At the present time, the prospects for extending the Lujan rule to other circuits do not appear great.[65]  Opinions from the First, [66] Second,[67] Third,[68] Fifth[69] and Seventh Circuits[70] indicate they will likely follow the BIA approach, and reject the Ninth Circuit rule.

 

            On the other hand, the United States Supreme Court in Lopez v. Gonzales[71] used a uniform federal standard to determine whether a possession conviction constitutes an aggravated felony, and used the federal criminal drug statutes to set the definition. Following the same approach in the Lujan context would establish a uniform federal standard, and use the FFOA to set it.  Counsel outside the Ninth Circuit can argue that this decision strengthens the Ninth Circuit’s reasoning in Lujan for the argument that state possession offenses expunged under state law that would have qualified for FFOA treatment under the hypothetical federal prosecution scenario should be considered expunged for immigration purposes.

 

Counsel in jurisdictions other than the Ninth Circuit cannot rely upon an expungement to eliminate the immigration effects of a conviction, even as to first-offense drug possession convictions that would have been prosecuted in federal court under the FFOA.[72]

[65] Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (noting that the language of § U.S.C. § 1101(a)(48)(A) “leaves nothing to the imagination” and that state rehabilitative programs that do not vacate a conviction on the merits “have no bearing in determining whether an alien is to be considered ‘convicted’ under section 1101(a)(48)(A).”); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir.1999) (federal sentencing case); Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003) (stating, in case where petitioner successfully completed a one year probation sentence for a heroin possession charge in state court that would have made him eligible for FFOA relief had he been prosecuted by the federal government, that “[t]his language unambiguously points to the conclusion that the disposition of Acosta's criminal case in [state court pursuant to a state law permitting dismissal of charge after completion of probation without verdict] constitutes a ‘conviction’ ”); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir.1999) (state delayed adjudication of guilt); Gill v. Ashcroft, 335 F.3d 574, 577 (7th Cir. 2003) (“Every court that has considered the subject believes that § 1101(a)(48)(A) governs the handling of repeat offenders and that expungements (or restorations of civil rights) under state law do not negate a ‘conviction’ for purposes of immigration law.”); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); United States v. Zamudio, 314 F.3d 517, 522 (10th Cir. 2002) (adopting plain meaning of § 1101(a)(48)(A) when interpreting U.S.S.G. § 2L1.2(b)(1)); Resendiz-Alcaraz v. United States Att’y General, 383 F.3d 1262, 1269(11th Cir. Sept. 10, 2004) ("clear language of the statute [INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) definition of conviction] includes [as convictions] state convictions expunged under state rehabilitative laws").

[66] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000).

[67] See United States v. Campbell, 167 F.3d 94 (2d Cir. 1999) (conviction “vacated” under state rehabilitative statute could still be considered in enhancing a federal criminal sentence under USSG § 2L1.2(b)(2)).

[68] Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. August 15, 2003) (even if not a conviction under state law, deferred adjudication constitutes a conviction under immigration law; Third Circuit rejects Lujan-Armendariz v. INS rationale as contrary to statutory language, and providing no basis for equal protection claim).

[69] Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004) (petition for review denied, despite contention that deferred adjudication for drug possession did not constitute conviction for immigration purposes by analogy to the Federal First Offender Act); Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2003) (order vacating federal conviction, not on the merits, does not erase it for immigration purposes: “Renteria-Gonzalez contends that he no longer has a conviction, because the district court vacated his conviction in 1992.  The INS responds that the Order to Vacate is null for lack of subject matter jurisdiction or, in the alternative, that a properly vacated federal conviction remains valid for purposes of the immigration laws, even if a district court has purported to vacate the conviction to avoid the immigration-related consequences of the conviction.  We conclude that, though the INS may not now collaterally attack the Order to Vacate, the vacated conviction remains valid for purposes of the immigration laws.”); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999).

[70] Ramos v. Gonzales, 414 F.3d 800 (7th Cir. July 12, 2005); Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. July 8, 2003) (Illinois “410 probation” and subsequent dismissal continues to be a conviction under federal law, even if not a conviction under state law; Lujan-Armendariz v. INS rejected as upholding an “abandoned administrative practice over statutory text”).

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

[72] Matter of Thomas, 24 I. & N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a State’s rehabilitative procedures), citing United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).

Other

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