Lujan-Armendariz v. INS

Decision Date16 March 2000
Docket NumberNos. 96-70431,ROLDAN-SANTOY,P,LUJAN-ARMENDARI,N,s. 96-70431
Citation2000 WL 1051858,222 F.3d 728
Parties(9th Cir. 2000) HECTOR TITOetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. MAUROetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. o. 99-70359 Office of the Circuit Executive
CourtU.S. Court of Appeals — Ninth Circuit

Jose A. Bracamonte and Dorothea P. Kraeger, Phoenix, Arizona, for petitioner/appellant Hector Tito Lujan-Armendariz; Katherine Brady, Immigrant Legal Resource Center, Marc Van Der Hout, Donald Ungar, and Robert Jobe, San Francisco, California, for petitioner/appellant Mauro Roldan-Santoyo.

David W. Ogden, Acting Assistant Attorney General; Mark C. Walters, Assistant Director; and Margaret Perry, Department of Justice, Washington, D.C., for respondent/appellee.

Petitions for Review from the Board of Immigration Appeals; INS No. A29-554-987 A90-286-629

Before: Henry A. Politz,1 Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

REINHARDT, Circuit Judge:

This case involves two long-time residents found guilty of first time simple possession, and attempted simple possession, of narcotics, respectively. The INS seeks to remove them from the country, even though in both cases state courts have held that the petitioners are no longer "convicted" under state law, because both petitioners have received the benefit of state rehabilitative statutes. We hold that the petitioners before us do not presently stand "convicted" within the meaning of the immigration laws, and that they, therefore, are not subject to removal. We also hold that the Federal First Offender Act was not repealed in whole or in part by the recent amendments to the immigration laws,2 and that persons whose offenses would qualify for treatment under the First Offender Act but who are convicted and have their convictions expunged under state laws may not be removed on account of those offenses3.


The facts with respect to the consolidated petitions before us are straightforward. Hector Tito Lujan-Armendariz (here inafter "Lujan") filed the first petition. Lujan has been in the United States since 1982 and became a legal resident in 1987. In 1989 he was convicted of attempted possession of narcotic drugs (cocaine) under Arizona law (A.R.S. S 13-3408), which was his first offense related to controlled substances. The state court suspended imposition of his sentence, and instead ordered him to serve five years of probation (and also to pay a fine). Subsequently, the INS sought to deport Lujan based on the offense.4 At a hearing before an Immigration Judge, Lujan conceded he was deportable, but sought to depart voluntarily. This request was denied, and the IJ ordered Lujan deported. The BIA affirmed this decision.

When a significant change in the applicable law occurred,5 Lujan sought an order from state court expunging his conviction. The state court entered an order "vacating the judgment of guilt and dismissing the charges against the defendant as stated in the application herein." Although the court's order mentioned no particular statute, both parties agree that the expungement occurred under Arizona Revised StatutesS 13907. That statute provides that, upon application and fulfillment of relevant conditions, a judge "shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction."6 Lujan then filed a motion to remand his case to an Immigration Judge, arguing that the conviction no longer made him deportable (and also that he could adjust his status based on his marriage to a U.S. citizen). The BIA denied his motion, holding that despite the state's action, Lujan stands "convicted" for immigration purposes. Lujan petitioned for review.

Mauro Roldan-Santoyo (hereinafter "Roldan") first entered the United States in 1982, and has been a legal resident since 1988. In 1993 he pled guilty, in Idaho, to simple possession of marijuana (under Id. St. S 37-2732), which was his first offense relating to controlled substances. Following the plea, the court withheld judgment, but ordered Roldan to serve three years of probation, to pay several fines, and to serve up to ninety days in jail, at his probation officer's discretion. The court further stated that if Roldan successfully completed the probation, he could seek to have the charges dismissed, or alternatively to have the crime reduced to a misdemeanor.

Based on the state proceeding, the INS sought to deport Roldan in 1994. Roldan then sought expungement of his offense in state court, on the basis of his compliance with the terms of probation up to that time. The state of Idaho did not contest his motion, and the charges were dismissed. The state court's order stated that "It is herewith ordered that defendant is discharged from court probation. It is further ordered that this charge is dismissed pursuant to the withheld judgment and as far as this matter is concerned defendant shall not be considered a convicted felon under federal or state laws." Although the state court cited no law under which it was acting, both parties agree that the court acted pursuant to Idaho Code S 19-2604(1), which provides for the dismissal of cases where the judgment was withheld and the defendant has complied with the requisite probationary conditions. In spite of the state court's order, the INS argued, and the Immigration Judge found, that Roldan stands "convicted" for immigration purposes, and was thus deportable.7

Roldan appealed to the Board of Immigration Appeals. While the appeal was pending, Congress enacted, for the first time, a statutory definition of a conviction for immigration purposes. Thus, the Board considered Roldan's claim under the new definition.8 Sitting en banc, a divided Board of Immigration Appeals affirmed the decision of the Immigration Judge, holding that under the new definition the state court's order expunging Roldan's offense could not be given effect. Four Board Members dissented. Roldan petitioned for review.


Initially, we must consider a jurisdictional issue. The INS alleges that the petitioners are removable by reason of their having been convicted of the criminal offenses described above. Our jurisdiction has been limited in cases involving the removal of aliens who have been convicted of certain criminal offenses. See generally 8 U.S.C. S 1252.9 We do retain jurisdiction, however, to determine whether or not petitions challenging deportation orders are subject to the jurisdictional bar. Put another way, when an alien petitions for review of a removal order, we retain jurisdiction to determine whether we have jurisdiction to consider the petition. Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir. 1999); Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000). Here, we hold that we do have jurisdiction to entertain the petitions because, as we explain below, neither petitioner stands "convicted" for purposes of the immigration laws. Thus, neither petitioner falls within the class of persons whose challenges to removal we are precluded from reviewing.10


Because the history of the legal developments in this area gives much-needed context to the question before us, we will describe that history in some detail.

Courts have long dealt with the problem of what effect to give, for immigration and other purposes, to a finding of guilt that has been expunged under a state rehabilitation statute. The broad term "rehabilitation statute" describes a variety of long existing state laws that allow people found guilty of certain crimes to have their records cleared, usually based in part on their good behavior for a period of time following the finding of guilt11. In the immigration context, the BIA held in 1951 that an alien could not be deported on the basis of a crime where the finding of guilt had been expunged. Matter of O-T-, 4 I&N Dec. 265 (BIA 1951). Later, however, the Attorney General held that this rule did not apply to drug offenses: such offenses could result in deportation even if they were expunged. Matter of A-F-, 8 I&N Dec. 429 (AG 1959). This remained the rule for all drug offenses until 1970, when Congress adopted the Federal First Offender Act (hereinafter "the First Offender Act" or "the Act"), a rehabilitation statute that applies exclusively to first time drug offenders who are guilty only of simple possession.12 Both before and after the passage of the Act, the broad schemes for the rehabilitation of offenses under state law continued to serve as an important means of lessening the consequences of certain convictions, including avoiding deportations which would otherwise be excessively harsh.

The First Offender Act is a limited federal rehabilitation statute that permits first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases. The Act allows the court to sentence the defendant in a manner that prevents him from suffering any disability imposed by law on account of the finding of guilt. Under the Act, the finding of guilt is expunged and no legal consequences may be imposed as a result of the defendant's having committed the offense. The Act's ameliorative provisions apply for all purposes.

The rule prescribed in the First Offender Act has been applied in deportation cases regardless of whether the finding of guilt was obtained under the federal statute or under state law. Equally important, the rule applies regardless of the procedural differences associated with the various state statutes. While some state procedures allow, as does the First Offender Act, for deferral of conviction itself, such that no judgment of...

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