Criminal defense counsel should not count on a defendant being considered eligible for Lujan treatment of a conviction following a second arrest for possession or another qualifying offense, where the defendant previously received a no-plea diversion dismissal of a previous drug charge. Immigration counsel, however, can argue that a no-plea diversion is not a prior treatment "under this subdivision," so it does not disqualify the defendant from FFOA treatment of a second case.

Toledo-Hernandez v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tx.) (Renteria-Gonzalez, 322 F.3d 804 (5th Cir. 2003), inapplicable to convictions vacated on constitutional grounds); Hernandez-Arguello v. Winfrey, No. SA-03-CA-0823-RF (W.D. Tx. 2004) (Same).

United States v. Garcia-Lopez, 375 F.3d 586 (7th Cir. July 12, 2004) (prior conviction, vacated on technical grounds for failure of court to give required warnings of possible immigration consequences, still requires 16-level enhancement upon illegal reentry sentence since conviction was still in existence at time of deportation, even though conviction was vacated prior to illegal reentry).

Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) (federal definition of "conviction" at INA 101(a)(48)(A), 8 U.S.C.

Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although Oregon expungement would erase simple possession conviction, if granted, the immigration authorities may remove noncitizen before expungement is granted; court distinguished between situation where, as here, noncitizen had not yet made any attempt to begin expungement, and where the noncitizen is in process of obtaining an expungement by court order).

Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004) (petition for review denied, despite contention that deferred adjudication for drug possession did not constitute conviction for immigration purposes by analogy to the Federal First Offender Act).

United States v. Discipio, 369 F.3d 472 (5th Cir. April 29, 2004) (following Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), state conviction remains for immigration purposes, even though convicting court granted motion for new trial based upon substantive flaws in underlying proceeding).      In United States v. Discipio, 369 F.3d 472 (5th Cir. April 29, 2004), the first published Fifth Circuit court decision to cite Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir.

By analogy to the duties of a prosecutor in a criminal case, the TA has a duty of fairness, not deportation.  It is in the government's interest that a noncitizen who is eligible for relief and deserving of relief receive relief from deportation.  See Berger v. United States, 295 U.S. 78, 88 (1935); ABA Standards Relating to the Prosecution Function.

Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976) (the INS was estopped from deporting the petitioner because the INS had failed to give a warning that it was required to give by its own regulations); see Scime v. Bowen, 822 F.2d 7, 9 (2d Cir. 1987) (noting that opinion in Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S.

Matter of Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980) ("Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures, even where the internal procedures are possibly more rigorous than otherwise would be required.; Morton v. Ruiz, 415 U.S 199, 235 (1974).").  See also United States v. Caceres, 440 U.S. 741 (1979); Bridges v. Wixon, 326 U.S 135, 152-153 (1945).