Safe Havens

(G)  Foreign Rehabilitative Relief.  The BIA found a foreign expungement in Italy ineffective to avert excludability.[341]  The Ninth Circuit, however, has held that equal protection requires the BIA and federal courts to honor a foreign expungement where the defendant would have been eligible for an expungement under the Federal First Offender Act if the case had been prosecuted in federal court.[342]  Congress provided a prior state or federal conviction relating to a controlled substance disqualified a person from FFOA relief, but failed to do so for a prior conviction under foreign law.  See § 4.27(A)(3), supra.

[341] Matter of B, 7 I. & N. Dec. 166 (BIA 1956); Matter of G, 5 I. & N. Dec. 129 (BIA 1953).

[342] Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001)(British expungement honored); see also Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (holding that state court expungements are effective to eliminate the immigration effects of first-offense simple drug possession convictions where the defendant would have been eligible under the Federal First Offender Act); but see Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc) (reaffirming BIA rule that 1996 IIRAIRA definition of “conviction” eliminated the effectiveness of expungements to negate immigration effects for all categories of crimes and rejecting equal protection argument relied upon by the Ninth Circuit regarding first-offense minor controlled substances offenses); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n.8, 2001 WL 401484 (4th Cir. 2001) (foreign conviction allegedly expunged).