Different jurisdictions employ different terminology, sometimes to describe the same thing.  It is important to determine whether a procedure vacates a conviction on the merits, or whether it constitutes a form of state rehabilitative relief.

 

            Alaska.  An Alaska “set aside” pursuant to AS § 12.55.085 is “rehabilitative,” yet an “expungement” on the merits would probably eliminate the immigration consequences of a conviction as a substantive matter.[52]

 

California.  The Ninth Circuit has held that California rehabilitative relief effectively eliminates the adverse immigration consequences of a qualifying controlled substances conviction where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.  The constitutional basis of this decision prevents the Board of Immigration Appeals from adopting a different rule.  Referring to Garberding v. INS,[53] and Paredes-Urrestarazu v. INS,[54] the court stated:

 

[T]he BIA is not free to adopt any policy it chooses with respect to state rehabilitative laws, regardless of its arbitrariness or lack of constitutionality.  Our decisions in Garberding and Paredes require, as a matter of constitutional equal protection, that the benefits of the Act be extended to aliens whose offenses are expunged under state rehabilitative laws, provided that they would have been eligible for relief under the Act had their offenses been prosecuted as federal crimes.  Paredes, 36 F.3d at 811-12; Garberding, 30 F.3d at 1191.  As there is no rational basis for a federal statute that treats persons adjudged guilty of a drug offense under state law more harshly than persons adjudged guilty of the identical offense under federal law, the petitioners may not be deported for their first-time simple drug possession offenses.

 

Therefore, the Board of Immigration Appeals may not adopt a different rule as a matter of policy.

 

Canada.  The Ninth Circuit held that Canadian state rehabilitative relief effectively eliminated qualifying first-offense drug convictions for immigration purposes.[55]

 

Montana.  The Ninth Circuit held that Montana state rehabilitative relief effectively eliminated qualifying convictions for immigration purposes.[56]

 

[52] See Journey v. State, 895 P.2d 955 (Alaska 1995).

[53] Garberding v. INS, 30 F.3d 1187, 1189 (9th Cir. 1994).

[54] Paredes-Urrestarazu v. INS, 36 F.3d 801, 811 (9th Cir. 1994).

[55] Dillingham v. INS, 267 F.3d 996, 1004-06 (9th Cir. 2001) (due process incorporates equal protection requirements; the United States must have a rational basis on which to distinguish between similarly situated classes of noncitizens in imposing immigration consequences of a criminal conviction).

[56] Garberding v. INS, 30 F.3d 1187, 1189 (9th Cir. 1994).

Other

POST CON - EXPUNGEMENT - UTAH
Utah expungements are governed by Utah Crimnal Code Title 77, 18-11, which does not allow expungements of offenses Utah calls (a) capital felony, (b) first degree felony, (c) second degree forcible felony, or (d) any sexual act against a minor.