A prior drug diversion disposition, which did not involve a plea of guilty or no contest, disqualifies the defendant from FFOA treatment of the conviction.[24]  This is an illogical conclusion, because such a no-plea, no-conviction disposition is not equivalent to “a disposition under this subsection [18 U.S.C. § 3607(a)],” since the defendant in such a diversion case has not been “found guilty” of a controlled-substance offense and no conviction resulted.[25]  Such a scenario would not disqualify a federal defendant from FFOA treatment. It is possible the Ninth Circuit might reconsider this rule en banc, and it should do so.

[24] Melendez v. Gonzales, 503 1019 (9th Cir. Sept. 19, 2007) (an expungement of a second offense will not be effective in eliminating a conviction, under Lujan, for immigration purposes were the noncitizen has already previously been given “pretrial diversion” treatment on a prior offense, even though “pre-trial diversion” did not require the noncitizen to enter a plea of guilty to a controlled substances offense).

[25] 18 U.S.C. § 3607(a).

Other

POST CON RELIEF " STATE REHABILITATIVE RELIEF " CONTROLLED SUBSTANCES " SINGLE OFFENSE EXCEPTION
A noncitizen who has pre-trial diversion (no plea entered) for a drug charge does not have a conviction for immigration purposes. (INA 101(a)(43)(a), 8 U.S.C. 1101(a)(43)(a).) If that person later pleads guilty to simple possession of 30 grams or less of marijuana, the noncitizen comes within the exception to deportability under INA 237(a)(2)(B), 8 U.S.C. 1227(a)(2)(B) for having a single offense. The "single offense" language creates an exception to the "has been convicted" language in this statute. Since pre-trial diversion is not a conviction, the guilty to plea to marijuana possession would still seem to come within the language of the single-offense exception. (The Ninth Circuit in de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007), held that a noncitizen with a prior grant of pre-trial diversion is not eligible for treatment under Federal First Offender Act, 18 U.S.C. 3607(a), analogue, which makes the plea in the second case a conviction for immigration purposes. In de Jesus Melendez, however, the Federal First Offender Act itself bars eligibility for one who had previously been treated under 18 U.S.C. 3607, and this statute itself has a pretrial diversion provision. The fact that a pre-trial non-conviction diversion bars effective expungement does not mean that it would be considered a first "offense" under the first-offense exception for 30 grams or less of marijuana. Any ambiguity in the statute must be interpreted in favor of the noncitizen in deportation proceedings. Thanks to Dan Kesselbrenner.

RELIEF -- WITHHOLDING OF REMOVAL " REHABILITATIVE RELIEF MAY BE EFFECTIVE TO ELIMINATE A CONVICTION FOR PURPOSES OF ELIGIBILITY FOR ASYLUM OR WITHHOLDING OF REMOVAL
Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, they arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding. Therefore, Matter of Roldan and subsequent cases holding that rehabilitative relief does not eliminate a conviction do not apply in this context. Thanks to Manny Vargas. Immigration counsel can also argue that this post-conviction relief, effectively eliminates the conviction, and restarts the one-year clock under the terms of INA 208. Thanks to Katherine Brady. CPCN:10.8,10.20