State rehabilitative relief is generally ineffective to eliminate the immigration consequences of any conviction.[153]  In Matter of Roldan,[154] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[155] to hold that a state court action to “expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” does not eliminate the conviction for immigration purposes.  The BIA has extended Roldan nationwide to eliminate the effectiveness of state rehabilitative relief for all categories of convictions.[156]  The Attorney General has applied this rule to firearms convictions.[157]  State rehabilitative relief is also ineffective to remove a conviction for purposes of a Good Moral Character assessment.[158]  The circuits have generally followed this rule.[159]  The one exception exists in the Ninth Circuit for certain drug crimes (first conviction of simple possession and a few other minor offenses) that would be eligible for treatment under the Federal First Offender Act had the case been prosecuted in federal court.[160]

 

Even in light of the curtailment of the effectiveness of expungements, counsel should consider obtaining expungements in hopes of persuading additional circuits to adopt the Ninth Circuit rule, since it is based on legal reasoning far superior to the reasoning of the BIA and the two circuits that have rejected the Ninth Circuit rule.  See § 6.14, infra.

[153] James A.R. Nafziger & Michael Yimesgen, The Effect of Expungement on Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930 (2003).

[154] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc), removal order reversed, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

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

[156] Matter of Salazar-Regino, 23 I. & N.  Dec. 223 (BIA 2002) (en banc) (upholding Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc) against equal protection challenge and finding that expungements are not effective to eliminate any conviction, including first-offense simple possession, for immigration purposes, except in the Ninth Circuit).

[157] Matter of Luviano-Rodriguez, 23 I. & N. Dec. 718 (AG 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been “convicted” for immigration purposes); Matter of Marroquin, 23 I. & N. Dec. 705 (AG 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still “convicted” for immigration purposes under INA § 101(a)(48)).

[158] Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. Jan. 21, 2003) (immigration courts may consider Kansas misdemeanor convictions for theft, battery, and welfare fraud, even though they had been expunged pursuant to a state rehabilitative statute, in making a Good Moral Character determination: “See Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995) (“[T]he consequences a state chooses to place on [a] conviction in its own courts under its own laws cannot control the consequences given to the conviction in a federal deportation proceeding.” (citation omitted)).”

[159] Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (according Chevron deference to, and affirming rule of, Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA June 11, 2003), that if a court amends conviction for reasons solely related to rehabilitation or immigration hardships, as opposed to responding to procedural or substantive defects in the underlying criminal proceedings, then the noncitizen remains “convicted” for immigration purposes); see Vasquez-Velezmoro v. INS, 281 F.3d 693, 698-699 (8th Cir. 2002) (rejecting noncitizen’s contention that expunged state drug conviction is not a “conviction” for immigration purposes).

[160] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). 

POST CON RELIEF - STATE REHABILITATIVE RELIEF - INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES, AS DISTINGUISHED FROM A CONVICTION THAT HAS BEEN VACATED ON THE MERITS
Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115 (1983) (Federal firearms disabilities applied with respect to one who pled guilty to a State offense punishable by imprisonment for more than one year, even if the record of the State criminal proceeding was subsequently expunged following a successfully served term of probation: "expunction under state law does not alter the historical fact of the conviction, . . . does not alter the legality of the previous conviction[,] and does not signify that the defendant was innocent of the crime to which he pleaded guilty"); United States v. Smith, 96 F.3d 1350, 1351 (11th Cir. 1996) (per curiam); United States v. Mejias, 47 F.3d 401, 403-404 (11th Cir. 1995); see also United States v. Norbury, 492 F.3d 1012, 1014-1015 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006).

BIA

POST CON RELIEF - MODIFICATION OF RECORD OF CONVICTION SOLELY FOR IMMIGRATION PURPOSES MAY NOT BE AFFECTIVE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

POST CON RELIEF - EFFECTIVE ORDER - MODIFICATION OF RECORD OF CONVICTION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, __ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

First Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (noting that the language of 1101(a)(48)(A) "leaves nothing to the imagination" and that state rehabilitative programs that do not vacate a conviction on the merits "have no bearing in determining whether an alien is to be considered convicted under section 1101(a)(48)(A)."); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir. 1999) (federal sentencing case); Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003) (stating, in case where petitioner successfully completed a one year probation sentence for a heroin possession charge in state court that would have made him eligible for FFOA relief had he been prosecuted by the federal government, that "[t]his language unambiguously points to the conclusion that the disposition of Acosta's criminal case in [state court pursuant to a state law permitting dismissal of charge after completion of probation without verdict] constitutes a conviction "); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir.1999) (state delayed adjudication of guilt); Gill v. Ashcroft, 335 F.3d 574, 577 (7th Cir. 2003) ("Every court that has considered the subject believes that 1101(a)(48)(A) governs the handling of repeat offenders and that expungements (or restorations of civil rights) under state law do not negate a conviction for purposes of immigration law."); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); United States v. Zamudio, 314 F.3d 517, 522 (10th Cir. 2002) (adopting plain meaning of 8 U.S.C 1101(a)(48)(A) when interpreting U.S.S.G. 2L1.2(b)(1)); Resendiz-Alcaraz v. United States Atty General, 383 F.3d 1262, 1269(11th Cir. Sept. 10, 2004) ("clear language of the statute [INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) definition of conviction] includes [as convictions] state convictions expunged under state rehabilitative laws").

Second Circuit

POST CON RELIEF " CONVICTION VACATED SOLELY FOR REHABILITATIVE REASONS
Sutherland v. Holder, 769 F.3d 144 (2d Cir. Oct. 8, 2014) (Arizona conviction for attempted possession for sale of four or more pounds of marijuana was vacated by an Arizona state court, but remains valid for federal immigration and removability purposes, since the order vacating the conviction was obtained under Arizona Revised Statutes 13-907 solely for rehabilitative reasons).

POST CON RELIEF " REHABILITATIVE RELIEF " INEFFECTIVE UNLESS BASED ON LEGAL DEFECT
Wellington v. Holder, 623 F.3d 115 (2d Cir. Oct. 20, 2011) (No. 09-4111) (a Certificate of Relief or similar state rehabilitative treatment does not preclude use of the underlying offense as a basis for removal or as a basis for ineligibility for relief, where the state treatment was not related to a procedural or substantive defect in the criminal proceedings).

POST CON RELIEF " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT
Wellington v. Holder, 623 F.3d 115 (2d Cir. Oct. 20, 2010) (We hold that an alien who receives state rehabilitative treatment for a removable offense under 8 U.S.C. 1182(a)(2)(A)(i)(II) remains "convicted" of that offense pursuant to the definition of "conviction" in the Immigration and Nationality Act, see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), even if the alien would have been eligible for relief under the Federal First Offender Act had she been prosecuted in federal court. See 18 U.S.C. 3607.).

POST CON RELIEF - CONVICTION - EFFECTIVE ORDER - NONCITIZEN REMAINS CONVICTED FOR IMMIGRATION PURPOSES EVEN IF A STATE CONVICTION HAS BEEN VACATED UNDER A REHABILITATIVE STATUTE
Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007) ("the BIA has reasonably concluded that an alien remains convicted of a removable offense for federal immigration purposes when a state vacates the predicate a conviction pursuant to a rehabilitative statute."), citing Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000), and following Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th Cir. 2007) ("We deny the petitions for review on the ground that the state court's vacation of Sanusi's conviction was ineffective for immigration purposes because it was done solely for the purpose of ameliorating the immigration consequences to petitioner.") (citing Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS
Chhetry v. US Dep't of Justice, 490 F.3d 196 (2d Cir. Jun. 20, 2007) (BIA may not take administrative notice of facts without affording other party to rebut the inferences drawn from those facts).

Lower Courts of Second Circuit

EXPUNGEMENT - FALSE STATEMENT FOR IMMIGRATION BENEFIT
Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (the fact that applicant stated that he had not been arrested [after prior indication that he had] was not an intentional misstatement to the government where applicant could have believed that the expungement of the records of those arrests meant that he could state to the government that he had no longer been arrested). http://bibdaily.com/pdfs/Szpak%207-25-07.pdf

Fifth Circuit

POST-CON RELIEF - EFFECTIVE VACATUR - FIFTH CIRCUIT
Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (court recognizes the DHS will follow Pickering even in the Fifth Circuit: "we vacated the Discipio I opinion because the Government modified its position and terminated deportation proceedings against Discipio because his conviction had been vacated on procedural and substantive defects, the Government bowing to the BIA's opinion in In re Pickering.FN10 See Discipio II, 417 F.3d at 449-50.")

POST CON - EXPUNGEMENT FOREIGN
Danso v. Gonzales, 489 F.3d 709 (5th Cir. June 15, 2007) (rejecting equal protection argument that noncitizens British expungement should be given effect for immigration purposes where noncitizen could hypothetically have availed himself of the expungement procedures set forth in the Federal First Offenders Act (FFOA)).

Seventh Circuit

POST-CON RELIEF " STATE REHABILITATIVE RELIEF " EXPUNGEMENT " REHABILITATIVE EXPUNGEMENT REMAINS A CONVICTION FOR IMMIGRATION PURPOSES
Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010) (expungement of a conviction for a drug charge involving cocaine upheld as a conviction for INA purposes, because guilty plea was set aside and dismissed for ameliorative purposes, not for any procedural or substantial defects in the proceedings.), following Ali v. Ashcroft, 395 F.3d 722, 727 (7th Cir. 2005), Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003). PCN:8.3;CD4:11.18;AF:6.12;CMT3:10.11;SH:4.27

Ninth Circuit

POST CON RELIEF - EFFECT OF VACATUR - REHABILITATIVE PURPOSE
Mendoza v. Holder, 606 F.3d 1137 (9th Cir. Jun. 2, 2010) (conviction still exists after vacatur granted for rehabilitative purposes only; any vacatur granted under Ariz.Rev.Stat. 13-907 is rehabilitative, and therefore still a conviction for immigration purposes), following Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001).

POST CON RELIEF - STATE REHABILITATIVE RELIEF
United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. Aug. 18, 2009) (defendant's prior expunged California convictions were not expunged for purposes of the Sentencing Guidelines, because under California law the expunged convictions in question could still be used at a later time in a variety of circumstances).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF DOES NOT ELIMINATE CONVICTION FOR PURPOSES OF IMPOSING FEDERAL CONTROLLED SUBSTANCE SENTENCE ENHANCEMENT
United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - LOPEZ STRENGTHENS ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE FEDERAL FIRST OFFENDER ACT ELIMINATES QUALIFYING CONVICTIONS FOR IMMIGRATION PURPOSES
United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF IS GENERALLY INEFFECTIVE TO ELIMINATE A CONVICTION FOR IMMIGRATION PURPOSES
Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) ("[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state's rehabilitative statute.").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF IS GENERALLY INEFFECTIVE TO ELIMINATE A CONVICTION FOR IMMIGRATION PURPOSES
Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) ("[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state's rehabilitative statute.").

Other

POST CON RELIEF " EFFECTIVE POST-CONVICTION ORDER " CONVICTION
In an EOIR Newsletter, an article describes the difference in immigration consequences between a conviction vacated on a ground of legal invalidity, and one expunged solely for purposes of rehabilitation or to avoid immigration consequences: The expungement of a record of conviction is [t]he removal of a conviction (esp. for a first offense) from a persons criminal record. Blacks Law Dictionary 621 (8th ed. 2004). A vacatur is [t]he act of annulling or setting aside [or a] rule or order by which a proceeding is vacated. Id. at 1546. In the immigration context, the difference between a vacatur and an expungement involves intent. Criminal courts typically expunge convictions in order to rehabilitate offenders or, in the case of noncitizens, to prevent negative immigration consequences. Criminal courts typically vacate convictions because the convictions are substantively defective, for example a due process or the right to counsel violations at trial. Accordingly, this article uses the term vacatur to mean removal of a conviction because of substantive defects in the conviction and uses the term expungement to mean removal of a conviction to rehabilitate or to prevent immigration consequences. Some courts use the terms vacatur and expungement differently, however, and some courts use entirely different terms to express these concepts. The Act is silent as to whether a criminal conviction that has been vacated or expunged has immigration consequences. The Attorney General, the Board, and, with one exception, the circuit courts of appeals have adopted the following rule: [I]f a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a conviction within the meaning of section 101(a) (48)(A). If, however, a court vacates [or expunges] a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the respondent remains convicted for immigration purposes. Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003) (footnote omitted). Accord Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006); Alim v. Gonzales, 446 F.3d 1239, 1248"49 (11th Cir. 2006); Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir. 2005); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Sandoval v. INS, 240 F.3d 577, 583 (7th Cir. 2001); Matter of Marroquin-Garcia, 23 I&N Dec. 705, 713 (A.G. 2005). The Fifth Circuit, by contrast, has held that convictions vacated for any reason, including substantive defects, retain their immigration consequences. Garcia-Maldonado v. Gonzales, 491 F.3d 284, 291 (5th Cir. 2007). Josh Adams, Treatment of Criminal Convictions in the Immigration Context, 2 Immigration Law Advisor (October 2008) (emphasis in original), http://www.justice.gov/eoir/vll/ILA-Newsletter/ILA%20Vol%202/vol2no10.pdf.

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.

POST CON RELIEF - EFFECTIVE ORDER - STATE REHABILITATIVE RELIEF
Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context. Therefore, Matter of Roldan and subsequent cases holding that rehabilitative relief does not eliminate a conviction do not apply in this context. Thanks to Manny Vargas. Immigration counsel can also argue that post-conviction relief effectively eliminates the conviction. Thanks to Katherine Brady.

PRACTICE ADVISORY " POST CON RELIEF " TEXAS " GROUNDS " INVALID PLEA " INEFFECTIVE ASSITANCE OF COUNSEL "CONVICTION " DEFERRED ADJUDICATION
Texas law conflicts with federal immigration law as to whether deferred adjudication constitutes a conviction. Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) (Deferred adjudication is not a conviction.). But see Matter of Punu, 22 I. & N. Dec. 224, 230 (B.I.A. 1998) (holding that deferred adjudication in Texas constitutes a conviction for purposes of immigration law). This may give Texas defendants a ground of legal invalidity by which to set aside their convictions, if they were incorrectly informed the Deferred Adjudication disposition does not constitute a conviction, whereas it does constitute a conviction under federal immigration law. This may render the plea not knowing, intelligent, free or voluntary. It may also constitute a ground of ineffective assistance of counsel, in violation of Padilla v. Kentucky, because of affirmative misadvice or failure to advise that this disposition does indeed constitute a conviction for immigration purposes.