In the Ninth Circuit, expungements that are analogous to the FFOA are effective to eliminate all adverse immigration effects of convictions of the following offenses:

 

(1)  simple possession of any controlled substance[25]

(2)  possession of drug paraphernalia[26]

There is a strong argument that expungements also eliminate the immigration effects of additional convictions for:

 

(3)  being under the influence of drugs,[27]

(4)  being under drug influence in public,[28]

(5)  driving under the influence of drugs,[29]

(6)  visiting a place where drugs are used,[30] and

(7)  any other first conviction of a controlled substance offense that is (a) more minor in potential punishment than first-offense simple possession, and (b) not expressly forbidden under federal controlled-substances statutes.[31] 

[25] This would include California Health & Safety Code § § 11350, 11377, 11357, and the like.  Lujan, supra.

[26] California Health & Safety Code § 11364; Cardenas, supra.

[27] California Health & Safety Code § 11550.

[28] California Penal Code § 647(f) (drugs).

[29] California Vehicle Code § 23152(a) (forbidding driving under the influence of alcohol, drugs, or the combined influence of alcohol and drugs).

[30] California Health & Safety Code § 11365.

[31] This may include such offenses as prescription violations, possession of a needle under the Business and Professions Code, and the like, so long as (a) the punishment is more minor than simple possession, which, under California Health & Safety Code § 11350, is punishable by a maximum of three years in state prison, and (b) is not forbidden under federal controlled substances law.  A list of the controlled substances offenses forbidden under federal law may be found at N. Tooby, Criminal Defense of Immigrants, Appendix D (2003).  See Cardenas, supra.

BIA

POST CON - STATE REHABILITATIVE RELIEF - LUJAN DECISION ERASES QUALIFYING FIRST OFFENSE CONTROLLED SUBSTANCES CONVICTION IF RESPONDENT WOULD HAVE BEEN ELIGIBLE FOR FFOA TREATMENT EVEN IF NO STATE EXPUNGEMENT WAS OBTAINED
The BIA has held in two recent non-precedent decisions that actual expungement of a first-offense conviction of possession of a controlled substances is not required, before removal proceedings will be terminated, because Lujan and Manrique suggest that a conviction does not constitute a deportable controlled substances conviction if the respondent would have been eligible for treatment under the Federal First Offender Act if prosecuted in federal court, even if a state expungement has not yet actually been obtained and the defendant remains on probation. Matter of Vallesteros, 2004 WL 1739143 (BIA June 29, 2004)(non-precedent decision); Matter of Ceredon, 2004 WL 1739162 (BIA June 29, 2004) (non-precedent decision).

Other

POST CON RELIEF - STATE REHABILITATIVE RELIEF - NINTH CIRCUIT RULE - EXPUNGEMENTS OF MULTIPLE SIMULTANEOUS QUALIFYING FIRST DRUG CONVICTIONS ARE EFFECTIVE FOR IMMIGRATION PURPOSES
A noncitizen who pleads guilty to more than one qualifying offense is eligible for FFOA treatment provided s/he is not disqualified under the FFOA by a prior drug conviction or by a prior grant of FFOA treatment to eliminate a prior conviction. 18 U.S.C. 3607(a) does not state that a defendant is ineligible under the FFOA if the defendant has more than a "single offense." Instead, the statute states that Federal First Offender treatment is available to a person found guilty of "an offense" described in section 404 of the Controlled Substances Act provided that prior to the commission of such offense the person has not been convicted of a law related to controlled substances and has not previously been the subject of the FFOA.      The plain and unambiguous words of the statute do not exclude from FFOA treatment a defendant convicted of two or more offenses at the same time provided the other conditions apply. Giving the words of the statute their ordinary and plain meaning the respondent qualifies for FFOA treatment. As to the first count to which respondent pleaded guilty, respondent is definitely eligible for FFOA treatment because he had no controlled substance convictions prior to the commission of the offense in this case nor did he have any previous disposition under the FFOA (or a state equivalent). As to the second count he pleaded guilty to, respondent is also definitely eligible for FFOA treatment because he had no controlled substance convictions prior to the commission of the offense in this case nor did he have any previous treatment under the FFOA (or a state equivalent). Under well-established rules of statutory construction, this court need go no further in interpreting the FFOA since the statute is clear and unambiguous. American Tobacco v. Patterson, 456 U.S. 63, 68 (1982): "In construing a statute, we assume the legislative purpose is expressed by the ordinary meaning of the words used. [Citation omitted] Absent a clear expressed legislative intention to contrary, the plain language of the statute is ordinarily conclusive."      If Congress intended to limit the applicability of the FFOA to only a single offense ("one" offense) the first time a person was prosecuted for a controlled substance violation, Congress would have stated that a disposition under the FFOA was only available to a person found guilty of only "one" offense, or "one count," or "the first time the person committed any offense," or to "a single offense."      The words "an offense" are not the same as "one offense." The word "an" is an indefinite article which is used as the equivalent of the word "a" before a vowel. (The American Heritage Dictionary of the English Language (4th Ed.) (2000).) To exclude more than one offense, there would have to be an appropriate adjective to describe the noun, such as "one" offense or a "single" offense. For the FFOA to exclude a person convicted of two or more offenses with no prior controlled substance convictions and no prior FFOA treatment, the Act would have to have words of limitation modifying the word "offense." Any such words would necessarily be adjectives, not indefinite articles. For example, the government contends that the words of the statute "an offense" excludes "two offenses." But the word "two" is an adjective which describes or limits the word "offense." The word "one" is also an adjective, but that word is not used in the Act to describe or limit the word "offense." "Had Congress intended the narrow construction [urged upon it by one of the parties] it could have expressly so provided. It did not, and it would be improper for us to introduce an additional requirement on our own." United States v. Hunter, 101 F3d 82, 85 (1996); Smith v. United States, 508 U.S. 223 (1993).      If the court believes that the language of the Act is somehow ambiguous, then the court can look at legislative intent of this section which was enacted in the Drug Control Act of 1970. The House Report states:

In the case of a first prosecution for the offense of possession, the bill provides that if the defendant is found guilty or pleads guilty, the judge may, in lieu of entering a judgment of guilty Place the accused person upon probation. 3 U.S. Cong. & Admin. News 70-72. [Emphasis added.]

     Clearly, there is a difference between "first prosecution" and "one offense." The legislative history suggests that the first time the defendant comes before the criminal justice system for a controlled substance offense, the person is eligible to receive FFOA treatment. Since this is a remedial statute, it is to be interpreted liberally. Logan v. Davis, 233 U.S. 613, 628 (1914); Riggs v. Government Employees Fin. Corp., 623 F.2d 68, 70 (1980). The evident intent of Congress in providing a chance for FFOA treatment for the first time offender would be frustrated if a defendant charged with two counts with no prior convictions and no prior treatment under the Act was disqualified from eligibility for the remedial effects of the statute on account of the offenders first encounter with the criminal justice system.      In addition, if the words of the statute are deemed ambiguous, the court must interpret the words of the statute in accordance with The Dictionary Act. (1 U.S.C. 1 et. seq.). This section provides, in pertinent part, that "[i]n determining the meaning of any Act of Congress unless the context indicates otherwise[,] words importing the singular include and apply to several persons, parties, or things . . . ." (1 U.S.C. 1 (West 1997)) [Emphasis added]. Thus, the word "offense" in 18 U.S.C. 3607(a) can be read in the plural as "offenses." Read this way, there is no confusion at all in the statute and respondent prevails.      Where a statute is ambiguous, the rule of lenity also requires that the statute be interpreted to benefit the class of persons benefited by the statute. The Supreme Court of the United States has made it clear that where a criminal statute is ambiguous, as to the substantive ambit of criminal prohibitions or the penalties they impose, that "The rule of lenity" applies. United States v. Batchelder, 442 U.S. 114, 121 (1979); Simpson v. United States, 435 U.S. 6, 14-15 (1978). "This policy of lenity means that the court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." (Ladner v. United States, 358 U.S. 169, 178 (1958)).      Finally, respondents reading of the statute is consistent with other parts of the Federal Controlled Substances Act. Conviction of two or more offenses for violation of the Controlled Substances Act in the same proceeding is only a misdemeanor, provided there were no prior convictions for any Controlled Substances violations, rather than a felony under 21 U.S.C. 844(a). However, conviction of a possession offense after a prior controlled substance conviction is a felony. A felony is defined as any offense punishable with a maximum of more than one year in prison. (18 U.S.C. 3159). The section denoting the punishment for possession of a controlled substance is 21 U.S.C. 844(a). This section provides, in relevant part:

Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, . . . except that if he commits such offense after a prior conviction . . . he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years . . . .

     It would be anomalous to read the FFOA read differently or more strictly than the section on punishment for controlled substance violations. In both sections, Congress was concerned with "prior convictions" and did not specify any limitation on the number of offenses in the first prosecution and conviction.      Thanks to Michael Mehr for this argument.