(B)  Ninth Circuit Exception.  In Lujan-Armendarez v. INS, however, the Ninth Circuit overturned Roldan on equal protection grounds, holding that the new IIRAIRA definition of conviction did not invalidate the Federal First Offender Act, and that state expungements therefore continue to eliminate all immigration consequences of convictions of first offense simple possession of controlled substances where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.[194]

 

                (1)  Offenses Covered.  The rule has been extended to convictions of possession of drug paraphernalia and perhaps other more minor controlled-substance convictions of offenses that are not prohibited under federal law, such as being under the influence of drugs, or being in a place in which drugs are used.[195] 

 

(2)  Multiple Qualifying Convictions.  Under the language of the FFOA, it may be possible to obtain a Lujan-safe expungement where two simple possession acts and convictions exist, if (1) at the time of commission of the second possession offense, the defendant had not yet been convicted of the first, and (2) both convictions are expunged at the same time, since at the time of the second conviction, the defendant did not have a prior disqualifying conviction and had never before received FFOA treatment.[196]

 

                A second controlled substances offense may be expunged under Lujan in the Ninth Circuit as long as the first conviction had not become final by the time of the second conviction.[197]

 

                For an extended discussion of circumstances under which rehabilitative relief serves effectively to eliminate the adverse immigration effects of minor, first-offense controlled substances convictions in the Ninth Circuit, and arguments that can be made in other circuits not yet reaching these questions, see N. Tooby, Post-Conviction Relief for Immigrants § § 8.2-8.20 (2004).

 

(3)  Immigration Effects of Effective Expungement.  A qualifying expungement protects the noncitizen not only against deportation, but also against inadmissibility, since the FFOA protects the defendant against use of the disposition for any purpose whatsoever.  See § 6.13, supra.  These noncitizens are also protected against inadmissibility for having made an admission, because of a longstanding BIA rule that where a case is addressed in criminal proceedings and a disposition results that is less than a conviction, the person cannot be found inadmissible for having “admitted” the offense. Neither the prior guilty plea, or even a subsequent admission to an immigration official, will make them inadmissible for admitting the elements of the offense.  See § 18.8, infra.

 

                (4)  Effective Where Expungement Efforts Have Begun, But Have Not Yet Been Granted.  In Lujan-Armendariz v. INS,[198] the noncitizen’s conviction had been expunged at the time of the lower court ruling.  Since then, the Ninth Circuit has not ruled in a case in which the expungement has not already been granted.  Nevertheless, the language of Lujan-Armendariz and more recent Ninth Circuit cases indicates that the Ninth Circuit does not require that expungement actually be granted before the noncitizen will be protected by the Federal First Offender Act.  In Lujan, the court stated:

 

Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Act’s provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either. (Whatever the case, the result would be applicable to first-time drug possession offenders prosecuted under state statutes, as well.)  However, we need not resolve this issue in order to decide the petitions for review before us. In both cases here, the pertinent findings had already been expunged before the BIA decisions were issued.[199]

A noncitizen is therefore not deportable if s/he has “not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted.”  This is because the Ninth Circuit’s “review of the history and purpose of the Act strongly suggests that such a person is protected by the Act’s provisions.”[200]

                The Ninth Circuit more affirmatively stated this position in Chavez-Perez v. Ashcroft,[201] but again in dictum:

We express no opinion about whether this reasoning would apply with equal force to the situation the Lujan-Armendariz court specifically identified, where an alien has a finding of guilt on his record but the actual conviction is deferred pending successful completion of probation.  See 222 F.3d at 746 n.28 (referring to ‘deferred adjudication’ statutes).  Aliens sentenced under such schemes do not have a “conviction” on their record at any time during probation.  However, because we are not faced with that situation here, that question must continue to remain open for another day.[202]

In Chavez-Perez v. Ashcroft, the Ninth Circuit held that although an Oregon expungement would erase a simple possession conviction, if granted, the immigration authorities may remove noncitizen from the United States before the expungement has been granted.[203]  The Ninth Circuit distinguished between the situation in which, as here, noncitizen had not yet made any attempt to begin expungement, and the situation in which the noncitizen is in process of obtaining an expungement by court order.

                At least where noncitizens have begun the process of obtaining expungements, which, if granted, would effectively eliminate the convictions, they “do not have a conviction on their record at any time during probation,” and as such are protected from removal by the Federal First Offender Act.[204]

 

                (5)  Disqualifying Factors.  Some first offender programs call for dismissal of the charges with no prior plea of guilty of no contest.  In California, for example: “At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program.”[205]  Therefore, under the statutory definition of conviction in the INA,[206] a prior grant of diversion under the California “no-plea” diversion statute does not constitute a conviction.[207]  A prior no-plea California diversion disposition therefore does not disqualify a noncitizen from eligibility for FFOA treatment under Lujan of a subsequent possession conviction. A disposition of diversion that did not require a plea of guilty or no contest and does not constitute a conviction under the statute.[208]  In addition, this disposition does not constitute “a disposition under this subsection” so as to disqualify a person from eligibility for Federal First Offender Act treatment.[209]

 

                The Federal First Offender Act 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.[210]  This provision does not include foreign, local, military, or tribal convictions as a disqualification for this relief. See § 7.26, supra.

 

[194] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[195] Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

[196] Thanks to Ann Benson for this analysis.

[197] Smith v. Gonzales, 468 F.3d 272 (5th Cir. Oct. 24, 2006) (for purposes of the Controlled Substances Act, a conviction does not become final until time for direct appeal and time for discretionary review have elapsed).

[198] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[199] Id. at 746 n.28.

[200] Id. at 746 n.28.

[201] Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004).

[202] Id. at 1293 (emphasis added).

[203] Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004).

[204] Thanks to John Vawter.

[205] California Penal Code § § 1001.3 et seq.

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

[207] See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California no-plea diversion, held not to be a conviction under Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988)).

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

[209] Federal First Offender Act, 8 U.S.C. § 3607(a).

[210] 18 U.S.C. § 3607(a)(1)

POST CON RELIEF - STATE REHABILITATIVE RELIEF - EFFECTIVE IF ELIGIBLE FOR FFOA TREATMENT AND EXPUNGEMENT IS IN PROCESS PURSUANT TO A COURT ORDER
In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the noncitizen's conviction had been expunged at the time of the lower court ruling. Since then, the Ninth Circuit has not ruled in a case in which an expungement or deferred dismissal process was in progress, but not yet completed. Nevertheless, the Ninth Circuit has suggested that if a noncitizen is in such a process, s/he can argue that the DHS cannot deport on the basis of the conviction-pending-expungement. In Lujan, the court stated:

Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Acts provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either. (Whatever the case, the result would be applicable to first-time drug possession offenders prosecuted under state statutes, as well.) However, we need not resolve this issue in order to decide the petitions for review before us. In both cases here, the pertinent findings had already been expunged before the BIA decisions were issued. Id. at 746 n.28.

The Ninth Circuit more affirmatively states this position in Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004), but again in dictum:

We express no opinion about whether this reasoning would apply with equal force to the situation the Lujan-Armendariz court specifically identified, where an alien has a finding of guilt on his record but the actual conviction is deferred pending successful completion of probation. See 222 F.3d at 746 n.28 (referring to 'deferred adjudication' statutes). Aliens sentenced under such schemes do not have a "conviction" on their record at any time during probation. However, because we are not faced with that situation here, that question must continue to remain open for another day. Id. at 1293 (emphasis added).

In Chavez-Perez v. Ashcroft, 386 F.3d 1284, 2004 WL 2389907 (9th Cir. Oct. 27, 2004), the court held that although an Oregon expungement would erase a simple possession conviction, the immigration authorities may remove noncitizen from the United States before the expungement has been granted. The Ninth Circuit, in dicta, distinguished between the situation in which the noncitizen had not yet made any attempt to begin expungement (as in Chavez-Perez), and the situation in which the noncitizen is in process of obtaining an expungement by court order.

Thanks to John Vawter.

Ninth Circuit

POST CON RELIEF " STATE REHABILITATIVE RELIEF " CALIFORNIA " EXPUNGEMENTS REMAIN EFFECTIVE SO LONG AS CONVICTION PREDATES NUNEZ-REYES " REQUEST TO CORRECT FAM
9 FAM 40.21(b)a(2) includes the Lujan exception to controlled substances inadmissibility, but requires an advisory opinion before a Lujan exception will be granted. This FAM provision is found at http://www.state.gov/documents/organization/86942.pdf Note that the FAM authors misunderstood and misstated the holding of Nunez-Reyes v. Holder, 646 F.3d 684 (Jul. 14, 2011), when they stated that "state judicial expungements that predate this decision can still be effective for immigration purposes in the Ninth Circuit." This is only partly correct. The correct summary of Nunez-Reyes on this point is that state judicial expungements for convictions that predate this decision can still be effective. That decision held: For those aliens convicted before the publication date of this decision, Lujan"Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan"Armendariz is overruled. Id. at 694. Thanks to Michael Mehr, who has requested the FAM editors to correct this error.

POST CON RELIEF " STATE REHABILITATIVE RELIEF " NINTH CIRCUIT " STATE EXPUNGEMENTS WILL NO LONGER ELIMINATE IMMIGRATION CONSEQUENCES UNDER LUJAN FOR CONVICTIONS AFTER JUL. 14, 2011
Nunez-Reyes v. Holder, 646 F.3d 684, 690, 694, 2011 WL 2714159 (9th Cir. Jul.14, 2011) (en banc) (state rehabilitative relief for qualifying first controlled substances convictions will no longer eliminate immigration consequences for convictions entered after Jul.14, 2011: the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA. . . . For those aliens convicted before the publication date of this decision, Lujan"Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan"Armendariz is overruled.); overruling Lujan-Armendariz v. INS, 222 F.3d 728, 743 n.24 (9th Cir. 2000) (constitutional guarantee of equal protection required Congress to treat expunged federal convictions and expunged state convictions the same way).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - DISMISSAL FOR SUCCESSFUL COMPLETION OF PROPOSITION 36 PROGRAM EFFECTIVELY ELIMINATED SIMULTANEOUS CONVICTIONS OF TWO QUALIFYING OFFENSES
Nunez-Reyes v. Holder, ___ F.3d ___, 2010 WL 1630897 (9th Cir. Apr. 23, 2010) (per curiam) (California court order dismissing under Penal Code 1210.1 a felony conviction for possession of methamphetamine, under Health & Safety Code 11377(a), and misdemeanor conviction of being under the influence of methamphetamine, under Health & Safety Code 11550(a), effectively eliminated both convictions for immigration purposes, so they no longer constituted controlled substances convictions creating a bar to cancellation of removal).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), that was expunged under Penal Code 1203.4(a), no longer constituted a conviction for purposes of establishing a statutory bar to showing Good Moral Character, under INA 101(f)(3), 8 U.S.C. 1101(f)(3)), following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT - MULTIPLE SIMULTANEOUS CONVICTIONS
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (remanding to BIA for its decision in the first instance the open question whether Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) eliminates the immigration effects of multiple simultaneous qualifying first-offense controlled substances convictions because the defendant would not have been disqualified from Federal First Offender Act treatment if prosecuted in federal court).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), that was expunged under Penal Code 1203.4(a), no longer constituted a conviction for purposes of establishing a statutory bar to showing Good Moral Character, under INA 101(f)(3), 8 U.S.C. 1101(f)(3)), following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT - MULTIPLE SIMULTANEOUS CONVICTIONS
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (remanding to BIA for its decision in the first instance the open question whether Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) eliminates the immigration effects of multiple simultaneous qualifying first-offense controlled substances convictions because the defendant would not have been disqualified from Federal First Offender Act treatment if prosecuted in federal court).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - EFFECTIVE ORDER - CONTROLLED SUBSTANCES - STATE REHABILITATIVE RELIEF
Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given "pretrial diversion" treatment on a prior offense, even though "pre-trial diversion" does not require the noncitizen to enter a plea of guilty to a controlled substances offense).

ARGUMENT " STATE REHABILITATIVE RELIEF " VALID LUJAN TREATMENT OF FIRST OFFENSE MAY ALLOW SECOND POSSESSION CONVICTION TO QUALIFY FOR CONTROLLED SUBSTANCES UNDER ONE OUNCE MARIJUANA EXCEPTION TO DEPORTABILITY
In de Jesus Melendez v. Gonzales 503 F.3d 1019 (9th Cir. 2007), the court held that a previous state ameliorative diversion barred a second rehabilitative dismissal from receiving Federal First Offenders Act treatment, even though the first disposition would not have qualified as a conviction under the INA. Because it was a second state ameliorative treatment equal protection requires no more. id. This does not prevent a noncitizen from avoiding deportation in the following scenario: The first disposition qualifies for FFOA treatment under Lujan, so it is not a conviction for any purpose. 18 U.S.C. 3607 provides that a FFOA disposition shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose. Theres nothing in 18 U.S.C. 3607 saying that once all the requirements have been fulfilled, the disposition can revert to being treated as a conviction, based on later conduct. Therefore, the second conviction of simple possession may qualify for a statutory exception to deportability, because the second conviction is still a conviction of a single offense. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i). Unlike a drug conviction that has only been waived for the purpose of a ground of removal under former INA 212(c), a conviction treated under the FFOA and Lujan is not a conviction for any purpose. Thanks to Jonathan Moore.

Tenth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - WYOMING DEFERRED ENTRY OF PLEA AND SENTENCE NOT EQUIVALENT TO FEDERAL FIRST OFFENDER ACT EXPUNGEMENT
Gradiz v. Gonzales, 490 F.3d 1206, ___, (10th Cir. Jun. 20, 2007) (Wyoming deferred entry of plea and sentence, under Wyo. Stat. 7-13-301 ("Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five (5) years."), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. 3607, for purposes of avoiding a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes).

Other

CONTROLLED SUBSTANCES " INADMISSIBILITY " CONSULAR PROCESSING
The relevant Foreign Affairs Manual notes have been updated to explain how Nunez-Reyes is not retroactive, but basically states that if the Federal First Offender Act issue comes up, the agent should seek an Advisory Opinion. At least one has advised to apply Lujan if the applicant will be seeking admission at a Port of Entry in the Ninth Circuit. See 9 FAM 40.21(a) N3.2-2 Expunging Conviction Under U.S. Law (CT:VISA-1784; 12-09-2011); 9 FAM 40.21(b) N4.1-3 Applying State Equivalents to 21 U.S.C. 844(b)(1) (TL:VISA-223; 12-12-2000); 9 FAM 40.21(b) N4.1-4 Requests for Advisory Opinions (CT:VISA-1008; 09-05-2008); 9 FAM 40.21(b) N4.1-6 Action After Conviction (CT:VISA-1790; 12-16-2011).

POST CON RELIEF " STATE REHABILITATIVE RELIEF
Kathy Brady, Immigrant Legal Resource Center, Practice Advisory, Immigrant Defendants with a First Minor Drug Offense: Rehabilitative relief will no longer eliminate a first conviction for simple possession for immigration purposes, unless the conviction occurred before 7/14/11; Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. Jul.14, 2011) (en banc), overruling Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) for purposes of convictions received on or after Jul.14, 2011.

PRACTICE ADVISORY " POST CON RELIEF " CONGRESS INTENDED ONLY VALID CONVICTIONS TO TRIGGER REMOVAL
The Ninth Circuit explained that applying common sense definition of conviction would not thwart the will of Congress: But Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime; Congress intended such results only for those who were duly convicted, with all the constitutional protections of our criminal justice system. Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights. As discussed above, many alien defendants fell into neither category. Instead, they pleaded guilty and waived their constitutional rights with a wholly uninformed understanding of the consequences of their plea. Contrary to their understanding that there would be no immigration consequences, the actual consequence is the severe penalty of removal. Nothing in the statute or its history, purpose, or effect suggests that Congress intended adverse immigration consequences for those whose waiver of constitutional rights turned out to be so ill-informed. Indeed, the Supreme Court has instructed that such a gross misunderstanding of the immigration consequences of a plea, when caused by incompetent counsel, rises to the level of a constitutional violation. Padilla, 130 S. Ct. at 1486-87. We conclude that retroactive application of our decision today will not further the purposes of the immigration laws. Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. Jul. 14, 2011) (en banc). The same reasoning applies to granting post-conviction relief where the underlying conviction was legally invalid.

POST CON RELIEF - STATE REHABILITATIVE RELIEF - LOPEZ STRENGTHENS LUJAN
The Lopez decision uses a uniform federal standard to determine whether a possession conviction constitutes an aggravated felony, and uses the federal criminal drug statutes to set the bar. Counsel outside the Ninth Circuit can argue that this decision strengthens the Ninth Circuits reasoning in Lujan for the argument that state possession offenses expunged under state law that would have hypothetically qualified for FFOA treatment should be considered expunged for immigration purposes.

ARTICLE -- POST CON RELIEF - STATE REHABILITATIVE RELIEF - NINTH CIRCUIT - ARGUMENTS CALIFORNIA DEFERRED ENTRY OF JUDGMENT DOES NOT FALL WITHIN CHAVEZ-PEREZ
      Under Lujan-Armendariz, is a noncitizen protected from deportation based on a conviction during the time he or she waits to be able to withdraw the plea pursuant to state rehabilitative relief? The Ninth Circuit observed in Lujan-Armendariz that the history and purpose of the FFOA strongly suggests that the person should be protected during this period. However, the majority in the panel opinion in Chavez-Perez v. Ashcroft held that under the Oregon expungement statute at issue, a conviction that would have qualified for Lujan-Armendariz treatment once it was expunged continued to exist for immigration purposes until the expungement was granted. Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004). Mr. Chavez-Perez was a first-time possession offender who was brought into removal proceedings when he still had a few years of probation to complete before he would be able to expunge his conviction. The majority ordered his removal, despite the fact that, once granted, the expungement would have eliminated the conviction for immigration purposes. The majority stated that it was ruling only on the type of expungement statute at issue in the case, in which relief after completion of probation is granted as a matter of discretion by the convicting court and is not mandated by the court at the time of plea. (See Or. Rev. Stat. 137.225(1)(a), (3).) The opinion left open the possibility that Lujan-Armendariz protection will apply pending dismissal of charges in the case of a deferred adjudication, or other disposition where a court orders that charges will be dismissed upon completion of probation.

     Strategy. The only guarantee to obtaining effective Lujan-Armendariz protection is to secure rehabilitative relief that eliminates the conviction before a removal order has become final. If this does not happen, defense strategy will depend upon the type of state rehabilitative relief that is potentially available. Under Chavez-Perez, protection is not afforded by an expungement, set-aside or vacatur, like that set out in Ore. Rev. Stat. 137.225, where judgment was imposed and could be subsequently eliminated as a matter of discretion under a separate general expungement statute. In contrast, advocates have a strong argument, although no on-point authority, that a disposition in a deferred adjudication, or pursuant to a statute where automatic dismissal after completion of probation is contemplated at the time of conviction, is not a conviction for immigration purposes during the waiting period. See discussion in the dissent in Chavez-Perez.

     Immigration counsel should try to distinguish the state vacatur statute at issue from Ore. Rev. Stat. 137.225(a)(1), (a)(5), or contest the holding in Chavez-Perez. During this litigation, if the expungement becomes available counsel should obtain it, and obtain remand and reopening if possible. Criminal defense counsel may be able to create a record that assists in this argument by adding language to the criminal disposition that strengthens the expectation that compliance with conditions of probation "will" or "shall" result in dismissal e.g., an agreement that such a motion will be unopposed.

     Analyzing state statutes. Counsel should examine the state statute at issue to determine whether it falls within Chavez-Perez, and to identify arguments that it does not. Chavez-Perez ruled on an order granted under Ore. Rev. Stat. 137.225(1)(a), (3), which allows for the record of conviction to be set aside after completion of three years probation. Section 137.225 is a generic statute, separate from the conviction procedure, which permits any defendant with a conviction within various classes to apply to the court to set aside the conviction. ORS 137.225(1)(a), (5). The dismissal is not mandatory: the court may consider evidence and testimony and decide if a set-aside is warranted. ORS 137.225(3).

     To take California statutes as an example, a deferred entry of judgment under Calif. PC 1000 clearly does not come within the Chavez-Perez ruling. Relief is mandatory: California Penal Code 1000.3 provides that upon successful completion of probation, the court "will" dismiss the charges. Although a guilty plea is taken, the statute explicitly provides that there never is a conviction for state purposes as long as the defendant successfully completes probation.

     Several states have programs that provide for automatic drug counseling and probation rather than jail for first-time offenders. Counsel should check the particular state statute to determine whether it contains language mandating dismissal of the case upon successful completion of probation. This is the case with the "Prop 36" drug counseling program in California under Calif. Penal Code 1210, which provides that, if a nonviolent drug possession offender complies with mandatory treatment and probation, the conviction "shall" be set aside, and the indictment "shall" be dismissed. This dismissal of the charge against a person sentenced under 1210.1 is anticipated at time of judgment and sentencing. The government may argue that 1210.1 should be controlled by Chavez-Perez since the disposition is termed a "conviction." However, Chavez-Perez turned on the requirement that there be a legal order mandating the dismissal of charges following probation, which here is provided in the section under which the plea is taken.

     Where possible, criminal defense counsel should obtain an order from the court at plea acknowledging that the plea and charges will be withdrawn upon successful completion of probation under the applicable section. Where that did not happen, however, these dispositions should still meet this Chavez-Perez requirement. A statutory mandate that a guilty plea taken under the section "will" be withdrawn upon completion of probation should be held to be at least the legal equivalent of a court order to that effect.

In California, Penal Code 1203.4 is a general expungement statute. The government will assert that 1203.4 comes within Chavez-Perez because, like the Oregon statute at issue there, 1203.4 can apply to a variety of offenses and is not incorporated into the section under which the defendant pleads guilty to simple possession. Unlike the Oregon statute, however, PC 1203.4 provides automatic, not discretionary, relief: it provides that a court must dismiss a plea to a qualifying offense if probation is successfully completed. Although the withdrawal of plea is not incorporated into the section under which the defendant pleads guilty, as it is in Calif. Penal Code 1000 and 1210.1, supra, California law still provides, from the moment of plea to a qualifying offense, that the defendant is automatically entitled to expungement upon completion of probation. In contrast, under Or. Rev. Stat. 137.225(3) the court may decide to grant the order if it determines that circumstances warrant; see also Wash. Rev. Code 9.94A.640 or 9.96.060, providing that the court may grant relief.

     Even if 1203.4 were held to come within the Chavez-Perez bar, it still could present a defense advantage in a situation where counsel was able to bargain for a short period of probation at sentencing, or to close probation early, so that an expungement could be obtained quickly. Then the noncitizen will have the sure protection of actually having the expungement, rather than merely having a strong argument that, e.g., a deferred entry of judgment ought not to be considered a conviction during the mandated probationary period before the plea will be withdrawn.

     The best possible option to protect a noncitizen defendant from exposure to removal is an informal or formal arrangement for a deferred prosecution, where the case is continued while the defendant fulfills certain conditions, with the understanding that the prosecution will consider dropping the charges based on good performance. Then there never is a conviction.

POST CON RELIEF - STATE REHABILITATIVE STATUTES - PRIOR DRUG CONVICTION FOR SOLICITATION OR INVOLVING STATE, NOT FEDERAL DRUG, DISQUALIFIES A DEFENDANT FROM FFOA TREATMENT AND THUS AN EFFECTIVE LUJAN EXPUNGEMENT
A second conviction of possession of a federally listed controlled substance, preceded by a prior conviction of solicitation to commit a controlled substances offense, can potentially constitute an aggravated felony drug trafficking offense. This is because the solicitation prior can constitute a prior, in federal court, to elevate the second possession conviction to an aggravated felony. A solicitation conviction is not interpreted under the criminal recidivist provisions as it is under the federal immigration laws, because different language is used. The same is true of the Federal First Offender Act, 18 U.S.C. 3607. A prior drug conviction will disqualify a defendant from FFOA treatment, if it is a crime under state law, even if it does not involve a federally listed offense and even if it is a solicitation conviction.

STATE REHABILITATIVE RELIEF - EXPUNGEMENT - WHETHER THE CUSTODY DISQUALIFIES RESPONDENT FROM LUJAN EXPUNGEMENT
Whether serving time in jail prevents a person whose conviction has been expunged from qualifying under Lujan-Armendariz is an open question in the Ninth Cir. See, Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir. 2009). See also, Fernandez-Bernal v. Attorney General of U.S., 57 F.3d 1304 (11th Cir 2001) (relief under FFOA 3607(b) is not available to an individual sentenced to a term of probation that exceeds one year; nor is it available to anyone sentenced to jail time). Thanks to Stacy Tolchin

POST CON RELIEF " FEDERAL " EXPUNGEMENTS " FEDERAL FIRST OFFENDER ACT " EX POST FACTO ARGUMENT AGAINST APPLICATION OF REPEAL TO PREVIOUSLY GRANTED EXPUNGEMENTS
Immigration counsel can argue that failure to honor Federal First Offender Act dispositions, or their analogues, would violate the Ex Post Facto provisions of the United States Constitution. See United States v. Gardner, 860 F.2d 1391, 1399, n.2 (7th Cir. 1988) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution); United States v. Countryman, 758 F.2d 574, 579 n. 2 (11th Cir.1985) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution). See Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974) (before the repeal of the Federal Youth Corrections Act, the BIA held that an FYCA expungement eliminated the fact of a conviction for immigration purposes). After the repeal of the Federal Youth Corrections Act, but before Congress enacted a definition of conviction in IIRIRA, the BIA continued to hold that an FYCA expungement eliminated the fact of a conviction for immigration purposes. See Castano v. INS, 956 F.2d 236, 237 n.3 (11th Cir. 1992) (recognizing post-repeal BIA policy). Thanks to Dan Kesselbrenner