Criminal Defense of Immigrants
§ 21.36 F. Effective Rehabilitative Relief
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A conviction is generally not erased, for immigration purposes, by expungement. In Matter of Roldan, the Board of Immigration Appeals relied on the IIRAIRA statutory definition of conviction 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.
The only exception is where the conviction has received treatment under the Federal First Offender Act (“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.
 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).
 INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
 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).
 18 U.S.C. § 3607.
 See Chapter 11, supra.
CONTROLLED SUBSTANCES " UNDER THE INFLUENCE " STATE REHABILITATIVE RELIEF DOES NOT ELIMINATE IMMIGRATION CONSEQUENCES
Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. Jul. 14, 2011) (en banc) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), continued to exist to trigger adverse immigration consequences of a controlled substances conviction, despite state rehabilitative relief that would have eliminated the immigration consequences of the conviction under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), because this offense was not less serious than simple possession of a controlled substance, and was therefore not covered under the Federal First Offender Act, 18 U.S.C. 3607); overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), was eligible for the same immigration treatment under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), as those convicted of first-offense drug possession under the Federal First Offender Act, 18 U.S.C. 3607).
CONTROLLED SUBSTANCES " STATE REHABILITATIVE RELIEF " NINTH CIRCUIT " STATE EXPUNGEMENTS WILL NO LONGER ELIMINATE IMMIGRATION CONSEQUENCES UNDER LUJAN FOR CONVICTIONS OCCURRING AFTER JULY 14, 2011
Nunez-Reyes v. Holder, 646 F.3d 684, 690, 694, 2011 WL 2714159 (9th Cir. Jul.14, 2011) (en banc) (state rehabilitative relief for qualifying first controlled substances convictions will no longer eliminate immigration consequences for convictions entered after Jul.14, 2011: the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA. . . . For those aliens convicted before the publication date of this decision, Lujan"Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan"Armendariz is overruled.); overruling Lujan-Armendariz v. INS, 222 F.3d 728, 743 n.24 (9th Cir. 2000) (constitutional guarantee of equal protection required Congress to treat expunged federal convictions and expunged state convictions the same way).
POST CON RELIEF " FEDERAL REHABILITATIVE RELIEF " FFOA
Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. Jul.14, 2011) (en banc) (a federal conviction, later expunged under the Federal First Offender Act (FFOA), nevertheless constitutes a conviction for immigration purposes. Importantly, the FFOA mandates that a successfully expunged federal conviction shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose. 18 U.S.C. 3607(b) (emphases added).); following on this point Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).
POST CON RELIEF - EFFECTIVE ORDER - CONTROLLED SUBSTANCES - STATE REHABILITATIVE RELIEF
Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given "pretrial diversion" treatment on a prior offense, even though "pre-trial diversion" does not require the noncitizen to enter a plea of guilty to a controlled substances offense).
SAFE HAVEN - DUI DRUGS
Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) (expungement eliminates conviction of possession of paraphernalia, by analogy to the FFOA and simple possession, because this offense is a misdemeanor that is not forbidden under federal drug laws, and it would be absurd if the FFOA did not cover it). Counsel can apply the same reasoning applies to misdemeanor driving under the influence of drugs. Additionally, "drugs" in the context of driving under the influence of drugs may include any substance, such as dirt, water, or aspirin that impairs the ability to drive, as is the case in California. Cal. Vehicle Code 312.
CONTROLLED SUBSTANCES " INADMISSIBILITY " CONSULAR PROCESSING
The relevant Foreign Affairs Manual notes have been updated to explain how Nunez-Reyes is not retroactive, but basically states that if the Federal First Offender Act issue comes up, the agent should seek an Advisory Opinion. At least one has advised to apply Lujan if the applicant will be seeking admission at a Port of Entry in the Ninth Circuit. See 9 FAM 40.21(a) N3.2-2 Expunging Conviction Under U.S. Law (CT:VISA-1784; 12-09-2011); 9 FAM 40.21(b) N4.1-3 Applying State Equivalents to 21 U.S.C. 844(b)(1) (TL:VISA-223; 12-12-2000); 9 FAM 40.21(b) N4.1-4 Requests for Advisory Opinions (CT:VISA-1008; 09-05-2008); 9 FAM 40.21(b) N4.1-6 Action After Conviction (CT:VISA-1790; 12-16-2011).
CONTROLLED SUBSTANCES " STATE REHABILITATIVE RELIEF
Kathy Brady, Immigrant Legal Resource Center, Practice Advisory, Immigrant Defendants with a First Minor Drug Offense: Rehabilitative relief will no longer eliminate a first conviction for simple possession for immigration purposes, unless the conviction occurred before 7/14/11; Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. Jul.14, 2011) (en banc), overruling Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) for purposes of convictions received on or after Jul.14, 2011.