En Banc Decision: Nunez-Reyes v. Holder (05-74350) (full opinion available here) overruling the Ninth Circuit’s equal protection holding in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).
Many of us suspected this case was coming, but — even so – it still knocks the wind out of an immigration attorney.
Background. Controlled substance convictions (simple possession, under the influence, possession for sale, etc.) are by and large a disaster in immigration. They make you inadmissible (and ineligible for a waiver of that inadmissibility except for one conviction for a very small amount of marijuana), they make you deportable, and they make you an aggravated felon (when related to sale). In other words, they’re usually a life-ruiner.
But ”America is a second-chance nation.” Judge Pregerson. To that end, the federal government enacted the Federal First Offender Act (FFOA), which allows someone convicted of a first federal controlled substance crime to eliminate that conviction for all purposes as long as they successfully complete a rehabilitation program. Even though expungement-like post-conviction activity will not usually eliminate a conviction for immigration purposes, an FFOA expungement is actually honored.
So then come FFOA-like state rehabilitation expungements. Over ten years ago, California voters opted to extend FFOA-like treatment to state controlled substance convictions as well, and many other states did the same. While the requirements for and implementation of these programs vary slightly from the FFOA, they are designed to achieve the same end: give people a second chance when it comes to minor drug possession charges.
The question remained whether immigration would honor state FFOA-like expungement statutes as well. In 2000, the Ninth Circuit gave us an answer: yes. The Court held in Lujan-Armendariz v. INS that equal protection mandated state expungements for first offenders be honored for immigration purposes as well. We, as immigration lawyers, like (well, liked…ugh) Lujan. For our clients who got caught in 2001 with an extremely small amount of marijuana (what is now commonly referred to as a “pot ticket”), successfully completed Prop 36 diversion, and have never been involved in any other criminal activity, Lujan let them move on.
Unfortunately, no one else on the planet agreed. The Board of Immigration Appeals and every other circuit who has decided this issue all held that a state expungement cannot eliminate a first-offense drug possession charge for immigration. The Ninth Circuit has now reversed itself and overruled Lujan. The primary focus was whether there was a rational basis for Congress not including state rehabilitation programs in the statute, of which they found at least two (each of which had been articulated by other circuits). Now, state rehabilitative expungements will not eliminate a conviction for immigration. Rats.
The good news is that this will only apply to people who accept Prop 36 treatment after today. The Ninth Circuit did hold that Lujan had been relied on by so many people, that it would be wrong to apply the new rule anything but prospectively. Which — incidentally — saved my partner and I a day of pulling files to see who used to be eligible for relief from deportation.