Tooby's California Post-Conviction Relief for Immigrants

The Ninth Circuit has held that the INS may remove a defendant, even though an expungement would if granted be effective under Lujan to eliminate the conviction, so long as the process of obtaining an expungement has not yet begun.[46]  It suggested, however, that if the process of expunging a conviction has begun, the respondent may argue that the immigration authorities may not remove him or her until the process has been completed.  In Lujan, the court stated:

Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Act’s provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either. (Whatever the case, the result would be applicable to first-time drug possession offenders prosecuted under state statutes, as well.) However, we need not resolve this issue in order to decide the petitions for review before us. In both cases here, the pertinent findings had already been expunged before the BIA decisions were issued.[47]

The Ninth Circuit more affirmatively stated this position in Chavez-Perez v. Ashcroft,[48] but again in dictum:

We express no opinion about whether this reasoning would apply with equal force to the situation the Lujan-Armendariz court specifically identified, where an alien has a finding of guilt on his record but the actual conviction is deferred pending successful completion of probation. See 222 F.3d at 746 n.28 (referring to 'deferred adjudication' statutes). Aliens sentenced under such schemes do not have a “conviction” on their record at any time during probation. However, because we are not faced with that situation here, that question must continue to remain open for another day.[49]

In Chavez-Perez, the court held that although an Oregon expungement would, if granted,  erase a simple possession conviction, the immigration authorities may remove a noncitizen from the United States before the expungement has been granted. The Ninth Circuit, in dictum, distinguished between the situation in which the noncitizen had not yet made any attempt to begin expungement (as in Chavez-Perez), and the situation in which the noncitizen is in process of obtaining an expungement by court order.

            The BIA has held in two non-precedent decisions that actual expungement of a first-offense conviction of possession of a controlled substances is not required, before removal proceedings will be terminated, because Lujan and Manrique suggest that a conviction does not constitute a deportable controlled substances conviction if the respondent would have been eligible for treatment under the Federal First Offender Act if prosecuted in federal court, even if a state expungement has not yet actually been obtained and the defendant remains on probation.[50]

[46] Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. Oct. 27, 2004) (although Oregon expungement would erase simple possession conviction, if granted, the immigration authorities may remove noncitizen before expungement is granted; court distinguished between situation where, as here, noncitizen had not yet made any attempt to begin expungement, and where the noncitizen is in process of obtaining an expungement by court order).

[47] Id. at 746 n.28.

[48] Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004).

[49] Id. at 1293 (emphasis added).

[50] Matter of Vallesteros, 2004 WL 1739143 (BIA June 29, 2004)(non-precedent decision); Matter of Ceredon, 2004 WL 1739162 (BIA June 29, 2004) (non-precedent decision).