For the past 11 years, under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), aliens convicted in federal or state court of single simple drug posossion and placed in Removal Proceedings in any state under the jurisdiction of the 9th Circuit Court of Appeals (9th Circuit), could escape the harsh consequences of deportation by invoking a statute known as the Federal First Offender Act ("FFOA") as long as their convictions had been expunged. On July 14, 2011, in Nunez-Reyes v. Holder, No. 05-7430, the 9th Circuit reversed Lujan-Armendariz and ruled that aliens who are the subject of such expunged simple possession convictions, may not be relieved from deportation under FFOA.
The reasons for this reversal are complex and beyond the purpose of this blog. Simply put however, it appears that the 9th Circuit felt some pressure to rule in this manner in light of similar rulings by numerous other Federal Circuit Courts of Appeal around the country. The analysis used by the 9th and these other Circuit Courts is troubling, in that it would appear to set the stage for the Constitutional justification of just about any arbitrary or capricious law against immigrants conjured up and enacted by Congress, regardless of whether those laws violate the time-honored concepts of "Equal Protection," freedom of expression, or even perhaps "due process" itself.
The only bright spot in Nunez-Reyes is the fact that the decision will not be applied retroactively. This means that qualified aliens whose convictions took place prior to July 14, 2011, will continue to receive the benefit of FFOA for deportation purposes.
Aliens (including those with Lawful Permanent Resident status) must be extremely careful with respect to even the most minor drug involvement, since the lawyers' options to defend them from deportation in the 9th circuit has been reduced. The notion that an alien knows some individual who was convicted of a minor drug offense and escaped deportation must be dispensed with, since cases within the 9th Circuit applying FFOA and those in which the alien is ineligible for FFOA protection, may have dramatically different outcomes.
It should also be noted that state rehabilitative schemes such as "expungement," are not generally useful as a technique for rescuing aliens from the consequences of deportation. For most criminal convictions, something much more involved than simple expungement must be undertaken and approved in criminal court to wipe away the conviction for immigration purposes.
By: Duane M. Hamilton
