(F)  Other Forms of Rehabilitative Relief.  Under prior law, if a person violated the terms of probation, and was subjected to further proceedings concerning guilt or innocence of the original charge, no conviction existed for immigration purposes.[348]  Under the current statute, it no longer matters what happens during or after deferred adjudication probation.  If a noncitizen enters a plea of guilty or nolo contendere or has “admitted sufficient facts to warrant a finding of guilt,” and “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed,” the noncitizen is deemed convicted, even if formal adjudication is withheld,[349] which effectively classifies as convictions almost all cases of withholding of adjudication of guilt.[350]  This can be very misleading where state law provides there is no conviction.

               

In Beltran-Leon v. INS,[351] the Ninth Circuit handed down a troublesome and confused decision holding that a California state-court decision vacating a drug conviction pursuant to a writ of audita querela did not remove the conviction for immigration purposes, because the judgment was not vacated on a ground of legal invalidity.  The court therefore held the BIA was correct in denying the motion to reopen deportation proceedings to allow application for adjustment of status, and dismissed the appeal for lack of jurisdiction.[352]

 

[348] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[349] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).  See also Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000) (noncitizen who pleads guilty to spousal abuse and is given one-year probation is convicted for immigration purposes).

[350] Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998).

[351]Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[352] See N. Tooby & J. Rollin, Aggravated Felonies § 6.12(B) (2006).

Ninth Circuit

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.

Other

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.