Lujan-Armendariz v. INS: 9th Circuit Finds Expungement Can Eliminate Immigration Effects of Drug Conviction, Overruling BIA's Roldan Decision

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

LUJAN-ARMENDARIZ V. INS: 9TH CIRCUIT FINDS EXPUNGEMENT CAN ELIMINATE IMMIGRATION EFFECTS OF DRUG CONVICTION, OVERRULING BIA'S ROLDAN DECISION
Immigrants' Rights Update, Vol. 14, No. 5, August 31, 2000

The United States Court of Appeals for the Ninth Circuit has ruled that an expungement issued under a state law that is analogous to the Federal First Offender Act (FFOA) eliminates the effect of the conviction for immigration purposes. The decision resulted from two petitions for review of deportation orders that were consolidated and overrules the Board of Immigration Appeals' precedent decision in Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999) (see "BIA Makes Sweeping Changes to Law on 'Convictions' for Immigration Purposes," Immigrants' Rights Update, Apr. 30, 1999, p. 2).

The two petitioners in this case, Mr. Lujan-Armendariz and Mr. Roldan-Santoyo, are lawful permanent residents who were each found guilty of first-time drug offenses (simple possession and attempted simple possession, respectively). Each petitioner was given probation and subsequently had the criminal proceedings expunged under a state statute. In each case, the BIA found that despite the expungement, the petitioner remained "convicted" for immigration law purposes because of the definition of "conviction" that was added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

On appeal, the Ninth Circuit first noted that if the petitioners can, in fact, be considered "convicted" for immigration purposes, the court would not have jurisdiction over their appeals. However, since the court retains the authority to determine whether it has jurisdiction, it noted that it may resolve whether the petitioners were "convicted." Ultimately, the court determined that the petitioners cannot be considered "convicted" under the INA, establishing that the court has jurisdiction over both the appeals and the appeals' resolution on the merits.

In order to provide a context for understanding the issues in this case, the decision sets forth a detailed exposition on the nature of expungements and the history of their treatment in immigration law. The court began by observing that states use a variety of different procedures to allow persons who have been found guilty of a crime to clear their records. Expungement statutes are considered "rehabilitation statutes" because the record of the crime is erased not in order to allow the defendant to contest guilt but instead to reward good behavior and promote rehabilitation. Under some expungement statutes, a finding of guilt and the formal entry of a judgment of conviction are requisite elements, and only after the defendant has served a period of probation or imprisonment is the conviction ordered dismissed and considered erased for most purposes. Under other statutes, called "deferred adjudication" laws, no formal judgment of guilt or conviction is entered. Instead, after the defendant pleads or is found guilty, conviction is deferred and never entered if the defendant successfully undertakes a period of good behavior.

Since the enactment of the INA, the BIA has held that an expungement generally eliminates the effects of a conviction for immigration purposes. However, because of the wide variety of procedures that states have used to grant expungements, the BIA has had difficulty developing a rule that treats immigrants uniformly regardless of the particular state from which their convictions arose. Prior to the BIA's decision in Roldan, the most recent decision of the agency that sought to reconcile the variances in state expungement statutes was Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988). In Ozkok the BIA found that convictions that had been expunged did not have immigration consequences. However, the BIA also distinguished between different procedures used by states to accomplish expungements. In its view, a conviction resulting from a procedure where an entry of a guilty finding is required constituted a "conviction" until it was actually vacated. By contrast, a "deferred adjudication" did not constitute a "conviction" at any time.

While the BIA generally recognized that an expungement eliminates the immigration consequences of a conviction, for many years it made an exception to this rule for drug offenses because of the particular societal interest in combating illegal drug use. However, in 1970 Congress enacted the FFOA, which allows expungements for first-time convictions for simple possession drug offenses. Resulting from Congress's recognition that drug possession was widespread among otherwise law-abiding young persons, the law was intended to provide a procedure by which they could avoid the harsh consequences of a criminal conviction for committing a first-time simple possession drug offense. The FFOA expressly eliminates the effect of a conviction for a federal simple possession offense for all purposes, and the BIA recognized that it was effective for immigration purposes.

Initially, the BIA also found that an expungement under a state statute that is an exact counterpart to the FFOA eliminates the immigration consequences of a conviction. However, the BIA has refused to recognize expungements under state statutes that are broader than the FFOA. In Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994), the Ninth Circuit ruled that the BIA's refusal to recognize expungements under state statutes broader than the FFOA violates equal protection where the individual would have been eligible for an expungement had he or she been convicted under federal rather than state law. The BIA essentially adopted this rule in Matter of Manrique, 21 I. & N. Dec. 58 (BIA 1995), although it did not go so far as to recognize state expungements for convictions where the defendant was not given probation but rather was incarcerated.

In enacting the IIRIRA in 1996, Congress adopted verbatim the definition of "conviction" set forth in the BIA's decision in Ozkok, with one exception: Congress eliminated the proviso that allowed individuals subject to "deferred adjudications" to avoid the effects of a conviction. The court noted that this change appears simply intended to bring the treatment of deferred adjudication procedures in line with that of other expungements. "While Congress specifically commented on the need to eliminate the BIA's bifurcated rule regarding deferred adjudications," the Ninth Circuit observed, "it did not mention the rule, cited with approval by the BIA in Ozkok, that expunged convictions cannot serve as the basis for deportation. Thus, it appears that Congress was concerned primarily . . . with the question whether aliens could be deported during the period that followed a determination of guilt but preceded expungement of the offense, and not with attempting to alter the longstanding rule that convictions that are subsequently overruled, vacated, or otherwise erased no longer have any effect for immigration or most other purposes."

However, in Roldan, the BIA had decided that the IIRIRA definition was intended to make a much greater change-the elimination of all rehabilitative state statutes' effect for immigration purposes. The Ninth Circuit found this reasoning "highly unpersuasive," but decided it would be unnecessary to resolve the issue in adjudicating this case. The court reasoned that even if the BIA were correct in concluding that the new "conviction" definition generally eliminates the effect of expungements for immigration purposes, the IIRIRA would only affect this case if the new statute repealed the FFOA.

Concluding that the IIRIRA did not repeal the FFOA, either expressly or by implication, the court found that nothing in the new "conviction" definition would prohibit giving effect to the FFOA's mandate—i.e., that an expungement of a first-time drug offense under that statute eliminates the effects of the conviction for all purposes.

The court also rejected the INS's argument that even if federal expungements under the FFOA must still be recognized, state expungements such as those received by the petitioners in this case are no longer to be recognized. The court found that the equal protection analysis that it applied in Garberding continues to require that the BIA recognize expungements granted under state laws, where the defendants could have been prosecuted under federal law and qualified for an expungement under the FFOA.

Lujan-Armendariz v. INS, __ F.3d __, 2000 U.S. App. LEXIS 18298 (9th Cir. Aug. 1, 2000).