Post-Conviction Relief for Immigrants

 

In Matter of Roldan,[4] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[5] 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.[6]

 

In Lujan-Armendarez v. INS, the Ninth Circuit overturned Roldan on equal protection grounds, holding that the new IIRAIRA definition of conviction did not invalidate the Federal First Offender Act (FFOA), and Equal Protection therefore dictates that state expungements continue to eliminate all immigration consequences of convictions of first offense simple possession of controlled substances where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.[7]

 

            The rule has been extended to convictions of possession of drug paraphernalia and perhaps other more minor controlled-substance convictions of offenses that are not prohibited under federal law, such as being under the influence of drugs, or being in a place in which drugs are used.[8]

 

The Ninth Circuit has upheld Roldan in all other respects.  In Murillo-Espinoza v. INS,[9] 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.[10] 

 

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,[11] the Board considered whether to extend the Lujan decision nationwide and, over a vigorous dissent,[12] 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. 

 

The Board is bound to apply circuit court precedent in that jurisdiction.  Therefore, Lujan remains good law in the Ninth Circuit, unless overruled en banc by that court.  Although the issue should not be abandoned, it does not appear likely that other courts of appeals will follow Lujan in the wake of the Salazar-Regino decision.  Opinions from the First, Second, Fifth and Seventh Circuits on the same and related questions indicate they will likely follow the BIA approach.[13]

 

Therefore, counsel in jurisdictions other than the Ninth Circuit cannot rely upon an expungement to eliminate the immigration effects of a conviction, even as to those drug cases that would have been prosecuted in federal court under the FFOA.  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 that Lujan and its progeny dictate otherwise.

 

            Outside the zone of first-offense minor controlled substance 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.

 

In Beltran-Leon v. INS,[14] the Ninth Circuit handed down a troublesome and confused decision holding that a California state-court decision vacating a drug conviction pursuant to a writ of audita querela did not remove the conviction for immigration purposes, because the judgment was not vacated on a ground of legal invalidity.  The court therefore held the BIA was correct in denying the motion to reopen deportation proceedings to allow application for adjustment of status, and dismissed the appeal for lack of jurisdiction.  See Chapter 4, supra.

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

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

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

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

[8] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

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

[10] 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).

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

[12] 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). 

[13] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000); United States v. Campbell, 167 F.3d 94 (2d Cir. 1999); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. July 8, 2003).

[14] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).