Lujan-Armendariz v. INS, Footnote 28

Immigration Courts within the jurisdiction of the Ninth Circuit Court of Appeals have been routinely denying aliens the benefits of the Lujan exception if they have not already expunged their first-time simple possession conviction. The Board of Immigration Appeals has read this exception as narrowly as possible in order to limit the ameliorative affects of this rule. This narrow reading of the Lujan exception is hitting the alien community especially hard. For instance, a Lawful Permanent Resident has taken a negotiated plea on a drug possession charge and the court entered a deferred entry of judgment pending successful completion of Prop 36 Drug Diversion. The county sheriff turns over the alien number to ICE. ICE agents come and take the LPR into custody and the Immigration Courts refuse to release the alien on the basis the alien is subject to mandatory detention provision of INS § 236(c)(1)(C). Once in custody, the alien cannot complete their drug classes and cannot expunge their convictions. Very harsh, but happening all the time.

THE BASIC RULE
In 1994, the Ninth Circuit held that the Federal First Offender Act's ameliorative provisions extended to aliens under an Equal Protection Argument. See Garderding v. INS, 30 F.3d 1187, 1189 (9th Cir. 1994); Matter of Manrique, Int. Dec. 3250 (BIA 1995). This Gaberdingrule further extended the FFOA's ameliorative benefits of the Act to anyone granted relief under a comparable state rehabilitative statute.

Subsequent to Congress’s passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), wherein Congress statutorily codified the definition of what constitutes a “conviction” for immigration purposes, the Ninth Circuit reaffirmed its prior holding in Gaberding, reasoning that the FFOA, and its state equivalent rehabilitative statutes, were not explicitly repealed, nor repealed by implication in the passage of the IIRIRA. The Ninth Circuit held, “in simple drug possession cases any alien who has been accorded rehabilitative treatment under a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the FFOA.” Lujan-Armendariz v. INS, 222 F.3d at 735.

However, at the other end of the spectrum, the Ninth Circuit has held that an alien who could have been eligible for inclusion in a state rehabilitative statute, for a first-time, simple possession charge, but did not availed himself of the ameliorative provisions is not eligible for exclusion of removal under the Lujan exception. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292 (9th Cir. 2004).

The Ninth Circuit has previously addressed this potential middle ground, in footnote 28 of Lujan, which states in relevant part:
Construing the statute as determining the time at which a conviction occurs, as a general matter, would leave open the question whether the Act [Federal First Offender Act] precludes deportation of an alien who has received a deferred adjudication but has not yet had his proceedings expunged because he has not completed his term of probation and therefore has not yet satisfied a judge that dismissal of the offense is warranted. Our review of the history and purpose of the Act strongly suggests that such a person is protected by the Act's provisions, and our analysis of the law regarding repeals by implication suggests that no implied repeal occurred in that respect either.

Currently the Immigration Courts and the BIA are routinely denying anyone relief if they have not already had their conviction expunged, contrary to the clear intend of the Ninth Circuit. The key is to bring a case before the court so that they can extend their holding to these middle ground cases.