Tooby's California Post-Conviction Relief for Immigrants

Expungements of qualifying first offense controlled substances convictions are not effective to eliminate their immigration consequences outside the Ninth Circuit.  See § 10.19, infra.  This has very important implications for all noncitizens with convictions qualifying for Lujan treatment in the Ninth Circuit. 

            A noncitizen with a simple possession conviction that would have been a misdemeanor, if prosecuted in federal court, is deportable and inadmissible for a controlled substances conviction.[63]  When the expungement is obtained, and it qualifies under Lujan, the person is no longer deportable or inadmissible in the Ninth Circuit only.  If the person steps outside the Ninth Circuit, s/he is immediately subject to arrest by ICE as a deportable noncitizen, and can there be placed into removal proceedings, and deported on account of the controlled substances conviction, since the expungement is worth nothing outside the Ninth Circuit.

            A noncitizen who has been convicted of a possession offense that would have been a felony if prosecuted in federal court, has been convicted of an aggravated felony.  This includes simple possession of any amount of flunitrazepam (a date-rape drug), possession of more than five grams of crack cocaine, or a second conviction of simple possession under certain circumstances.[64]  This person – outside the Ninth Circuit – immediately becomes subject to removal for an aggravated felony conviction.

            Therefore, counsel must advise persons with these convictions that the expungement solution dictated by Lujan is effective only within the Ninth Circuit.  If the person travels to Paris, s/he must reenter the United States through a Port of Entry in the Ninth Circuit, which includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington.

            Noncitizens with these convictions who travel within the United States, but leave the Ninth Circuit, must take care not to come to the attention of federal law enforcement or immigration authorities, or local law enforcement authorities cooperating with them.  It would be unwise for them to stray too close to an international border, or its "functional equivalent," for fear of coming to the attention of the authorities.

            This jeopardy ends only upon naturalizing to United States citizenship, or vacating the conviction on the basis of a ground of legal invalidity, and obtaining a dismissal of the charges or a replacement conviction that does not trigger adverse immigration consequences.

[63] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II)(inadmissibility); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i)(deportability). 

[64] Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625 (Dec. 5, 2006).