Within the jurisdiction of the Ninth Circuit Court of Appeals, there is a narrow exception to the harsh immigration consequences of a narcotics possession for a “first-time simple drug possession” charge.
An alien offender, who is accorded rehabilitative treatment under a state statute and would have been eligible for federal first offender treatment under the provisions of the Federal First Offender Act, had he been prosecuted under federal law is not considered to have a conviction for immigration purposes. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Mr. Caballero is prima facie eligible under this exception.
“In sum, the protection against deportation that results from the Act’s expungment of first-time simple possession drug offenses has been applied not only with respect to offenses expunged directly under the Act, but also in the case of offenses expunged under state rehabilitative laws, regardless of whether the state law allows for the entry of a judgment of conviction and its later expungment or provides for a deferred adjudication procedure similar to that utilized in the Act.” Id. at 735-56.
The Ninth Circuit later incorporated the four-prong test in BIA’s decision in Matter of Manrique, 1995 WL 314732, for purposes of analyzing eligibility of inclusion within this exception. The Court held that if someone “would have been eligible for first offender treatment under federal law, he would not stand ‘convicted’ for purposes of the immigration laws.” Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).
“To qualify for first offender treatment under federal law, a person must show that (1) he has been found guilty of simple possession of a controlled substance, an offense described in section 21 U.S.C. 844; (2) he has not, prior to the commission of such offense, been convicted of violating a federal or state law relating to controlled substances; (3) he has not previously been accorded first offender treatment under any law; and (4) the court has entered an order pursuant to a state rehabilitatiuve statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) citing Matter of Manrique, 1995 WL 314732.
