There are two circumstances in which the defendant is not eligible for FFOA treatment of a guilty finding of a qualifying offense:

 

(1)     The person cannot have “been convicted of violating a Federal or State law relating to controlled substances;” and

(2)     The person cannot have “previously been the subject of a disposition under this subsection . . . .” [33]

 

In other words, if the defendant has a prior state or federal drug conviction of any kind, s/he is disqualified from FFOA treatment of the current conviction for possession of a controlled substance.  Second, if the person has previously received FFOA treatment, s/he is disqualified from receiving FFOA treatment for the current (second) offense.

 

            If the defendant has received some form of “first offender” treatment in state court that does not constitute a conviction, that would not disqualify him or her from FFOA treatment for a current offense for which s/he was “found guilty” as provided in the FFOA.  For example, many states have a form of pre-plea diversion in which criminal proceedings are suspended prior to entry of a plea, and the defendant is therefore never found guilty under any definition at all of that offense.  Since no plea was entered, there was never any “conviction” under immigration law.[34]  Moreover, the defendant had never previously “been convicted of violating a Federal or State law relating to controlled substances . . . .” [35] as required to disqualify him or her from receiving FFOA treatment for a new offense.

 

            In addition, if a defendant had previously been convicted of a state drug offense, but had received state rehabilitative relief to eliminate that conviction under state law, that person technically would not be disqualified from receiving the benefits of the FFOA for a later federal possession conviction, since that person would not have “previously been the subject of a disposition under this subsection . . . .”[36]  The person would have received first-offender treatment not under the federal FFOA, but under an analogous state rehabilitative statute.  If this legislation is interpreted strictly in favor of the defendant, and all reasonable doubts are construed in favor of the defendant,[37] then this defendant could indeed, in strict compliance with the wording of the statute, receive FFOA treatment a for this second conviction if the first time was under state, not federal, law.  On the other hand, the immigration authorities could argue with some plausibility that prior FFOA and prior state rehabilitative treatment should be treated as equivalent for this purpose, even though the statute does not so provide in so many words.  Therefore, it would not be wise to place too much confidence in this interpretation of the statute.

[33] 18 U.S.C. § 3607(a)(1) & (2).

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

[35] 18 U.S.C. § 3607(a)(1).

[36] 18 U.S.C. § 3607(a)(2) [emphasis supplied].

[37] The right against conviction except on proof beyond a reasonable doubt is protected by the due process clause of the Fourteenth Amendment of the United States Constitution against state interference.  Mullaney v. Wilbur, 421 U.S. 684 (1975); Cool v. United States, 409 U.S. 100, 104  (1972) (“The Constitution requires proof beyond a reasonable doubt.”); In re Winship, 397 U.S. 358 (1970).  If this principle is weakened, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”  Stack v. Boyle, 342 U.S. 1, 4  (1951).

Tenth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - FOREIGN RELIEF - CONVICTION FOR POSSESSION OF MARIJUANA CONSTITUTED INADMISSIBLE CONTROLLED SUBSTANCES CONVICTION, EVEN THOUGH FOREIGN REHABILITATIVE RELIEF HAD BEEN GRANTED, SINCE DEFENDANT HAD BEEN PLACED ON TWO YEARS PROBATION, SINCE FEDERAL FIRST OFFENDER ACT PROVIDED FOR ONLY ONE YEAR PROBATION

Elkins v. Comfort, ___ F.3d ___ (10th Cir. Dec. 21, 2004) (affirming denial of adjustment of status on account of Korean conviction of possession of marijuana, with two-year probation term, since Federal First Offender Act provided for only one-year probation term, so conviction still existed to trigger ground of inadmissibility).
http://laws.lp.findlaw.com/10th/031184.html