(I)  Prospects for this Rule in Other Circuits.  At the present time, the prospects for extending this rule to other circuits do not appear to be great.[225]  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, [226] Second,[227] Third,[228] Fifth[229] and Seventh Circuit[230] Courts on related questions indicate they will likely follow the BIA approach.

            For an extensive discussion of circumstances in which state rehabilitative relief is effective to eliminate certain minor first offense controlled substances convictions, see N. Tooby, Post-Conviction Relief for Immigrants, Chapter 8, pp. 415-451, “State Rehabilitative Relief” (2004).

[225] Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (state delayed adjudication of guilt); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir.1999) (federal sentencing case); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n.8 (4th Cir. 2001) (non-precedential — foreign conviction allegedly expunged); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir.1999) (state delayed adjudication of guilt); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged).

[226] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000).

[227] See 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)).

[228] Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. August 15, 2003) (even if not a conviction under state law, deferred adjudication constitutes a conviction under immigration law; Third Circuit rejects Lujan-Armendariz v. INS rationale as contrary to statutory language, and providing no basis for equal protection claim).

[229] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. November 11, 2002) (order vacating federal conviction, not on the merits, does not erase it for immigration purposes: “Renteria-Gonzalez contends that he no longer has a conviction, because the district court vacated his conviction in 1992.  The INS responds that the Order to Vacate is null for lack of subject matter jurisdiction or, in the alternative, that a properly vacated federal conviction remains valid for purposes of the immigration laws, even if a district court has purported to vacate the conviction to avoid the immigration-related consequences of the conviction. ¶  We conclude that, though the INS may not now collaterally attack the Order to Vacate, the vacated conviction remains valid for purposes of the immigration laws.”); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999).

[230] Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. July 8, 2003) (Illinois “410 probation” and subsequent dismissal continues to be a conviction under federal law, even if not a conviction under state law; Lujan-Armendariz v. INS rejected as upholding an “abandoned administrative practice over statutory text”).