Criminal Defense of Immigrants

 

(A)  General Rule.  In Matter of Roldan,[184] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[185] 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.

 

This decision is limited to situations in which a state court clears a state conviction from the record pursuant to a “state rehabilitative statute,” rather than on a ground of legal invalidity.[186]

 

This nationwide BIA rule has been followed in the majority of the circuits considering it.[187]  

 

The Ninth Circuit has upheld Roldan in all other respects.  In Murillo-Espinoza v. INS,[188] the Ninth Circuit concluded that an expunged theft conviction with a sentence of one year or more still qualified as an aggravated felony.  With cursory consideration, the court upheld the BIA’s position that expungements do not eliminate the immigration effects as an exercise of Chevron deference to agency determinations.[189] 

 

The Board of Immigration Appeals has since reaffirmed its position in Roldan that expungements do not operate to negate the immigration effects of a conviction.  In Matter of Salazar-Regino,[190] the Board considered whether to extend the Lujan decision nationwide and, over a vigorous dissent,[191] declined to do so.  Rather, the Board found that Congress intended to abolish the effectiveness of expungements for all classes of convictions and did not provide for an exception for first-offense drug cases.  It also rejected the argument that equal protection compelled honoring an expungement or rehabilitative dismissal in state court if the defendant would have been eligible for first-offender treatment in federal court, as was held in Lujan.  Some circuits have followed this reasoning, and rejected the Ninth Circuit approach.[192]

 

The Board is bound to apply circuit court precedent within each jurisdiction.  Therefore, Lujan remains good law in the Ninth Circuit, unless overruled en banc by that court.  Although the issue should not be abandoned, it does not appear likely that other courts of appeals will follow Lujan in the wake of the Salazar-Regino decision.  Opinions from the First, Second, Fifth and Seventh Circuits on related questions indicate they will likely follow the BIA approach.[193]

 

Therefore, it is now clear that counsel in jurisdictions other than the Ninth Circuit cannot rely upon an expungement to eliminate the immigration effects of a conviction, even in those drug cases that would have been prosecuted in federal court under the FFOA.  In the Ninth Circuit, convictions and sentences that are vacated under state rehabilitative statutes will continue to exist to trigger adverse immigration consequences except to the extent (first offense non-trafficking drug convictions) that Lujan and its progeny dictate otherwise.

 

Outside the first-offense minor drug area in the Ninth Circuit, it is thus necessary to vacate a conviction on some ground of legal invalidity, rather than by a state rehabilitative statute, in order to ensure its elimination as a trigger for adverse immigration consequences.  Direct attack, whether by writ of habeas corpus, coram nobis, or nonstatutory motion to vacate is by far the safer route. 

 

Therefore, if a conviction is vacated on constitutional grounds, or for violation of a state or federal statute, rather than under a state rehabilitative statute, the conviction is legally invalid, and may no longer provide the basis for removal or other adverse immigration consequences.

[184] 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).

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

[186] 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).

[187] 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); Ramos v. Gonzales, 414 F.3d 800 (7th Cir. July 12, 2005) (Nebraska conviction for attempted possession of cocaine, in violation of Neb.Rev.Stat. § § 28-201, 28-416 (2003), continued to constitute a “conviction,” for removal purposes, even though it had been expunged pursuant to a rehabilitative statute, Neb.Rev.Stat. § 29-2264, resulting in an order stating that “the adjudication previously entered by this Court is hereby set aside and nullified, and the Court further orders that all civil disabilities and disqualifications imposed as a result of said adjudication are hereby removed” and a later order stating rehabilitation had not played a part in the order, rejecting an argument that Equal Protection required granting the same effect to this state court order as would have been granted to an order under the Federal First Offender Act, 18 U.S.C. § 3607), following Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th Cir. 2003); Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the BIA law in place at the time the plea of guilty was entered), following Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999); Resendiz-Alcaraz v. United States Att’y General, 383 F.3d 1262 (11th Cir. Sept. 10, 2004) (expunged controlled substance conviction still a conviction for immigration purposes).

[188] Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).

[189] Judicial deference to an agency decision is governed by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-453 (1984).

[190] Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc).

[191] The dissent maintained that the Roldan decision was wrongly decided and, that by enacting the definition of “conviction” in INA § 101(a)(48)(A), Congress intended only to modify BIA precedent so that a guilty plea is sufficient to establish a conviction, even where adjudication of guilt is withheld.  Moreover, Congress gave no indication that it intended to supercede the FFOA when setting forth a definition of “conviction,” according to the dissent.  Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (Rosenberg, Board Member, dissenting).  A separate dissenting opinion by Board Member Moscato persuasively emphasized the importance of the FFOA as establishing a safety-value so that a first-offense drug conviction will not destroy a young life, which is so often the case for legal permanent residents who are deported based on one drug conviction.  Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (Moscato, Board Member, dissenting). 

[192] Ballesteros v. Gonzales, 482 F.3d 1205 (10th Cir. Mar. 29, 2007) (state conviction constituted conviction for immigration purposes, despite grant of state expungement analogous to Federal First Offender Act treatment), following Elkins v. Comfort, 392 F.3d 1159, 1163-64 (10th Cir. 2004) (foreign drug conviction, even if it would have qualified for FFOA, remained a conviction for immigration purposes); United States v. Zamudio, 314 F.3d 517, 521-22 (10th Cir. 2002) (“[A] plea in abeyance [in another jurisdiction] satisfies the definition of conviction laid out in [the immigration statute].”); Matter of Salazar-Regino, 23 I. & N. Dec. 223, 235 (BIA 2002) (“except in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [immigration act].”).

[193] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000); United States v. Campbell, 167 F.3d 94 (2d Cir. 1999); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); see Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).