Criminal Defense of Immigrants


§ 11.17 V. Effective Rehabilitative Relief

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Convictions that were eliminated under state rehabilitative statutes without any claim of legal invalidity will generally continue to exist for immigration purposes.  See § 11.18, infra.  The Federal First Offender Act provides for withholding judgment, followed by dismissal, for first convictions in federal court of simple possession of any controlled substance.  After dismissal, this disposition shall not be used against the defendant for any purpose whatsoever, which includes immigration purposes.  See § 11.19, infra.  The Ninth Circuit has held that equal protection requires the same treatment be afforded to state and foreign rehabilitative relief where the defendant would have qualified for Federal First Offender Act treatment if prosecuted in federal court.  See § 11.20, infra.



Fourth Circuit

Dung Phan v. Holder, 667 F.3d 448 (4th Cir. Feb. 1, 2012) (District of Columbia conviction of distribution of cocaine constituted a conviction of a drug trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of triggering a permanent statutory bar to showing good moral character, for purposes of naturalization, since the courts order setting aside the conviction, under the District of Columbia Youth Rehabilitation Act, D.C.Code 24"906(e), was done for rehabilitative goals, which do not bar the use of the conviction in the immigration context).

Fifth Circuit

Gaona-Romero v. Gonzales, 497 F.3d 694, 649 (5th Cir. 2007) (after Disipio was decided, "[t]he government undertook a policy review to determine how removal cases arising in the Fifth Circuit that involve vacated convictions should be treated. The government concluded that it would not seek that removal decisions be upheld pursuant to Renteria, but rather would request remand to the BIA so that the government could take action in accord with Pickering."); citing Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005) (remanding case in which criminal conviction had been vacated on a ground of legal invalidity to the Board of Immigration Appeals to allow for dismissal of removal proceedings in accordance with Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (convictions vacated for procedural or substantive defects will not be considered a valid convictions for immigration purposes)). Note: Since Gaona, the BIA has not issued a published opinion on the issue, but has consistently applied Pickering to cases arising in the Fifth Circuit, holding that a vacated conviction may not be used as conviction under the INA so long as the vacatur is unrelated to immigration or rehabilitative reasons. See In Re Alexis Ruiz Alvarez, A205 653 283 - CLE, 2013 WL 3200544 (BIA June 4, 2013) (the United States Government, through the Department of Justice's Office of Immigration Litigation, has advised the Fifth Circuit that it would not seek to uphold removal orders premised upon an application of Renteria-Gonzalez As such, this Board evaluates the effect of a vacatur under the rubric set forth in Matter of Pickering.); see also In Re Son Hoang Nguyen, A097 683 305 - DAL, 2013 WL 2608424 (BIA May 16, 2013); In Re Francisco Flores Alcala A.K.A. Francisco Flores A.K.A. Francisco Alcala Flores, : A200 762 691 - DAL, 2013 WL 2610047 (BIA May 9, 2013); In Re Sergio Gustavo Rangel-Juarez, A038 829 107 - EL, 2012 WL 3276562 (BIA July 16, 2012); In Re Daniel Sierra, : A074 026 895 - LOS, 2011 WL 2470936 (BIA June 1, 2011) (we conclude that the respondent's motion should be adjudicated in accordance with this Board's decisions in Matter of Pickering.); In Re Hugo Angel Robles A.K.A. Hugo Gonzalez Robles, A087 021 860 - HOU, 2011 WL 400460 (BIA Jan. 19, 2011). Regarding its consistent application of Pickering over Renteria-Gonzalez in the Fifth Circuit, the BIA has explained, We observe that, in certain circumstances, a federal court may defer to an agency's interpretation of a statute which is within the agency's jurisdiction to administer even if the agency's interpretation is inconsistent with the jurisprudence of that court. In Re: Francisco Flores Alcala A.K.A. Francisco Flores A.K.A. Francisco Alcala Flores, A200 762 691 - DAL, 2013 WL 2610047 (BIA May 9, 2013) (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)). Thanks to Amber L. Weeks.

Eleventh Circuit

Garces v. US Atty. Gen., 611 F.3d 1337 (11th Cir. Jul. 27, 2010) (noncitizen whose drug trafficking conviction was vacated on the basis that the plea was not voluntary may still be found inadmissible for reason to believe that the noncitizen has engaged in drug trafficking, and the DHS may use police reports, the vacated conviction, and the motion to vacate itself to make a reason to believe determination; in this case, the submitted records were insufficient since the record did not show whether the noncitizen entered a plea of guilt or a plea of no contest, and the submitted police reports only made conclusions [he had engaged in drug trafficking], rather than describing a set of facts that would be sufficient to warrant such a conclusion). NOTE: This is a very good case to read on the topic of reason to believe and the admissibility of evidence in immigration proceedings.