Criminal Defense of Immigrants

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).