Crime of moral turpitude convictions that were eliminated under state rehabilitative statutes without any claim of legal invalidity will generally continue to exist for immigration purposes.  In Matter of Roldan,[135] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[136] 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.[137]  The Attorney General has applied this rule to firearms convictions.[138]  State rehabilitative relief is also ineffective to remove a conviction for purposes of a Good Moral Character assessment.[139]  The circuits have generally followed this rule.[140]  The one exception exists in the Ninth Circuit for certain drug crimes (first conviction of simple possession and a few other minor offenses) that would be eligible for treatment under the Federal First Offender Act had the case been prosecuted in federal court.[141]

 

In Matter of Roldan,[142] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[143] 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.[144]

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.[145]

 

Except for first-offense minor drug convictions, the Ninth Circuit has upheld Roldan.  In Murillo-Espinoza v. INS,[146] 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.[147] 

 

The Board of Immigration Appeals has since reaffirmed its position in Roldan that expungements do not operate to negate the immigration effects of a conviction.  In Matter of Salazar-Regino,[148] the Board considered whether to extend the Lujan decision nationwide and, over a vigorous dissent,[149] 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 premises that equal protection compelled honoring an expungement or rehabilitative dismissal in state court if the defendant would have been eligible for first-offender treatment in federal court, as was held in Lujan. 

 

Therefore, it is now clear that counsel in jurisdictions other than the Ninth Circuit cannot rely upon an expungement to eliminate the immigration effects of a conviction.  Even 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 Lujan and its progeny dictate otherwise.

 

Outside the area of first-offense minor drug convictions, it is thus necessary to vacate a conviction on some ground of legal invalidity, rather than under a state rehabilitative statute, in order to ensure its elimination as a trigger for adverse immigration consequences.  Direct attack, whether by writ of habeas corpus, coram nobis, or nonstatutory motion to vacate is by far the safer route. 

 

In Lopes-Chaves v. Reno,[150] the district court granted a stay of deportation on the ground that a final order of deportation was based on state convictions that had been vacated in state court after the issuance of the order of deportation.  The district court concluded that there is a likelihood that the BIA will reopen the deportation proceedings in light of the significant immigration and comity issues involved, and that the petitioner will prevail on the merits, and issued the stay.

 

The defendant made a motion in state court to vacate the convictions on the ground that the defendant had not been informed, pursuant to state statute,[151] that his admission of guilt would expose him to the risk of deportation, and the state court allowed the motions without an opinion.[152]  The INS argued that despite the state court orders vacating the convictions, petitioner remained “convicted” for immigration purposes.

 

The district court stated:

 

This position is neither compelled nor supported by current authority on this issue.  See Wiedersperg v. INS, 896 F.2d 1179, 1181 (9th Cir. 1980)(holding that petitioner was entitled to a new deportation proceeding where the conviction was overturned for an inadequate plea colloquy).[153]

 

The court went on to distinguish Roldan, supra, on the ground that the Board, in Roldan, expressly stated: “Our decision is limited to those circumstances where an alien has been the beneficiary of a state rehabilitative statute, which purports to erase the record of guilt.  It does not address the situation where the alien has had his or her conviction vacated by a state on direct appeal . . . or on grounds relating to a violation of a fundamental statutory or constitutional right in the underlying criminal proceedings.”[154]  The court also distinguished Molina v. INS,[155] on the same ground.[156]

The INS also argued that the second conviction in this case had been vacated “under ‘suspicious circumstances’ because of the antipathy of a state trial court judge to the harsh consequences of the new immigration laws.”[157]  The court, however, concluded:  “There is no record support for this allegation.”[158]

 

Therefore, if a conviction is vacated on constitutional grounds, or for violation of a state or federal statute, rather than under a state rehabilitative statute, the conviction is legally invalid, and may no longer provide the basis for removal or other adverse immigration consequences.

[135] 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).

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

[137] 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).

[138] Matter of Luviano-Rodriguez, 23 I. & N. Dec. 718 (AG 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been “convicted” for immigration purposes); Matter of Marroquin, 23 I. & N. Dec. 705 (AG 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still “convicted” for immigration purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)).

[139] Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. Jan. 21, 2003)(immigration courts may consider Kansas misdemeanor convictions for theft, battery, and welfare fraud, even though they had been expunged pursuant to a state rehabilitative statute, in making a Good Moral Character determination: “See Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995) (“[T]he consequences a state chooses to place on [a] conviction in its own courts under its own laws cannot control the consequences given to the conviction in a federal deportation proceeding.” (citation omitted)).”

[140] Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (according Chevron deference to, and affirming rule of, Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA June 11, 2003), that if a court amends conviction for reasons solely related to rehabilitation or immigration hardships, as opposed to responding to procedural or substantive defects in the underlying criminal proceedings, then the noncitizen remains “convicted” for immigration purposes); see Vasquez-Velezmoro v. INS, 281 F.3d 693, 698-699 (8th Cir. 2002) (rejecting noncitizen’s contention that expunged state drug conviction is not a “conviction” for immigration purposes).

[141] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 11.20 (4th ed. 2007).

[142] 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).

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

[144] See also Saleh v. Gonzales, 495 F.3d 17 (2d Cir. July 17, 2007) ("the BIA has reasonably concluded that an alien remains convicted of a removable offense for federal immigration purposes when a state vacates the predicate a conviction pursuant to a rehabilitative statute."), citing Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.2006); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000), and following Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th Cir. 2007) (“We deny the petitions for review on the ground that the state court's vacation of Sanusi's conviction was ineffective for immigration purposes because it was done solely for the purpose of ameliorating the immigration consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Ali v. U.S. Attorney General, 443 F.3d 804 (7th Cir. Mar. 22, 2006) (per curiam) (Georgia conviction of two counts of child molestation under Georgia First Offender Act, O.C.G.A. § § 42-8- 60, et seq., which allows a first-time felony offender to be placed on probation (or be sentenced to confinement) and serve out that probation or confinement without receiving an adjudication of guilt, constituted a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), for removal purposes); Matter of Luviano-Rodriguez, 23 I. & N. Dec. 718 (A.G. 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been "convicted" for immigration purposes; Matter of Marroquin, 23 I. & N. Dec. 705 (A.G. 2005), followed.); Matter of Marroquin-Garcia, 23 I. & N. Dec. 705 (A.G. 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still "convicted" for immigration purposes under INA § 101(a)(48)).

[145] 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).

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

[147] 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).

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

[149] 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, 18 U.S.C. § 3607, as establishing a safety valve 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). 

[150] Lopes-Chaves v. Reno, 1999 U.S.Dist. LEXIS 21151 (D.Mass. 1999).

[151] Mass. Gen. L. ch. 278, § 29D.

[152] Id. at p. 4.

[153] Id. at p. 5.

[154] Id. at 22.

[155] Molina v. INS, 981 F.2d 14, 20 (1st Cir. 1992) (which “also involved a state rehabilitative statute which expunged a conviction after certain probationary requirements were met”).

[156] See also United States v. Campbell, 167 F.3d 94 (2d Cir. 1999) (conviction “vacated” under state rehabilitative statute could still be considered in enhancing a federal criminal sentence under U.S.S.G. § 2L1.2(b)(2)).

[157] Id. at p. 7, n.4.

[158] Id. at p. 7, n.4.

BIA

POST CON RELIEF - MODIFICATION OF RECORD OF CONVICTION SOLELY FOR IMMIGRATION PURPOSES MAY NOT BE AFFECTIVE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

POST CON RELIEF - EFFECTIVE ORDER - MODIFICATION OF RECORD OF CONVICTION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, __ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

First Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (noting that the language of 1101(a)(48)(A) "leaves nothing to the imagination" and that state rehabilitative programs that do not vacate a conviction on the merits "have no bearing in determining whether an alien is to be considered convicted under section 1101(a)(48)(A)."); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir. 1999) (federal sentencing case); Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003) (stating, in case where petitioner successfully completed a one year probation sentence for a heroin possession charge in state court that would have made him eligible for FFOA relief had he been prosecuted by the federal government, that "[t]his language unambiguously points to the conclusion that the disposition of Acosta's criminal case in [state court pursuant to a state law permitting dismissal of charge after completion of probation without verdict] constitutes a conviction "); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir.1999) (state delayed adjudication of guilt); Gill v. Ashcroft, 335 F.3d 574, 577 (7th Cir. 2003) ("Every court that has considered the subject believes that 1101(a)(48)(A) governs the handling of repeat offenders and that expungements (or restorations of civil rights) under state law do not negate a conviction for purposes of immigration law."); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); United States v. Zamudio, 314 F.3d 517, 522 (10th Cir. 2002) (adopting plain meaning of 8 U.S.C 1101(a)(48)(A) when interpreting U.S.S.G. 2L1.2(b)(1)); Resendiz-Alcaraz v. United States Atty General, 383 F.3d 1262, 1269(11th Cir. Sept. 10, 2004) ("clear language of the statute [INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) definition of conviction] includes [as convictions] state convictions expunged under state rehabilitative laws").

Second Circuit

POST CON RELIEF " CONVICTION VACATED SOLELY FOR REHABILITATIVE REASONS
Sutherland v. Holder, 769 F.3d 144 (2d Cir. Oct. 8, 2014) (Arizona conviction for attempted possession for sale of four or more pounds of marijuana was vacated by an Arizona state court, but remains valid for federal immigration and removability purposes, since the order vacating the conviction was obtained under Arizona Revised Statutes 13-907 solely for rehabilitative reasons).

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.).

Fifth Circuit

POST CON RELIEF " CONVICTION " EFFECTIVE ORDER VACATING CONVICTION
Gaona-Romero v. Gonzales, 497 F.3d 694, 649 (5th Cir. 2007) (after Disipio was decided, "[t]he government undertook a policy review to determine how removal cases arising in the Fifth Circuit that involve vacated convictions should be treated. The government concluded that it would not seek that removal decisions be upheld pursuant to Renteria, but rather would request remand to the BIA so that the government could take action in accord with Pickering."); citing Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005) (remanding case in which criminal conviction had been vacated on a ground of legal invalidity to the Board of Immigration Appeals to allow for dismissal of removal proceedings in accordance with Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (convictions vacated for procedural or substantive defects will not be considered a valid convictions for immigration purposes)). Note: Since Gaona, the BIA has not issued a published opinion on the issue, but has consistently applied Pickering to cases arising in the Fifth Circuit, holding that a vacated conviction may not be used as conviction under the INA so long as the vacatur is unrelated to immigration or rehabilitative reasons. See In Re Alexis Ruiz Alvarez, A205 653 283 - CLE, 2013 WL 3200544 (BIA June 4, 2013) (the United States Government, through the Department of Justice's Office of Immigration Litigation, has advised the Fifth Circuit that it would not seek to uphold removal orders premised upon an application of Renteria-Gonzalez As such, this Board evaluates the effect of a vacatur under the rubric set forth in Matter of Pickering.); see also In Re Son Hoang Nguyen, A097 683 305 - DAL, 2013 WL 2608424 (BIA May 16, 2013); In Re Francisco Flores Alcala A.K.A. Francisco Flores A.K.A. Francisco Alcala Flores, : A200 762 691 - DAL, 2013 WL 2610047 (BIA May 9, 2013); In Re Sergio Gustavo Rangel-Juarez, A038 829 107 - EL, 2012 WL 3276562 (BIA July 16, 2012); In Re Daniel Sierra, : A074 026 895 - LOS, 2011 WL 2470936 (BIA June 1, 2011) (we conclude that the respondent's motion should be adjudicated in accordance with this Board's decisions in Matter of Pickering.); In Re Hugo Angel Robles A.K.A. Hugo Gonzalez Robles, A087 021 860 - HOU, 2011 WL 400460 (BIA Jan. 19, 2011). Regarding its consistent application of Pickering over Renteria-Gonzalez in the Fifth Circuit, the BIA has explained, We observe that, in certain circumstances, a federal court may defer to an agency's interpretation of a statute which is within the agency's jurisdiction to administer even if the agency's interpretation is inconsistent with the jurisprudence of that court. In Re: Francisco Flores Alcala A.K.A. Francisco Flores A.K.A. Francisco Alcala Flores, A200 762 691 - DAL, 2013 WL 2610047 (BIA May 9, 2013) (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)). Thanks to Amber L. Weeks.

Seventh Circuit

POST-CON RELIEF " STATE REHABILITATIVE RELIEF " EXPUNGEMENT " REHABILITATIVE EXPUNGEMENT REMAINS A CONVICTION FOR IMMIGRATION PURPOSES
Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010) (expungement of a conviction for a drug charge involving cocaine upheld as a conviction for INA purposes, because guilty plea was set aside and dismissed for ameliorative purposes, not for any procedural or substantial defects in the proceedings.), following Ali v. Ashcroft, 395 F.3d 722, 727 (7th Cir. 2005), Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003). PCN:8.3;CD4:11.18;AF:6.12;CMT3:10.11;SH:4.27

Eighth Circuit

CONTROLLED SUBSTANCES " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT POST CON RELIEF " REHABILITATIVE RELIEF " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT
Brikova v. Holder, 699 F.3d 1005 (8th Cir. Nov. 7, 2012) (Minnesota conviction of possession of cocaine, for which defendant would have been eligible for Federal First Offender Act treatment, under 18 U.S.C. 3607(a), was not eliminated for immigration purposes by state rehabilitative relief, since equal protection challenge fails because there are multiple potential rational bases for distinguishing between federal and state defendants).

Ninth Circuit

POST CON RELIEF " STATE REHABILITATIVE RELIEF " CALIFORNIA " EXPUNGEMENTS REMAIN EFFECTIVE SO LONG AS CONVICTION PREDATES NUNEZ-REYES " REQUEST TO CORRECT FAM
9 FAM 40.21(b)a(2) includes the Lujan exception to controlled substances inadmissibility, but requires an advisory opinion before a Lujan exception will be granted. This FAM provision is found at http://www.state.gov/documents/organization/86942.pdf Note that the FAM authors misunderstood and misstated the holding of Nunez-Reyes v. Holder, 646 F.3d 684 (Jul. 14, 2011), when they stated that "state judicial expungements that predate this decision can still be effective for immigration purposes in the Ninth Circuit." This is only partly correct. The correct summary of Nunez-Reyes on this point is that state judicial expungements for convictions that predate this decision can still be effective. That decision held: 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. Id. at 694. Thanks to Michael Mehr, who has requested the FAM editors to correct this error.

POST CON RELIEF - EFFECT OF VACATUR - REHABILITATIVE PURPOSE
Mendoza v. Holder, 606 F.3d 1137 (9th Cir. Jun. 2, 2010) (conviction still exists after vacatur granted for rehabilitative purposes only; any vacatur granted under Ariz.Rev.Stat. 13-907 is rehabilitative, and therefore still a conviction for immigration purposes), following Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT
Jimenez Rice v. Holder, ___ F.3d ___, 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).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - CONTROLLED SUBSTANCES - NINTH CIRCUIT
Jimenez Rice v. Holder, ___ F.3d ___, 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).

POST CON RELIEF - STATE REHABILITATIVE RELIEF
United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. Aug. 18, 2009) (defendant's prior expunged California convictions were not expunged for purposes of the Sentencing Guidelines, because under California law the expunged convictions in question could still be used at a later time in a variety of circumstances).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF IS GENERALLY INEFFECTIVE TO ELIMINATE A CONVICTION FOR IMMIGRATION PURPOSES
Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) ("[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state's rehabilitative statute.").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - REHABILITATIVE RELIEF IS GENERALLY INEFFECTIVE TO ELIMINATE A CONVICTION FOR IMMIGRATION PURPOSES
Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) ("[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state's rehabilitative statute.").

Eleventh Circuit

POST CON RELIEF " EFFECTIVE ORDER " USE OF VACATED CONVICTION TO ESTABLISH CONDUCT-BASED REASON TO BELIEVE GROUND OF INADMISSIBILITY
Garces v. US Atty. Gen., 611 F.3d 1337 (11th Cir. Jul. 27, 2010) (noncitizen whose drug trafficking conviction was vacated on the basis that the plea was not voluntary may still be found inadmissible for reason to believe that the noncitizen has engaged in drug trafficking, and the DHS may use police reports, the vacated conviction, and the motion to vacate itself to make a reason to believe determination; in this case, the submitted records were insufficient since the record did not show whether the noncitizen entered a plea of guilt or a plea of no contest, and the submitted police reports only made conclusions [he had engaged in drug trafficking], rather than describing a set of facts that would be sufficient to warrant such a conclusion). NOTE: This is a very good case to read on the topic of reason to believe and the admissibility of evidence in immigration proceedings.

Other

PRACTICE ADVISORY " CONTROLLED SUBSTANCES OFFENSES " FEDERAL FIRST OFFENDER ACT DISMISSALS ELIMINATE ALL IMMIGRATION CONSEQUENCES OF QUALIFYING CONVICTIONS EVEN THOUGH A STATE PROBATIONARY PERIOD LONGER THAN THE FFOA ONE-YEAR TERM WAS IMPOSED
The DHS sometimes argues that a state probation grant longer than the one-year probation period called for under the Federal First Offender Act, 18 U.S.C. 3706(a), disqualifies a conviction for treatment under Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000), prospectively overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc). The court of appeals has jurisdiction to review the underlying legal error of the BIA in adopting this argument. See Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014). Lujan-Armendariz itself extended Federal First Offender Act treatment to a noncitizen who successfully served five years of probation for a simple drug offense. See 222 F.3d at 733. Similarly, in Rice v. Holder, 597 F.3d 952, 954 (9th Cir. 2010), overruled on other grounds by Nunez-Reyes, 646 F.3d at 695, the Ninth Circuit held that a controlled substance offense was eligible for FFOA treatment even though the petitioner had been sentenced to three years probation, of which he had served approximately 19 months. See id.

POST CON RELIEF " EFFECTIVE POST-CONVICTION ORDER " CONVICTION
In an EOIR Newsletter, an article describes the difference in immigration consequences between a conviction vacated on a ground of legal invalidity, and one expunged solely for purposes of rehabilitation or to avoid immigration consequences: The expungement of a record of conviction is [t]he removal of a conviction (esp. for a first offense) from a persons criminal record. Blacks Law Dictionary 621 (8th ed. 2004). A vacatur is [t]he act of annulling or setting aside [or a] rule or order by which a proceeding is vacated. Id. at 1546. In the immigration context, the difference between a vacatur and an expungement involves intent. Criminal courts typically expunge convictions in order to rehabilitate offenders or, in the case of noncitizens, to prevent negative immigration consequences. Criminal courts typically vacate convictions because the convictions are substantively defective, for example a due process or the right to counsel violations at trial. Accordingly, this article uses the term vacatur to mean removal of a conviction because of substantive defects in the conviction and uses the term expungement to mean removal of a conviction to rehabilitate or to prevent immigration consequences. Some courts use the terms vacatur and expungement differently, however, and some courts use entirely different terms to express these concepts. The Act is silent as to whether a criminal conviction that has been vacated or expunged has immigration consequences. The Attorney General, the Board, and, with one exception, the circuit courts of appeals have adopted the following rule: [I]f a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a conviction within the meaning of section 101(a) (48)(A). If, however, a court vacates [or expunges] a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the respondent remains convicted for immigration purposes. Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003) (footnote omitted). Accord Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006); Alim v. Gonzales, 446 F.3d 1239, 1248"49 (11th Cir. 2006); Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir. 2005); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Sandoval v. INS, 240 F.3d 577, 583 (7th Cir. 2001); Matter of Marroquin-Garcia, 23 I&N Dec. 705, 713 (A.G. 2005). The Fifth Circuit, by contrast, has held that convictions vacated for any reason, including substantive defects, retain their immigration consequences. Garcia-Maldonado v. Gonzales, 491 F.3d 284, 291 (5th Cir. 2007). Josh Adams, Treatment of Criminal Convictions in the Immigration Context, 2 Immigration Law Advisor (October 2008) (emphasis in original), http://www.justice.gov/eoir/vll/ILA-Newsletter/ILA%20Vol%202/vol2no10.pdf.

POST CON RELIEF - EFFECTIVE ORDER - STATE REHABILITATIVE RELIEF
Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context. Therefore, Matter of Roldan and subsequent cases holding that rehabilitative relief does not eliminate a conviction do not apply in this context. Thanks to Manny Vargas. Immigration counsel can also argue that post-conviction relief effectively eliminates the conviction. Thanks to Katherine Brady.

STATE REHABILITATIVE RELIEF - EXPUNGEMENT - WHETHER THE CUSTODY DISQUALIFIES RESPONDENT FROM LUJAN EXPUNGEMENT
Whether serving time in jail prevents a person whose conviction has been expunged from qualifying under Lujan-Armendariz is an open question in the Ninth Cir. See, Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir. 2009). See also, Fernandez-Bernal v. Attorney General of U.S., 57 F.3d 1304 (11th Cir 2001) (relief under FFOA 3607(b) is not available to an individual sentenced to a term of probation that exceeds one year; nor is it available to anyone sentenced to jail time). Thanks to Stacy Tolchin

PRACTICE ADVISORY " POST CON RELIEF " TEXAS " GROUNDS " INVALID PLEA " INEFFECTIVE ASSITANCE OF COUNSEL "CONVICTION " DEFERRED ADJUDICATION
Texas law conflicts with federal immigration law as to whether deferred adjudication constitutes a conviction. Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) (Deferred adjudication is not a conviction.). But see Matter of Punu, 22 I. & N. Dec. 224, 230 (B.I.A. 1998) (holding that deferred adjudication in Texas constitutes a conviction for purposes of immigration law). This may give Texas defendants a ground of legal invalidity by which to set aside their convictions, if they were incorrectly informed the Deferred Adjudication disposition does not constitute a conviction, whereas it does constitute a conviction under federal immigration law. This may render the plea not knowing, intelligent, free or voluntary. It may also constitute a ground of ineffective assistance of counsel, in violation of Padilla v. Kentucky, because of affirmative misadvice or failure to advise that this disposition does indeed constitute a conviction for immigration purposes.

POST CON RELIEF " EXPUNGEMENTS " FEDERAL YOUTH CORRECTIONS ACT EXPUNGEMENTS MAY CONTINUE TO BE EFFECTIVE
Federal Youth Corrections Act expungements, under 18 U.S.C. 5021, may continue to be effective to eliminate the adverse immigration effects of federal criminal convictions. United States v. Gardner, 860 F.2d 1391, 1399, n.2 (7th Cir. 1988) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution); United States v. Countryman, 758 F.2d 574, 579 n. 2 (11th Cir.1985) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution). See Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974) (before the repeal of the Federal Youth Corrections Act, the BIA held that an FYCA expungement eliminated the fact of a conviction for immigration purposes). After the repeal of the Federal Youth Corrections Act, but before Congress enacted a definition of conviction in IIRIRA, the BIA continued to hold that an FYCA expungement eliminated the fact of a conviction for immigration purposes. See Castano v. INS, 956 F.2d 236, 237 n.3 (11th Cir. 1992) (recognizing post-repeal BIA policy). After the enactment of 8 U.S.C. 1101(a)(48), the BIA held that the new definition applies to convictions before, on, or after effective date of conviction definition. Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999). In Roldan, the BIA dealt with a state expungement. There is no current authority regarding the FYCA squarely. Even if the client could get a FYCA expungement now, it has never insulated a noncitizen from "reason to believe" inadmissibility, which does not require a conviction. See, e.g, Castano v. INS, 956 F.2d 236 (11th Cir. 1992); Matter of Favela, 16 I&N Dec. 753 (BIA 1979). Thanks to Dan Kesselbrenner.

POST CON RELIEF " FEDERAL " EXPUNGEMENTS " FEDERAL FIRST OFFENDER ACT " EX POST FACTO ARGUMENT AGAINST APPLICATION OF REPEAL TO PREVIOUSLY GRANTED EXPUNGEMENTS
Immigration counsel can argue that failure to honor Federal First Offender Act dispositions, or their analogues, would violate the Ex Post Facto provisions of the United States Constitution. See United States v. Gardner, 860 F.2d 1391, 1399, n.2 (7th Cir. 1988) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution); United States v. Countryman, 758 F.2d 574, 579 n. 2 (11th Cir.1985) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution). See Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974) (before the repeal of the Federal Youth Corrections Act, the BIA held that an FYCA expungement eliminated the fact of a conviction for immigration purposes). After the repeal of the Federal Youth Corrections Act, but before Congress enacted a definition of conviction in IIRIRA, the BIA continued to hold that an FYCA expungement eliminated the fact of a conviction for immigration purposes. See Castano v. INS, 956 F.2d 236, 237 n.3 (11th Cir. 1992) (recognizing post-repeal BIA policy). Thanks to Dan Kesselbrenner