Criminal Defense of Immigrants


§ 21.18 (F)

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(F)  Expungements.  Expungements generally do not erase a criminal conviction for immigration purposes.[159]  They do work, however, in two situations.  First, expungement under the Federal First Offender Act.  Second, for a noncitizen within the Ninth Circuit who has had a first-time simple possession type offense expunged that could have been expunged under the FFOA, if s/he has been prosecuted in federal court.[160]  See § 21.36, infra.  Within the Ninth Circuit, expungements of “lesser offenses” including possession of paraphernalia[161] and being under the influence of a controlled substance[162] may also be effective.  There is also a strong argument that expungements work for multiple possession (or lesser) counts brought before a judge in a single criminal proceeding, since then there is no prior disposition to disqualify the defendant from eligibility for Federal First Offender Act treatment.[163]

[159] See Matter of Roldan, 22 I. N. Dec. 486 (BIA 1999) (en banc).

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

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

[162] See § 21.21, infra.

[163] See § § 21.19, 21.36, infra.



Ninth Circuit

Pagayon v. Holder, 642 F.3d 122, 2011 WL 2508239 (9th Cir. Jun. 24, 2011) (per curiam) (California conviction of possession of a controlled substance, under Health & Safety Code 11377(a), constituted a controlled substances conviction, triggering deportation under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), where respondents admission in removal proceedings he pleaded to guilty as charged established the drug involved as methamphetamine which was listed in federal drug schedules).