At the present time, the prospects for extending this rule to other circuits do not appear great.[39]  Although the issue should not be abandoned, it does not appear likely that other courts of appeals will follow Lujan in the wake of the Salazar-Regino decision.  Opinions from the First, [40] Second,[41] Third,[42] Fifth[43] and Seventh Circuit[44] Courts on related questions indicate they will likely follow the BIA approach.

 

[39] Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (state delayed adjudication of guilt); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir.1999) (federal sentencing case); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n. 8 (4th Cir. 2001) (non-precedential — foreign conviction allegedly expunged); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir.1999) (state delayed adjudication of guilt); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged).

[40] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000).

[41] See 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)).

[42] Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. August 15, 2003) (even if not a conviction under state law, deferred adjudication constitutes a conviction under immigration law; Third Circuit rejects Lujan-Armendariz v. INS rationale as contrary to statutory language, and providing no basis for equal protection claim).

[43] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. November 11, 2002) (order vacating federal conviction, not on the merits, does not erase it for immigration purposes: “Renteria-Gonzalez contends that he no longer has a conviction, because the district court vacated his conviction in 1992.  The INS responds that the Order to Vacate is null for lack of subject matter jurisdiction or, in the alternative, that a properly vacated federal conviction remains valid for purposes of the immigration laws, even if a district court has purported to vacate the conviction to avoid the immigration-related consequences of the conviction. ¶  We conclude that, though the INS may not now collaterally attack the Order to Vacate, the vacated conviction remains valid for purposes of the immigration laws.”); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999).

[44] Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. July 8, 2003) (Illinois “410 probation” and subsequent dismissal continues to be a conviction under federal law, even if not a conviction under state law; Lujan-Armendariz v. INS rejected as upholding an “abandoned administrative practice over statutory text”).

Eleventh Circuit

STATE REHABILITATIVE RELIEF - EFFECT OF EXPUNGMENT
Resendiz-Alcaraz v. United States Atty General, __ F.3d __ (11th Cir. Sept. 10, 2004) (expunged controlled substance conviction still a conviction for immigration purposes).