Tooby's California Post-Conviction Relief for Immigrants

The Federal First Offender Act, 18 U.S.C. § 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.  For an argument that Congress is presumed to mean what it says, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 7.25 (2007).

            The Ninth Circuit has also held that a foreign expungement was effective to eliminate the immigration effects of a first-offense controlled substances conviction under the same circumstances in which an expungement under a state rehabilitative statute, such as California Penal Code § 1203.4(a), would be effective.[23]

[23] Dillingham v. INS, 267 F.3d 996, 1004-06 (9th Cir. 2001) (due process incorporates equal protection requirements; the United States must have a rational basis on which to distinguish between similarly situated classes of noncitizens in imposing immigration consequences of a criminal conviction).  But see Danso v. Gonzales, 489 F.3d 709 (5th Cir. June 15, 2007) (rejecting equal protection argument that noncitizen’s British expungement should be given effect for immigration purposes where noncitizen could hypothetically have availed himself of the expungement procedures set forth in the Federal First Offenders Act (FFOA)).