The immigration authorities should defer instituting deportation proceedings based on an expungeable conviction until the non‑citizen has completed probation and had a reasonable opportunity to obtain the expungement; the immigration court has the discretion to grant a continuance until the noncitizen has completed probation and obtained an expungement.[46]

 

            As Katherine Brady and Dan Kesselbrenner have written:

 

            Judges have the right and should exercise their discretion to continue deportation proceedings that are based on potentially expungeable convictions of crimes involving moral turpitude, as the BIA did in Tinajero, or even firearms.  The Operations Instruction mandating holding such cases in abeyance is on the books, and the Service should not be permitted to violate its own official policy at whim in a way that prejudices a respondent.  Under Luviano, sympathetic judges who wish to use Tinajero as legal justification to continue hearings may do so.  (Note that Luviano has been certified to the Attorney General for consideration of the issue of whether California expungements work for firearms convictions) . . . .[47]

 

“[I]t is the usual administrative practice that action in the deportation case be deferred to await completion of probation and extinction of sentence.”[48] The possibility that post-conviction relief will be granted in the future upon satisfactory completion of probation, however, has been deemed not to impair the finality of the conviction.[49]  See § 8.39, infra.

 

It is even questionable, at least in the Ninth Circuit, whether Congress intended to allow such proceedings to occur at all.  In Lujan, the Ninth Circuit expressly left open the question whether the immigration authorities had the power to deport a noncitizen on the basis of a conviction for which state rehabilitative relief would eventually provide relief:

 

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 Act's 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. [50]

Therefore, in the Ninth Circuit, counsel should raise the issue that Congress did not intend to allow deportation where relief would ultimately be possible.

 

It makes no sense to invest scarce governmental resources in the prosecution of removal proceedings against a foreign national where the sole cause of removal — a first-offense controlled substances conviction, or other qualifying conviction — will be eliminated for immigration purposes by state rehabilitative relief. 

[46] INS Operations Instructions 242.1a(28); Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980), cited with approval in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  See California Criminal Law And Immigration, § 4.6.  More recently, in Matter of Luviano-Rodriguez, 21 I. & N. Dec. 235 (BIA 1996) (en banc), the BIA held that while Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980), imposed no mandate on the Immigration Judge, it noted the INS had a policy to defer initiation of deportation proceedings against aliens who are eligible to have a criminal conviction expunged, and granted an INS motion to remand pursuant to that policy.  Luviano held the Immigration Judge had discretion to grant or deny the continuance in firearms cases, and, in dictum, in moral turpitude cases, and held the IJ will not be overturned on appeal unless respondent was denied a full and fair hearing, citing Matter of Perez-Andrade, 19 I. & N. Dec. 433 (BIA 1987); 8 C.F.R. § 242.13 (1995).  It held that since the conviction had now been expunged, and the BIA remanded the record for further proceedings, no prejudice resulted from the Immigration Judge's denial of a continuance in this case.  Matter of Luviano-Rodriguez, 21 I. & N. Dec. 235 (BIA 1996) (en banc).  The AG certified Luviano for reconsideration several years ago, but has not yet issued a new decision.  It’s holding relating to the effectiveness of expungements of firearms convictions has been superceded by Roldan and Sandoval, but it may still be persuasive on the continuance issue.

[47] K. Brady & D. Kesselbrenner, Chapter 7, Recent Developments in the Immigration Consequences of Crimes in NLG Immigration Seminar Materials (October 1996); Immigrant Legal Resource Seminar Materials (November 1996), p. 90.

[48] C. Gordon, Immigration Law and Procedure, § 71.05[1][c][ii], citing Matter of G, 9 I. & N. Dec. 159 (AG 1961), in effect modifying Matter of V, 7 I. & N. Dec. 242 (BIA 1956).  See Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980) (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of the conviction).

[49] Matter of RR, 7 I. & N. Dec. 478 (BIA 1957).

[50] Lujan-Armendariz v. INS, 222 F.3d 728, 746 n.28 (9th Cir. 2000).

Other

FIREARMS OFFENSE - STATE REHABILITATIVE RELIEF DOES NOT ELIMINATE FIREARMS CONVICTION FOR DEPORTATION PURPOSES
Matter of Luviano, 23 I. & N. Dec. 718 (AG Jan. 18, 2005) (firearms conviction expunged pursuant to California state rehabilitative relief statute, Penal Code 1203.4(a), remained a conviction for immigration purposes under the statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)).