In Matter of Roldan,[58] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[59] 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.[60] 

 

Moreover, 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, and that state expungements therefore 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.[61]

 

The fact that the Ninth Circuit in Lujan reversed the removal orders affirmed by the BIA in Roldan leaves the law in some confusion as to non-drug expungements.  First, Roldan involved only first convictions of simple possession of controlled substances.  It did not involve the question of the effectiveness of expungements of non-drug convictions, such as convictions of crimes involving moral turpitude.  Therefore, any discussion in Roldan of non-drug convictions was nothing more than dictum.  The Ninth Circuit fully reversed Roldan’s entire narrow holding as to first-offense possession convictions, reversing the validity of the removal orders in the consolidated cases.  On the other hand, one could expect that the BIA might reaffirm the broader principles enunciated in Roldan in the future in another case presenting questions involving non-drug expungements, unless the BIA is persuaded by the reasoning in Lujan as to the congressional intent underlying the new definition of conviction, or the need for a uniform federal standard in this area.

 

The Ninth Circuit distinguished Lujan and held that an Arizona theft conviction, with an 18-month sentence imposed after a probation violation, constituted an aggravated felony conviction for removal purposes, despite a court order expunging the conviction for successful completion of probation under a state rehabilitative statute.[62]

 

            If this decision is upheld, or if its principles are reaffirmed in the future by the BIA, then convictions that have been vacated under state rehabilitative statutes will continue to exist to trigger adverse immigration consequences except to the extent (first-offense non-trafficking drug convictions) that Lujan and its progeny dictate otherwise.

 

            In Lopes-Chaves v. Reno, [63] the district court granted a stay of deportation on the ground that a final order of deportation was based on state convictions which had been vacated in state court after the issuance of the order of deportation.  The district court concluded that the BIA likely will reopen the deportation proceedings in light of the significant immigration and comity issues involved, and that the petitioner will prevail on the merits.  Therefore the court 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,[64] that his admission of guilt would expose him to the risk of deportation, and the state court allowed the motions without an opinion.[65]  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).[66]

 

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.”[67]  The court also distinguished Molina v. INS, [68] on the same ground.[69]

 

            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.”[70]  The court, however, concluded:  “There is no record support for this allegation.”[71]

 

            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.

[58] Matter of Roldan, 22 I.  & N. Dec. 512 (BIA 1999)(en banc).

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

[60] Matter of Roldan, supra.

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

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

[63] Chaves v. Reno, 1999 U.S.Dist. LEXIS 21151 (D. Mass. 1999) (unpublished).

[64] Mass. Gen. L. ch. 278, § 29D.

[65] Id. at p. *4.

[66] Id. at p. *5.

[67] Id. at 22.

[68] 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”).

[69] 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 USSG § 2L1.2(b)(2)).

[70] Id. at p. *7, n.4.

[71] Id. at p. *7, n.4.

Ninth Circuit

POST CON RELIEF " STATE REHABILITATIVE RELIEF -- EFFECTIVE ORDER " STATE EXPUNGEMENT EFFECTIVELY ELIMINATED MISDEMEANOR CONVICTION FOR POSSESSION OF PARAPHERNALIA IN NINTH CIRCUIT AS A BAR TO NONLPR CANCELLATION
Ramirez-Altamirano v. Mukasey, 554 F.3d 786, 2009 WL 251948 (9th Cir. February 4, 2009)(petition for review granted, reversing BIA denial of non-LPR cancellation of removal holding an expunged state conviction for possession of drug paraphernalia, under Health & Safety Code 11364(a), was an absolute bar to relief, even though it had been set aside under state rehabilitative law, since the Ninth Circuit law holds this relief eliminates this class of conviction for all immigration purposes), following Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136-37 (9th Cir.2000).

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.).