Criminal Defense of Immigrants

A conviction is generally not erased, for immigration purposes, by expungement.  In Matter of Roldan,[333] the Board of Immigration Appeals relied on the IIRAIRA statutory definition of conviction[334] to hold that a state court action to “expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” does not eliminate the conviction for immigration purposes.  The BIA has extended Roldan nationwide to eliminate the effectiveness of state rehabilitative relief for all categories of convictions.[335] 

The only exception is where the conviction has received treatment under the Federal First Offender Act[336]  (“FFOA”), or (strictly within the Ninth Circuit), the noncitizen received an expungement under state law and would have been eligible for FFOA treatment had s/he been prosecuted under federal law. Outside the Ninth Circuit, and outside the first-offense minor drug area it is thus necessary to vacate a conviction on some ground of legal invalidity, rather than by a state rehabilitative statute, in order to ensure its elimination as a trigger for adverse immigration consequences.[337]

[333] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999)(en banc), removal order reversed, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

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

[335] Matter of Salazar-Regino, 23 I. & N.  Dec. 223 (BIA 2002) (en banc) (upholding Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc) against equal protection challenge and finding that expungements are not effective to eliminate any conviction, including first-offense simple possession, for immigration purposes, except in the Ninth Circuit).

[336] 18 U.S.C. § 3607.

[337] See Chapter 11, supra.