If a sentence is vacated or modified under a state rehabilitative statute, there is a risk that the DHS might take the incorrect position that the order is ineffective to eliminate the original sentence and therefore the immigration consequences.  It is safest, therefore, to avoid modifying a troublesome sentence on this basis, if a safer or more effective alternative can be found.

 

In Matter of Roldan,[99] the BIA relied on the new IIRAIRA statutory definition of conviction[100] 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.  This decision is limited to situations in which a state court clears a state conviction from the record pursuant to a “state rehabilitative statute,” rather than on a ground of legal invalidity.[101] 

 

In Lujan-Armendarez v. INS, the Ninth Circuit overturned Roldan in part on equal protection grounds, holding that the new IIRAIRA definition of conviction did not invalidate the Federal First Offender Act, and that state expungements therefore continue to eliminate all immigration consequences of convictions of first offense simple possession of controlled substances where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.[102]

 

However, a panel of the Ninth Circuit upheld the remainder of the Roldan decision in Murillo-Espinoza.[103]  There, the court found that an order vacating the conviction and dismissing the charge under an Arizona state rehabilitative statute was not effective to remove its immigration effects, giving deference to the agency determination expressed in Roldan.

 

Thus, at least in the Ninth Circuit, convictions and sentences that are vacated under state rehabilitative statutes will continue to exist to trigger adverse immigration consequences except to the extent (first offense non-trafficking drug convictions) that Lujan and its progeny dictate otherwise.

 

            It is thus preferable not to attempt to vacate a troublesome sentence under a state rehabilitation statute.  Direct attack, whether by writ of habeas corpus, coram nobis, or nonstatutory motion to vacate is by far the safer route. 

[99]  Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999)(en banc).

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

[101]  Matter of Roldan, supra.

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

[103] Murillo-Espinoz v. INS, 261 F.3d 771 (9th Cir. 2001).

Ninth Circuit

POST CON RELIEF " STATE REHABILITATIVE RELIEF " CONTROLLED SUBSTANCES " NINTH CIRCUIT
Jimenez Rice v. Holder, 597 F.3d 952, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), that was expunged under Penal Code 1203.4(a), no longer constituted a conviction for purposes of establishing a statutory bar to showing Good Moral Character, under INA 101(f)(3), 8 U.S.C. 1101(f)(3)), following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). Note: This decision does not properly stand for the proposition that the conduct underlying the expunged conviction cannot be considered in the discretionary Good Moral Character decision, merely that the conviction itself cannot be considered. Immigration counsel can argue that the conviction itself is completely barred, and if the government wants to rely on the underlying conduct as a negative discretionary factor, it must prove it by some means independent of the expunged conviction, which has completely ceased to exist not only for immigration purposes, but for all purposes. See 18 U.S.C. 3607(b)("A disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), 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." [emphasis supplied]).