Lujan Exception Only Available in the Ninth Circuit's Jurisdiction

I have written about the severe consequences of any narcotics conviction to anyone not a U.S. citizen. Outside of the jurisdiction of the Ninth Circuit, such a conviction will result in deportation. The Lujan Exception provides relief to someone charged with "first-time, simple possession" of a narcotic if that person is eligible under a rehabilitative state statute equivalent to the FFOA (Federal First Offense Act).

"Indeed, although the BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-Regino, 23 I&N Dec. 223, (BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [INA].”)
Matter of Erick MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005).

The Attorney General's Decision further states:

"I do not decide whether the Ninth Circuit was correct in concluding that the new definition of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, equal protection guarantees require that an alien with a state conviction who would have been eligible for FFOA relief had the conviction been rendered in federal court receive the same treatment as a alien with a federal conviction. I do note, however, that at least three circuits disagree with the Ninth Circuit. See Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems plain that rational-basis review is satisfied here”);
Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-99 (8th Cir. 2002) (disagreeing with Ninth Circuit and declining to address possible repeal of FFOA by IIRIRA because no equal protection violation for treating alien convicted under state law differently from alien convicted under federal law where the sentences were dissimilar and Congress could have intended to provide relief only for federal convictions, over which Congress would have control)."