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 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.[16]

 

            The FFOA[17] is an alternative sentencing statute that applies after a defendant has been “found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844) . . . .”  Thus, it applies after a jury or court verdict of guilty, or after a guilty plea has been entered, to a listed offense.

 

The FFOA applies to those convicted in federal court of knowingly or intentionally without authorization possessing any controlled substance (or gratuitous distribution of a “small amount of marijuana”).[18] The Ninth Circuit has extended the FFOA to additional minor first-sentence controlled substance offenses.  See § 10.16, infra.

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

[17] 18 U.S.C. § 3607.

[18] 21 U.S.C. § § 844(a)(possession), 841(b)(4)(gratuitous distribution of marijuana).

BIA

CAL POST CON " STATE REHABILITATIVE RELIEF " BEING IN A PLACE WHERE DRUGS ARE USED QUALIFIES FOR FFOA TREATMENT
Matter of Nuno Diaz, A036 642 997 - Los Angeles, CA (BIA August 5, 2008)(unpublished)(California misdemeanor conviction for presence in a room or place where designated controlled substances [are] smoked or used, in violation of Health & Safety Code 11365(a), qualifies for FFOA treatment, because the Controlled Substances Act, 8 U.S.C. 844, contains no offense analogous to Health & Safety Code 11365(a), and the offense is more minor than possession offenses), following Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

CAL POST CON " STATE REHABILITATIVE RELIEF " MULTIPLE SIMULTANEOUS CONVICTIONS OF QUALIFYING OFFENSES MAY BE ELIMINATED FOR IMMIGRATION PURPOSES UNDER FFOA
Matter of Nuno Diaz, A036 642 997 - Los Angeles, CA (BIA August 5, 2008)(unpublished)(multiple simultaneous convictions of California misdemeanor conviction for presence in a room or place where designated controlled substances [are] smoked or used, in violation of Health & Safety Code 11365(a), can be eliminated for immigration purposes, because there is no prior conviction to disqualify the person from FFOA treatment.

Second Circuit

POST CON RELIEF " STATE REHABILITATIVE RELIEF " FEDERAL FIRST OFFENDER ACT
Wellington v. Holder, 623 F.3d 115 (2d Cir. Oct. 20, 2010) (We hold that an alien who receives state rehabilitative treatment for a removable offense under 8 U.S.C. 1182(a)(2)(A)(i)(II) remains "convicted" of that offense pursuant to the definition of "conviction" in the Immigration and Nationality Act, see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), even if the alien would have been eligible for relief under the Federal First Offender Act had she been prosecuted in federal court. See 18 U.S.C. 3607.).

Ninth Circuit

CONTROLLED SUBSTANCES " UNDER THE INFLUENCE " STATE REHABILITATIVE RELIEF DOES NOT ELIMINATE IMMIGRATION CONSEQUENCES
Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. Jul. 14, 2011) (en banc) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), continued to exist to trigger adverse immigration consequences of a controlled substances conviction, despite state rehabilitative relief that would have eliminated the immigration consequences of the conviction under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), because this offense was not less serious than simple possession of a controlled substance, and was therefore not covered under the Federal First Offender Act, 18 U.S.C. 3607); overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), was eligible for the same immigration treatment under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), as those convicted of first-offense drug possession under the Federal First Offender Act, 18 U.S.C. 3607).

CONTROLLED SUBSTANCES " UNDER THE INFLUENCE " RETROACTIVITY
Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. Jul. 14, 2011) (en banc) (holding retroactive to all cases not yet final the new rule that California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), continued to exist to trigger adverse immigration consequences of a controlled substances conviction, despite state rehabilitative relief that would have eliminated the immigration consequences of the conviction under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), because this offense was not less serious than simple possession of a controlled substance, and was therefore not covered under the Federal First Offender Act, 18 U.S.C. 3607); overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010)(California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), was eligible for the same immigration treatment under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), as those convicted of first-offense drug possession under the Federal First Offender Act, 18 U.S.C. 3607).

POST CON RELIEF " FEDERAL REHABILITATIVE RELIEF " FFOA
Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. Jul.14, 2011) (en banc) (a federal conviction, later expunged under the Federal First Offender Act (FFOA), nevertheless constitutes a conviction for immigration purposes. Importantly, the FFOA mandates that a successfully expunged federal conviction shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose. 18 U.S.C. 3607(b) (emphases added).); following on this point Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

Other

POST CON RELIEF " REHABILITATIVE RELIEF " FFOA " FEDERAL FIRST OFFENDER ACT LEGISLATIVE HISTORY
A legislative history search failed to disclose any congressional materials related to the enactment of the Federal First Offender Act, 8 U.S.C. 3607. The statute was added as a rider to an appropriations bill along with many other statutes, and may have been added at the last minute without any sort of Congressional debate. The Federal First Offender Act was originally enacted in 1970 under the title of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513 (1970), originally codified at 21 U.S.C. 844(b). The amendment in 1984 only changed the language slightly. There were hearings before the House Subcommittee on Public Health and Welfare, the Committee on Interstate and Foreign Commerce, and the Senate Special Subcommittee on Alcoholism and Narcotics, Committee on Labor and Public Welfare as well as two committee prints issued by the House Committee on Ways and Means and by the Senate Committee on Labor and Public Welfare. The transcripts of the hearings offer some language on why rehabilitation may be more fruitful for those convicted of drug offenses than incarceration, because many of these people actually suffer from addiction and thus should not be punished for their actions. Moreover, simple use and possession of drugs does not harm society and therefore should not be punished the same as other crimes. No specific language was found discussing why first offenses should be expunged or treated less severely. The testimony focused instead on the harmfulness of narcotics and the medical diagnosis of addiction. Thanks to Sarah Shekhter.