Criminal Defense of Immigrants


§ 21.20 (F)

Skip to § 21.

For more text, click "Next Page>"

(F)  Expungement.  Since expungement works, under either Federal or Ninth Circuit law, only for a first time simple possession (or simultaneous conviction of multiple offenses[169]), any subsequent conviction for simple possession (or lesser offense) will remain for immigration purposes even if it has been expunged.  See § 21.36, infra.  Expungement of a first conviction should still be effective to eliminate its immigration consequences where this rule is recognized, even if the noncitizen has a subsequent offense.

[169] See § 21.19, supra.



Seventh Circuit

United States v. Pacheco-Diaz, __ F.3d __, 2007 WL 3071682 (7th Cir. Oct. 23, 2007) (Illinois conviction for felony simple possession of marijuana, in violation of 720 ILCS 550/4, is an aggravated felony for sentencing purposes where noncitizen has prior possession conviction; court rejected argument that state court must have proven prior conviction as an element of the second conviction, finding that it only needs to be hypothetically possible that the noncitizen could have been subject to the federal recidivist enhancement).