Criminal Defense of Immigrants

(B)  State Rehabilitative Relief.  Obtaining an expungement or other form of state rehabilitative relief will not eliminate the immigration consequences of a conviction for a crime of moral turpitude.  See § 11.18, supra.[171]  It may still be worthwhile to obtain rehabilitative relief to lessen the impact of the conviction as a negative factor in discretionary decisions.

[171] The BIA held in Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc) that the new definition of conviction in IIRAIRA eliminated the effectiveness of expungements entirely.  The Ninth Circuit reversed this conclusion in part, finding that equal protection prevented the imposition of immigration consequences for crimes of first-offense simple possession, possession of paraphernalia, and other minor drug offenses that are not forbidden under federal law, which would be eliminated under the Federal First Offender Act.  Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); see also Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).  Thereafter, however, in Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001), the Ninth Circuit concluded that an expunged theft conviction with a sentence of one year or more still qualified as an aggravated felony.  The BIA then re-affirmed the Roldan decision in Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc), and rejected the equal protection argument advanced by Lujan.  Therefore, under the BIA and Ninth Circuit precedent, an expungement will no longer remove the immigration effects of a crime of moral turpitude.  Counsel can attempt to challenge this position in federal circuits in which the question is still open.  See § 11.20, supra.