This chapter will describe the immigration effects of three forms of state rehabilitative relief:

 

(1)    state record-clearance relief that is obtained in criminal courts as a reward for successful completion of probation or other evidence of rehabilitation to clear defendants’ criminal convictions from their records without any finding that they are legally invalid, see § § 8.2-8.12, infra;

(2)    judicial recommendations against deportation (JRADs) that were, prior to November 29, 1990, granted by criminal sentencing judges to eliminate deportation and other immigration consequences of convictions of crimes of moral turpitude and aggravated felonies, see § § 8.21-8.37, infra; and

(3)    executive pardons granted by state governors and the President of the United States, which remove many immigration consequences of convictions of crimes of moral turpitude, aggravated felonies, and high speed chase from an immigration checkpoint. See § § 8.38-8.44, infra.

 

Since the convictions later eliminated by these forms of rehabilitative relief may trigger adverse immigration consequences until they have been ameliorated, some discussion is given to ways in which those consequences can be forestalled until the relief can in fact be obtained. See § § 8.13-8.19, infra.

 

First Circuit

CONVICTION - PUERTO RICO TREATED LIKE A STATE
Puerto Rico is considered equivalent to a state, for purposes of determining whether a noncitizen was convicted of a crime for deportation purposes, giving the same effect to its judicial decrees as if they were orders of a state court and the same effect to its legislative enactments as it would to state statutes. Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28 U.S.C. 1738 (extending full faith and credit doctrine to Puerto Rico); 48 U.S.C. 734 (providing that, unless otherwise specified, federal statutes applicable to states apply to Puerto Rico)); see also Cruz v. Melecio, 204 F.3d 14 (1st Cir. 2000). Persons born in Puerto Rico are United States citizens, although there are some issues if the birth date was prior to 1941. INA 302, 8 U.S.C. 1402.

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.

Ninth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - 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 - FEDERAL EX FELON WITH GUN CHARGE DISMISSED SINCE ARIZONA CIVIL RIGHTS, INCLUDING RIGHT TO POSSESS FIREARMS, HAD BEEN FULLY RESTORED
United States v. Simpson, __ F.3d __ (9th Cir. Mar. 27, 2006) (federal indictment charging defendant with being a felon in possession of a firearm is dismissed where defendant's civil rights had been fully restored and nothing in Arizona law expressly prohibited defendant from possessing a firearm following the end of his probation).

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

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).