The Effect of a First Time Drug Possession Conviction on Immigration Cases

New Development in 2011 regarding the Lujan-Armendariz v. INS

Today on July 15, 2011, the Ninth Ciucuit en banc withdrew from the Lujan-Armendariz decision and held that “rehabilitative relief” will no longer eliminate a first conviction for simple possession or a similar other minor drug offense.  Generally, rehabilitative relief is expungement or other withdrawal of plea after successful completion of probation, such as, in California, under Deferred Entry of Judgment program (DEJ), California Penal Code Section 1203.4 or Prop 36 program.  This deceision is Nunez-Reyes v. Holder and the decision can be found here:

Nunez-Reyes v. Holder

http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf

The good news is that this new opinion will apply only prospectively.  Prospective application means that convictions received after the date of publication of the opinion, beginning July 15, 2011 will not get the benefits that were previously available under Lujan-Armendariz.  However, on the issue of being under the influence (not possession), the court will apply the new rule retroactively.

Other available arguments under Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010)

In Retuta, the Ninth Circuit found that there was no conviction for immigration purposes where a noncitizen pled guilty to a drug offense and the judge deferred entry of judgment, imposed a small fine, and immediately suspended the fine with no conditions attached.  The court ruled that the suspended find did not amount to the “punishment, penalty or restraint” required to meet the statutory definition of a conviction for immigration purposes.  This appears to have been an unusual record, since probation is an element of deferred entry of judgement under California Penal Code Section 1000.

While this case involved a DEJ drug possession disposition, there is no requirement that the offense involved a controlled substance, or be a first offense of any kind, to come within the rule that a conviction does not exist where no penalty or restraint has been imposed.  The only requirements are that a (a) “adjudication of guilt has been withheld” and (b) the only penalty is a small fine or other non-incarceratory sanction that is imposed by suspended without condition.  If that scenario arises in any type of proceedings that do not result in final adjudication, this may not amount to a conviction.

Lujan-Armendariz v INS is now overruled by Nunez-Reyes

Before Nunez, according to the 9^th Circuit US Court of Appeals, a first time drug conviction under a state law that has been expunged has the same effect as an expungement of a first time drug conviction under a federal law. Therefore, the Federal First Offender Act (FFOA), which eliminates the effect of a conviction for immigration purposes and applies in federal conviction cases where there has been an expungement, should also apply in state conviction situations.
Prior to Lujan-Armendariz v INS, there was a distinction between people who were: 1) convicted, had a record, and then subsequently had their record expunged and 2) those who, through good behavior, never had the conviction recorded (effectively expunging the record before it was created). Those in the second scenario could escape the effect of a drug conviction on immigration status, but those in the first category could not and were summarily deported for a drug conviction.
The Board of Immigration Appeals (BIA) found in Rolden that a conviction meant that an immigrant remained convicted notwithstanding a subsequent state action to expunge the conviction. Immediately thereafter, the Ninth Circuit reversed the BIA decision in Roldan solely with respect to immigrants who are convicted of a first-time drug possession offense. Attorney General John Ashcroft confirmed this decision at the time, differentiating between convictions that fell under the FFOA and those convictions for crimes such as firearms offenses.
Keep in mind that the effect of an expungement in terms of a first time drug possession conviction does not apply to more serious drug felony convictions or for those who are charged multiple times with drug possession. If an immigrant is convicted with a first time drug possession charge, immediately work through the courts to get the conviction dismissed or to have the record expunged in order to avoid deportation.
In order to be eligible for an expungement, an immigrant must be in the United States legally. If the immigrant is in violation of their visa or entered the United States illegally, they will be deported upon receiving a drug conviction of any kind.
The expungement process is different in every state and an attorney should be consulted as soon as possible in order to help guide an immigrant through the process of getting their record cleared before a deportation takes place. In addition, immigrants must keep in mind that a drug conviction could affect the legalization process as USCIS will look at the moral character of the applicant at the time of adjustment of status. USCIS may look at the drug conviction, no matter how minor, as a detrimental aspect of the application and the conviction may impact their decision on an immigration application.

Immigration Attorney Assistance with Criminal Deportation Issue

If you need help with your immigration case due to criminal convictions, please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney.  Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation are open 24 hours a day, 7 days a week.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California.  Free immigration consultation and advice within 24 hours guaranteed.