislation is interpreted strictly in favor of the defendant, and all reasonable doubts are construed in favor of the defendant,[223] then this defendant could indeed, in strict compliance with the wording of the statute, receive FFOA treatment for this second conviction if the first time was under state, not federal, law.  On the other hand, the immigration authorities could argue with some plausibility that prior FFOA and prior state rehabilitative treatment should be treated as equivalent for this purpose, even though the statute does not so provide in so many words.  Therefore, it would not be wise to place too much confidence in this interpretation of the statute.

[215] 18 U.S.C. § § 3607(a)(1) & (2).

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

[217] 18 U.S.C. § 3607(a)(1).

[218] Cal. Penal Code § § 1001.3 et seq.

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

[220] See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California diversion, held not to be a conviction under Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)).

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

[222] 18 U.S.C. § 3607(a)(2) (emphasis supplied).

[223] The right against conviction except on proof beyond a reasonable doubt is protected by the due process clause of the Fourteenth Amendment of the United States Constitution against state interference.  Mullaney v. Wilbur, 421 U.S. 684 (1975); Cool v. United States, 409 U.S. 100, 104  (1972) (“The Constitution requires proof beyond a reasonable doubt.”); In re Winship, 397 U.S. 358 (1970).  If this principle is weakened, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”  Stack v. Boyle, 342 U.S. 1, 4  (1951).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES, AS DISTINGUISHED FROM A CONVICTION THAT HAS BEEN VACATED ON THE MERITS
Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983) (Federal firearms disabilities applied with respect to one who pled guilty to a State offense punishable by imprisonment for more than one year, even if the record of the State criminal proceeding was subsequently expunged following a successfully served term of probation: "expunction under state law does not alter the historical fact of the conviction, . . . does not alter the legality of the previous conviction[,] and does not signify that the defendant was innocent of the crime to which he pleaded guilty"); United States v. Smith, 96 F.3d 1350, 1351 (11th Cir. 1996) (per curiam); United States v. Mejias, 47 F.3d 401, 403-404 (11th Cir. 1995); see also United States v. Norbury, 492 F.3d 1012, 1014-1015 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006).

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.

BIA

POST CON RELIEF - MODIFICATION OF RECORD OF CONVICTION SOLELY FOR IMMIGRATION PURPOSES MAY NOT BE AFFECTIVE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

POST CON RELIEF - EFFECTIVE ORDER - MODIFICATION OF RECORD OF CONVICTION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, __ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

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).

First Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (noting that the language of 1101(a)(48)(A) "leaves nothing to the imagination" and that state rehabilitative programs that do not vacate a conviction on the merits "have no bearing in determining whether an alien is to be considered convicted under section 1101(a)(48)(A)."); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir. 1999) (federal sentencing case); Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003) (stating, in case where petitioner successfully completed a one year probation sentence for a heroin possession charge in state court that would have made him eligible for FFOA relief had he been prosecuted by the federal government, that "[t]his language unambiguously points to the conclusion that the disposition of Acosta's criminal case in [state court pursuant to a state law permitting dismissal of charge after completion of probation without verdict] constitutes a conviction "); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir.1999) (state delayed adjudication of guilt); Gill v. Ashcroft, 335 F.3d 574, 577 (7th Cir. 2003) ("Every court that has considered the subject believes that 1101(a)(48)(A) governs the handling of repeat offenders and that expungements (or restorations of civil rights) under state law do not negate a conviction for purposes of immigration law."); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); United States v. Zamudio, 314 F.3d 517, 522 (10th Cir. 2002) (adopting plain meaning of 8 U.S.C 1101(a)(48)(A) when interpreting U.S.S.G. 2L1.2(b)(1)); Resendiz-Alcaraz v. United States Atty General, 383 F.3d 1262, 1269(11th Cir. Sept. 10, 2004) ("clear language of the statute [INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) definition of conviction] includes [as convictions] state convictions expunged under state rehabilitative laws").

Second Circuit

POST CON RELIEF " CONVICTION VACATED SOLELY FOR REHABILITATIVE REASONS
Sutherland v. Holder, 769 F.3d 144 (2d Cir. Oct. 8, 2014) (Arizona conviction for attempted possession for sale of four or more pounds of marijuana was vacated by an Arizona state court, but remains valid for federal immigration and removability purposes, since the order vacating the conviction was obtained under Arizona Revised Statutes 13-907 solely for rehabilitative reasons).

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).

POST CON RELIEF " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT
Wellington v. Holder, 623 F.3d 115 (2d Cir. Oct. 20, 2010) (We hold that an alien who receives state rehabilitative treatment for a removable offense under 8 U.S.C. 1182(a)(2)(A)(i)(II) remains "convicted" of that offense pursuant to the definition of "conviction" in the Immigration and Nationality Act, see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), even if the alien would have been eligible for relief under the Federal First Offender Act had she been prosecuted in federal court. See 18 U.S.C. 3607.).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS
Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may not take administrative notice of facts without affording other party to rebut the inferences drawn from those facts).

Lower Courts of Second Circuit

EXPUNGEMENT - FALSE STATEMENT FOR IMMIGRATION BENEFIT
Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (the fact that applicant stated that he had not been arrested [after prior indication that he had] was not an intentional misstatement to the government where applicant could have believed that the expungement of the records of those arrests meant that he could state to the government that he had no longer been arrested). http://bibdaily.com/pdfs/Szpak%207-25-07.pdf

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.")

POST-CONVICTION RELIEF - LUJAN EXPUNGEMENT - EXPUNGEMENT OF SECOND CONVICTION EFFECTIVE WHERE FIRST CONVICTION NOT FINAL AT TIME OF SECOND CONVICTION
Smith v. Gonzales, ___ F.3d ___, 2006 WL 3012856 (5th Cir. Oct. 24, 2006) (for purposes of the Controlled Substances Act, a conviction does not become final until time for direct appeal and time for discretionary review have elapsed).

NOTE: This case can be cited to support the position that a second controlled substances offense may be expunged under Lujan in the Ninth Circuit as long as the first conviction had not become final by the time of the second conviction.

Lower Courts of Sixth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - FIRST OFFENSE DRUG CASES - OPEN QUESTION IN SIXTH CIRCUIT
Shurney v. INS, 201 F.Supp.2d 783, 794 (D. Ohio 2001) ("The question before this Court is not whether Lujan-Armendariz should be adopted in this Circuit; the question presented in this proceeding is whether, in light of Lujan-Armendariz, Shurney has a good faith basis to contest his removal and, hence, has a protectible liberty interest in objecting to detention pending removal. Since the Sixth Circuit has yet to rule on Shurneys contention and another Circuit Court has ruled in a manner favorable to Shurney, this Court cannot conclude that Shurneys argument is frivolous.").

Seventh Circuit

POST-CON RELIEF " STATE REHABILITATIVE RELIEF " EXPUNGEMENT " REHABILITATIVE EXPUNGEMENT REMAINS A CONVICTION FOR IMMIGRATION PURPOSES
Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010) (expungement of a conviction for a drug charge involving cocaine upheld as a conviction for INA purposes, because guilty plea was set aside and dismissed for ameliorative purposes, not for any procedural or substantial defects in the proceedings.), following Ali v. Ashcroft, 395 F.3d 722, 727 (7th Cir. 2005), Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003). PCN:8.3;CD4:11.18;AF:6.12;CMT3:10.11;SH:4.27

POST CON RELIEF - CONVICTION VACATED PURSUANT TO EXTRAORDINARY MOTION FOR NEW TRIAL, FOLLOWED BY DISMISSAL OF CHARGES, REMAINED A CONVICTION FOR IMMIGRATION PURPOSES SINCE NONCITIZEN FAILED TO ESTABLISH THAT CONVICTION HAD BEEN VACATED BASED ON A PROCEDURAL OR SUBSTANTIVE DEFECT IN THE UNDERLYING CRIMINAL PROCEEDINGS
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, followed by the granting of an extraordinary motion for a new trial, and the State of Georgia's motion to nolle prosse charges, continued to constitute a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), for removal purposes, since noncitizen failed to establish that conviction had been vacated based on a procedural or substantive defect in the underlying criminal proceedings; noncitizen bears burden to show conviction was vacated on a basis of legal invalidity). This decision violates the long-standing rule that the government bears the burden of establishing by clear and convincing evidence every fact necessary to prove deportability. Woodby v. INS, 385 U.S. 276 (1966).

CONTROLLED SUBSTANCES - ATTEMPTED SIMPLE POSSESSION CONVICTION EXPUNGED PURSUANT TO A STATE REHABILITATIVE STATUTE CONTINUED TO EXIST AS A GROUND OF DEPORTATION
Ramos v. Gonzales, ___ F.3d ___, 2005 WL 1618821 (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, despite 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).

CONVICTION - VACATED ON POST-CONVICTION RELIEF - EFFECTIVENESS OF ORDER VACATING CONVICTION - SEVENTH CIRCUIT AFFIRMS PICKERING RULE-POST CON RELIEF - EFFECTIVE ORDER
Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (according Chevron deference to, and affirming rule of Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA June 11, 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), that if a court amends an alien's conviction for reasons solely related to rehabilitation or immigration hardships, as opposed to responding to procedural or substantive defects in the underlying criminal proceedings, then the alien remains "convicted" for immigration purposes).

POST CON RELIEF - EFFECTIVE ORDER VACATING CONVICTION - ILLINOIS ORDER AMENDING FELONY CONVICTION OF POSSESSION WITH INTENT TO DISTRIBUTE THC TO MISDEMEANOR POSSESSION OF MARIJUANA WAS INEFFECTIVE TO ELIMINATE THE FORMER CONVICTION FOR REMOVAL PURPOSES, SINCE IT WAS NOT BASED ON A GROUND OF LEGAL INVALIDITY
Ali v. Ashcroft, ___ F.3d ___ (7th Cir. Jan. 11, 2005) (Illinois order amending felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. 961.41(1m)(h)(1), to misdemeanor possession of marijuana was ineffective to eliminate the former conviction for removal purposes, since it was not based on a ground of legal invalidity).

Eighth Circuit

CONTROLLED SUBSTANCES " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT POST CON RELIEF " REHABILITATIVE RELIEF " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT
Brikova v. Holder, 699 F.3d 1005 (8th Cir. Nov. 7, 2012) (Minnesota conviction of possession of cocaine, for which defendant would have been eligible for Federal First Offender Act treatment, under 18 U.S.C. 3607(a), was not eliminated for immigration purposes by state rehabilitative relief, since equal protection challenge fails because there are multiple potential rational bases for distinguishing between federal and state defendants).

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.

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 - EFFECT OF VACATUR - REHABILITATIVE PURPOSE
Mendoza v. Holder, 606 F.3d 1137 (9th Cir. Jun. 2, 2010) (conviction still exists after vacatur granted for rehabilitative purposes only; any vacatur granted under Ariz.Rev.Stat. 13-907 is rehabilitative, and therefore still a conviction for immigration purposes), following Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001).

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
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 - 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 - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF DOES NOT ELIMINATE CONVICTION FOR PURPOSES OF IMPOSING FEDERAL CONTROLLED SUBSTANCE SENTENCE ENHANCEMENT
United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - LOPEZ STRENGTHENS ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE FEDERAL FIRST OFFENDER ACT ELIMINATES QUALIFYING CONVICTIONS FOR IMMIGRATION PURPOSES
United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

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).

CONVICTION - DEFINITION OF CONVICTION - DEFERRED ENTRY OF JUDGMENT
United States v. Valerio, __ F.3d __ (9th Cir. Mar. 28, 2006) (federal conviction for being a felon in possession of a firearm is affirmed despite the claim that he was not a convicted felon at all, because his deferred imposition of sentence and subsequent discharge under state law invalidated that status).

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 - 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.").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - STATE EXPUNGEMENT STATUTE DOES NOT HAVE TO BE EQUIVALENT TO FFOA TO ELIMINATE IMMIGRATION CONSEQUENCES OF CONVICTION
Under Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994), the state expungement statute does not have to be identical to the FFOA: "We rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994). Garberding involved Montana's expungement statute, which was not limited to first-time simple drug possession offenses but allowed expungement of a broad range of more serious offenses. Id. at 1189. Considering Garberding's challenge on Equal Protection grounds, we concluded that the INS had no rational basis for treating her differently simply because Montana's statute covered a broader range of offenses than did the FFOA, id. at 1190-91, and held that "persons who received the benefit of a state expungement law were not subject to deportation as long as they could have received the benefit of the federal Act if they had been prosecuted under federal law." Chavez-Perez v Ashcroft, 386 F.3d 1284, 1288 (9th Cir. 2004). This interpretation accepted in Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995), which requires only that the defendant be a simple possession first offender and that a "court has entered an order pursuant to a state rehabilitative statute under which the alien's criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation." Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995). Therefore, the statute expungement statute need not be equivalent to the FFOA if the conduct could have been covered under the FFOA if the case had been prosecuted in federal court, and rehabilitative treatment resulting in dismissal was granted. Thanks to Jonathan Moore.

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).

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

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
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.

POST CON RELIEF - STATE REHABILITATIVE RELIEF - FIREARMS CONVICTION IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION PURPOSES
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) (federal definition of "conviction" at INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) (2000), encompasses convictions, other than those involving first-time simple possession of narcotics, that have been vacated or set aside pursuant to state rehabilitative relief statute for reasons that do not go to the legal propriety of the original judgment, and that continue to impose some restraints or penalties upon the defendant's liberty, so a noncitizen whose firearms conviction was expunged pursuant to California Penal Code 1203.4(a) remains "convicted" for immigration purposes).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - FIREARMS CONVICTION IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION PURPOSES
Matter of Luviano, 23 I. & N. Dec. 718 (AG Jan. 18, 2005) (firearms conviction expunged pursuant to California state rehabilitative relief statute, Penal Code 1203.4(a), remained a conviction for immigration purposes under the statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)).

EXPUNGEMENT - EFFECT ON INADMISSIBILITY
People who can benefit from rehabilitative relief eliminating a conviction under Lujan also are protected from being held inadmissible 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 INS official, will make them inadmissible for admitting the elements of the offense.   See California Criminal Law and Immigration (2004), 3.8. Thanks to Kathy Brady, ILRC for this analysis.

POST CON RELIEF - EXUNGEMENT POST CON RELIEF - EFFECTIVE ORDER VACATING CONVICTION
James A.R. Nafziger & Michael Yimesgen, The Effect of Expungement on Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930 (2003).

POST CON RELIEF - EXPUNGEMENT - SIMPLE POSSESSION
The literal requirements of the Federal First Offender Act are: 18 U.S.C. 3607 (a) Pre-judgment Probation: 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. Under this language, 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. Thanks to Ann Benson for this analysis.

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).

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.

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 " 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.

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