Tooby's California Post-Conviction Relief for Immigrants

In the Ninth Circuit, a state expungement statute need not be identical to the Federal First Offender Act for an expungement order effectively to eliminate a qualifying controlled substances conviction.  Therefore, there is no reason the benefits of a Lujan expungement would not apply alike to an expungement under Penal Code § § 1203.4(a), 1203.4a(a), Prop. 36 expungements under Penal Code § 1210, or Deferred Entry of Judgment under Penal Code § 1000. 

            Under Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994), the state expungement statute does not have to be identical to the FFOA:

We rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994). Garberding involved Montana's expungement statute, which was not limited to first-time simple drug possession offenses but allowed expungement of a broad range of more serious offenses. Id. at 1189. Considering Garberding's challenge on Equal Protection grounds, we concluded that the INS had no rational basis for treating her differently simply because Montana's statute covered a broader range of offenses than did the FFOA, id. at 1190-91, and held that "persons who received the benefit of a state expungement law were not subject to deportation as long as they could have received the benefit of the federal Act if they had been prosecuted under federal law." Chavez-Perez v Ashcroft, 386 F.3d 1284, 1288 (9th Cir. 2004). This interpretation accepted in Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995), which requires only that the defendant be a simple possession first offender and that a "court has entered an order pursuant to a state rehabilitative statute under which the alien's criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation." Matter of Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995).

Therefore, the statue expungement statute need not be equivalent to the FFOA if the conduct could have been covered under the FFOA if the case had been prosecuted in federal court, and rehabilitative treatment resulting in dismissal was granted.

            The Tenth Circuit, however, rejected this argument on the ground that the Wyoming rehabilitative relief statute differed from the FFOA: "Wyoming deferred entry of plea and sentence, under Wyo. Stat. § 7-13-301 (“Without entering a judgment of guilt or conviction, [the court may] defer further proceedings and place the person on probation for a term not to exceed five (5) years.”), was not equivalent to expungement under Federal First Offender Act, 18 U.S.C. § 3607, for purposes of avoiding a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for immigration purposes)."[51]

[51] Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir. Jun. 20, 2007) ("[T]he First Offender Act, 18 U.S.C. § 3607, permits the expungement of first-time simple drug-possession offenses for all purposes, including immigration adjudications. As the Ninth Circuit noted in Lujan-Armendariz, there is no reason to suppose that Congress repealed the First Offender Act sub silentio. It thus makes sense to read the § 1101(a)(48)(A) definition to exclude expungements."); Elkins v. Comfort 392 F.3d 1159 (10th Cir. 2004) (if the FFOA were to apply, the defendant would have to get the exact same sentence to probation as is provided under the FFOA).