Federal First Offender Act-like treatment in state court eliminates all immigration consequences of first offense simple possession of any drug or gratuitous distribution of a “small amount” of marijuana where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.[23]

 

            The rule has been extended to convictions of possession of drug paraphernalia and logically includes other more minor controlled-substance convictions of offenses that are not prohibited under federal law, such as being under the influence of drugs, or being in a place in which drugs are used.[24] 

 

[23] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); 21 U.S.C. § 841(b)(4).

[24] Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

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

STATE REHABILITATIVE RELIEF - DRUG CASES - NINTH CIRCUIT - LUJAN WORKS DESPITE PRIOR NO-PLEA DIVERSION DISMISSAL
     "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 definition of conviction found at 8 U.S.C. 1101(a)(48)(a), diversion under the California statute in effect at the time petitioner received the disposition does not constitute a conviction. 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)).      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 under 8 U.S.C. 1101(a)(48)(a). In addition, this disposition does not constitute "a disposition under this subsection [8 U.S.C. 3607(a)]."

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

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).

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.

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 - STATE REHABILITATIVE RELIEF - DISMISSAL FOR SUCCESSFUL COMPLETION OF PROPOSITION 36 PROGRAM EFFECTIVELY ELIMINATED SIMULTANEOUS CONVICTIONS OF TWO QUALIFYING OFFENSES
Nunez-Reyes v. Holder, ___ F.3d ___, 2010 WL 1630897 (9th Cir. Apr. 23, 2010) (per curiam) (California court order dismissing under Penal Code 1210.1 a felony conviction for possession of methamphetamine, under Health & Safety Code 11377(a), and misdemeanor conviction of being under the influence of methamphetamine, under Health & Safety Code 11550(a), effectively eliminated both convictions for immigration purposes, so they no longer constituted controlled substances convictions creating a bar to cancellation of removal).

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 - 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 - EFFECTIVE ORDER - CONTROLLED SUBSTANCES - STATE REHABILITATIVE RELIEF
Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given "pretrial diversion" treatment on a prior offense, even though "pre-trial diversion" does not require the noncitizen to enter a plea of guilty to a controlled substances offense).

ARGUMENT " STATE REHABILITATIVE RELIEF " VALID LUJAN TREATMENT OF FIRST OFFENSE MAY ALLOW SECOND POSSESSION CONVICTION TO QUALIFY FOR CONTROLLED SUBSTANCES UNDER ONE OUNCE MARIJUANA EXCEPTION TO DEPORTABILITY
In de Jesus Melendez v. Gonzales 503 F.3d 1019 (9th Cir. 2007), the court held that a previous state ameliorative diversion barred a second rehabilitative dismissal from receiving Federal First Offenders Act treatment, even though the first disposition would not have qualified as a conviction under the INA. Because it was a second state ameliorative treatment equal protection requires no more. id. This does not prevent a noncitizen from avoiding deportation in the following scenario: The first disposition qualifies for FFOA treatment under Lujan, so it is not a conviction for any purpose. 18 U.S.C. 3607 provides that a FFOA disposition 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. Theres nothing in 18 U.S.C. 3607 saying that once all the requirements have been fulfilled, the disposition can revert to being treated as a conviction, based on later conduct. Therefore, the second conviction of simple possession may qualify for a statutory exception to deportability, because the second conviction is still a conviction of a single offense. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i). Unlike a drug conviction that has only been waived for the purpose of a ground of removal under former INA 212(c), a conviction treated under the FFOA and Lujan is not a conviction for any purpose. Thanks to Jonathan Moore.

POST-CON - STATE REHABILITATIVE STATUTES - LUJAN - CONVICTION MUST BE EXPUNGED TO AVOID REMOVAL
Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although Oregon expungement would erase simple possession conviction, if granted, the immigration authorities may remove noncitizen before expungement is granted; court distinguished between situation where, as here, noncitizen had not yet made any attempt to begin expungement, and where the noncitizen is in process of obtaining an expungement by court order).

Tenth Circuit

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).

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.

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 - 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.

STATE REHABILITATIVE RELIEF - FEDERAL FIRST OFFENDER ACT - PRIOR NO-PLEA DIVERSION MAY DISQUALIFY IMMIGRANT FROM LUJAN TREATMENT OF EXPUNGEMENT OF SECOND CASE
Criminal defense counsel should not count on a defendant being considered eligible for Lujan treatment of a conviction following a second arrest for possession or another qualifying offense, where the defendant previously received a no-plea diversion dismissal of a previous drug charge. Immigration counsel, however, can argue that a no-plea diversion is not a prior treatment "under this subdivision," so it does not disqualify the defendant from FFOA treatment of a second case.

POST CON RELIEF - STATE REHABILITATIVE RELIEF - LOPEZ STRENGTHENS LUJAN
The Lopez decision uses a uniform federal standard to determine whether a possession conviction constitutes an aggravated felony, and uses the federal criminal drug statutes to set the bar. Counsel outside the Ninth Circuit can argue that this decision strengthens the Ninth Circuits reasoning in Lujan for the argument that state possession offenses expunged under state law that would have hypothetically qualified for FFOA treatment should be considered expunged for immigration purposes.

POST CON RELIEF - STATE REHABILITATIVE STATUTES - PRIOR DRUG CONVICTION FOR SOLICITATION OR INVOLVING STATE, NOT FEDERAL DRUG, DISQUALIFIES A DEFENDANT FROM FFOA TREATMENT AND THUS AN EFFECTIVE LUJAN EXPUNGEMENT
A second conviction of possession of a federally listed controlled substance, preceded by a prior conviction of solicitation to commit a controlled substances offense, can potentially constitute an aggravated felony drug trafficking offense. This is because the solicitation prior can constitute a prior, in federal court, to elevate the second possession conviction to an aggravated felony. A solicitation conviction is not interpreted under the criminal recidivist provisions as it is under the federal immigration laws, because different language is used. The same is true of the Federal First Offender Act, 18 U.S.C. 3607. A prior drug conviction will disqualify a defendant from FFOA treatment, if it is a crime under state law, even if it does not involve a federally listed offense and even if it is a solicitation conviction.

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 " 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