In Matter of Roldan,[89] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[90] 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. Roldan has been extended nationwide by the BIA to eliminate the effectiveness of state rehabilitative relief for all categories of convictions.[91]

 

            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.[92] 

 

Moreover, 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.[93]

 

            In Lopes-Chaves v. Reno,[94] the district court granted a stay of deportation on the ground that a final order of deportation was based on state convictions which 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 the convictions on the ground that the defendant had not been informed, pursuant to state statute,[95] that his admission of guilt would expose him to the risk of deportation, and the state court allowed the motions without an opinion.[96]  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. 1990)(holding that petitioner was entitled to a new deportation proceeding where the conviction was overturned for an inadequate plea colloquy).[97]

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.”[98]  The court also distinguished Molina v. INS,[99] on the same ground.[100] 

 

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.”[101]  The court, however, concluded:  “There is no record support for this allegation.”[102]

 

            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.

 

            A state conviction which had been vacated under a youthful offender statute was held still to exist for immigration purposes.[103]

 

[89] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

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

[91] Matter of Salazar Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc) (upholding Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), against equal protection challenge and finding that expungements are not effective to eliminate any conviction, including first-offense simple possession, for immigration purposes, except in the Ninth Circuit).

[92] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc).

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

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

[95] Mass. Gen. L. ch. 278, § 29D.

[96] Id. at p. *4.

[97] Id. at p. *5.

[98] Id. at 22.

[99] 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”).

[100] 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)).

[101] Id. at p. *7, n.4.

[102] Id. at p. *7, n.4.

[103] United States v. Reinoso, 350 F.3d 51 (2d Cir. November 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 a youthful offender adjudication); United States v. Driskell, 277 F.3d 150 (2d Cir. 2002).  See also United States v. Matthews, 205 F.3d 544, 548-49 (2d Cir. 2000) (holding that an adjudication under New York’s youthful offender statute does not operate as an “expungement” of the defendant’s conviction, and the conviction may be considered in calculating criminal history).

Other

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).