What if she was a foreigner?

Friday, October 10th, 2008
By: Jonathan MontagJ.D.

Cindy McCain

Numerous newspaper and magazine articles have written that Cindy McCain, second and current wife of Senator John McCain, entered a federal first offender drug diversion program in 1993 or 1994 after becoming a addicted to pain killers she obtained illegally through a charity she ran. According to these reports, the program required community service, drug treatment and reimbursement to the Drug Enforcement Agency for investigative costs. There is a Federal First Offenders Act [FFOA], found at 18 U.S.C. 3607, which states:

§ 3607. Special probation and expungement procedures for drug possessors

(a) Pre-judgment probation. If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844)–
(1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and
(2) has not previously been the subject of a disposition under this subsection;

the court may, with the consent of such person, place him on probation for a term of not more than one year without entering a judgment of conviction. At any time before the expiration of the term of probation, if the person has not violated a condition of his probation, the court may, without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation. At the expiration of the term of probation, if the person has not violated a condition of his probation, the court shall, without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation. If the person violates a condition of his probation, the court shall proceed in accordance with the provisions of section 3565 [18 USCS § 3565].

Being convicted of a drug offense renders a person deportable from [INA § 237(a)(2)(B)] and inadmissible to [INA § 212(a)(2)(A)(i)(II)] the United States. Successfully completing the FFOA diversion program, however, cures the effect of a conviction. Section (c) of 18 USC § 3607 states:

(c) Expungement of record of disposition. If the case against a person found guilty of an offense under section 404 of the Controlled Substances Act (21 U.S.C. 844) is the subject of a disposition under subsection (a), and the person was less than twenty-one years old at the time of the offense, the court shall enter an expungement order upon the application of such person. The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof. The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings. A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose.

Because there would be no result to the conviction, if Mrs. McCain were a foreigner, she would not be deportable for her offense. That this is the result is because of two things Mrs. McCain is very lucky about:

1. Mrs. McCain was prosecuted by the federal government. The FFOA is a federal law and it only applies to federal prosecutions. She would not have automatically been as protected by a state diversion law.

2. If she had been prosecuted by a state diversion law, she is lucky she lives in Arizona. Arizona has diversion statutes like the FFOA, as well as expungement statutes like the FFOA. For example, Arizona Revised Statutes (ARS) Section 13-907. If a person is prosecuted under Arizona law and then has his or her conviction diverted and expunged under Arizona law, he or she would be treated as if he or she was treated under FFOA. However, this would be true only in the Ninth Circuit of the United States. In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the Ninth Circuit Court of Appeals held that the diversion or expungement of a simple drug conviction under a state law will have no immigration effect, just as FFOA treatment will have no immigration effect. The Court of Appeals felt it would be irrational to treat federal convicts differently than state convicts. No other judicial circuit court of appeals adopts this view. Thus, Mrs. McCain, if she had been convicted of a crime in any state court and had it expunged and found herself in deportation proceedings in any state outside the Ninth Circuit or in the District of Columbia, she would be subject to deportation. She is obviously lucky she is a United States citizen or her ability to travel about the country or to leave it and come back would be severely restrained.

One simple possession of drugs is forgivable under INA § 240A(a), Cancellation of Removal for Certain Permanent Residents. Eligibility for forgiveness for more than one conviction  differs in the various judicial circuits. Eligibility for forgiveness requires that the person applying for forgiveness have accrued seven years of residence in the United States after a lawful admission and be a permanent residence for five years. An immigration judge would then judge the good and bad factors in the person’s life to decide if the person deserved forgiveness. Curiously, if Mrs. McCain were able to receive a presidential pardon, that would not stave off deportation. See INA § 237(a)(2)(A)(vi); Matter of Suh, 23 I. & N. Dec. 626 (BIA 2003). At least we know that Mrs. McCain is not supporting her husband’s presidential bid to assist foreigners similarly situated to her with state convictions ward off the specter of deportation by having her husband pardon them.


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