Crimes of Moral Turpitude

 

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.