Practice Alert - Ninth Circuit
Partially Overrules Holding in Matter of Roldan

By Katherine Brady, Immigrant Legal Resource Center

Lujan-Armendariz, Roldan-Santoyo v. INS

Expungement and Other Relief for First Offense, Simple Possession of a Controlled Substance.

Today the Ninth Circuit reversed the BIA's published decision in Matter of Roldan and held that an expungement and other "rehabilitative relief" will eliminate a conviction of first offense, simple possession of a controlled substance. Therefore a noncitizen within the Ninth Circuit who gained an expungement, deferred adjudication, diversion, or other type of rehabilitative relief cannot be held deportable or inadmissible for having a drug conviction, as long as the conviction was of a first offense, simple possession.

In making this ruling, the Court re-affirmed its decisions in Garberding v. INS , 30 F.3d 1137 (9th Cir. 1994) and Paredes-Urresterazu v. INS, 36 F.3d 801 (9th Cir. 1994). These decisions hold that equal protection requires that laws benefiting immigrants in federal court proceedings should also apply to immigrants who have been through state court proceedings. This principle may have other good applications. The court also cited with approval Board Member Rosenberg's dissent in Matter of Roldan.

Expungement of Convictions for Moral Turpitude, Firearms, and Other Offenses

The Ninth Circuit did not directly rule on the BIA's other holding in Roldan, in which the BIA eliminated the immigration effect of expungements and other rehabilitative relief on conviction of moral turpitude, firearms, and other offenses. (We'll refer to these as "general expungements.") Because both Mr. Roldan and Mr. Lujan had drug convictions, the Court found that it did not need to reach this issue.

Hope for Future Cases. Although the court did not overrule the BIA's Roldan holding on general expungements, the court did include good language damning the government's reasoning. It stated that it found the government's reasoning on general expungements to be "highly unpersuasive." While the court stated that it need not make a definitive ruling on congressional intent, the court explicitly disagreed with the BIA's ruling that in enacting the definition of conviction at 101(a)(48)(A), Congress intended to eliminate the immigration effect of all rehabilitative relief. The Court stated:

"While Congress specifically commented on the need to eliminate the BIA's bifurcated rule regarding deferred adjudication, it did not mention the rule, cited with approval by the BIA in Ozkok, that expunged convictions cannot serve as the basis for deportation. Thus, it appears that Congress was concerned primarily, as had been the BIA, with the question whether aliens could be deported during the period that followed a determination of guilt, but preceded the expungement of the offense, and not with attempting to alter the longstanding rule that convictions that are subsequently overruled, vacated, or otherwise erased no longer have any effect for immigration or most other purposes (or, as in the case of the Fedral First Offender Act, have no effect for any other purpose.)" Footnote 23.

This and other language from the opinion should be useful in future cases where noncitizens must argue against the Roldan holding that general expungements and rehabilitative relief are no longer effective.