(B)

History.  In Matter of Roldan,[7] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[8] 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.[9]

 

            The Ninth Circuit has overturned Roldan for convictions of first offense simple possession of controlled substances where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.[10]  See § 10.4, infra.

 

However, the Ninth Circuit has upheld Roldan in all other respects.  In Murillo-Espinoza v. INS,[11] the Ninth Circuit concluded that an expunged theft conviction with a sentence of one year or more still qualified as an aggravated felony.  With cursory consideration, the court upheld the BIA’s position that expungements do not eliminate the immigration effects as an exercise of Chevron deference to agency determinations.[12]  

 

The Board of Immigration Appeals has since reaffirmed its position in Roldan that expungements do not operate to negate a conviction’s immigration effects.  In Matter of Salazar-Regino,[13] the Board considered whether to extend the Lujan decision nationwide and, over a vigorous dissent,[14] declined to do so.  Rather, the Board found that Congress intended to abolish the effectiveness of expungements for all classes of convictions and did not provide for an exception for first-offense drug cases.  It also rejected the argument that equal protection compelled honoring an expungement or rehabilitative dismissal in state court even if the defendant would have been eligible for first-offender treatment in federal court.  The Board is bound to apply circuit court precedent in that jurisdiction.  Therefore, Lujan remains good law in the Ninth Circuit.

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

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

[9] Matter of Roldan, 22 I. & N. Dec. 486, 512, 528 (BIA 1999) (en banc).

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

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

[12] Judicial deference to an agency decision is governed by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-453 (1984).

[13] Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc).

[14] The dissent maintained that the Roldan decision was wrongly decided and, that by enacting the definition of “conviction” in INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), Congress intended only to modify BIA precedent so that a guilty plea is sufficient to establish a conviction, even where adjudication of guilt is withheld.  Moreover, Congress gave no indication that it intended to supercede the FFOA when setting forth a definition of “conviction,” according to the dissent.  Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (Rosenberg, Board Member, dissenting).  A separate dissenting opinion by Board Member Moscato persuasively emphasized the importance of the FFOA as establishing a safety-value so that a first-offense drug conviction will not destroy a young life, which is so often the case for legal permanent residents who are deported based on one drug conviction.  Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (Moscato, Board Member, dissenting). 

Second Circuit

POST CON RELIEF " REHABILITATIVE RELIEF " INEFFECTIVE UNLESS BASED ON LEGAL DEFECT
Wellington v. Holder, 623 F.3d 115 (2d Cir. Oct. 20, 2011) (No. 09-4111) (a Certificate of Relief or similar state rehabilitative treatment does not preclude use of the underlying offense as a basis for removal or as a basis for ineligibility for relief, where the state treatment was not related to a procedural or substantive defect in the criminal proceedings).

POST CON RELIEF " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT
Wellington v. Holder, 623 F.3d 115 (2d Cir. Oct. 20, 2010) (We hold that an alien who receives state rehabilitative treatment for a removable offense under 8 U.S.C. 1182(a)(2)(A)(i)(II) remains "convicted" of that offense pursuant to the definition of "conviction" in the Immigration and Nationality Act, see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), even if the alien would have been eligible for relief under the Federal First Offender Act had she been prosecuted in federal court. See 18 U.S.C. 3607.).