Criminal Defense of Immigrants

 

(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)