The Ninth Circuit reverses its long-held precedent on the effectiveness of expungements of some drug crimes.

Sunday, July 17th, 2011
By: Jonathan MontagJ.D.

If I knew how to put a black box around a posting to signify a sad, dark day for non-citizens, I would do it for this posting as I write about a new decision, Nunez Reyes v. Holder, which overrules Lujan-Armendariz v. INS,  a decision that recognized state expungements of simple possession drug offenses so that the harsh immigration consequences of drug convictions would not apply to those with expungements.

First, what are the “harsh consequences” of simple possession offenses? According to INA § 212(a)(2)(A)(i)(II), any admission to or conviction for any drug offense renders an alien inadmissible. That means the person cannot enter the United States as a permanent resident or become a permanent resident after entering the United States. The one exception is if there was one conviction of possessing thirty grams or less of marijuana more than 15 years earlier or if a showing can be made of extreme hardship to a U.S. citizen or permanent resident spouse, parent, son, or daughter of the alien.

So, assume your daughter travels abroad and meets a British gentleman. They fall in love, marry, and settle in Britain. The fellow, in his youth, was convicted of possessing cocaine he used once at a party – say twenty years ago. Under British law he had the crime erased after he finished the rehabilitation program he had to go to and paid some fines.  Having formed a family, you entice them to come with your grandchildren and move in near you and start a life in the United States. Well, they’re not coming because he cannot get a permanent residence visa.

Now suppose your son falls for a girl in his college dorm whose family came from abroad two or three years earlier when the father opened a business here. They date and after graduating college they marry. They then go off to graduate school and this girl gets arrested at a graduate student soiree and pleads no contest to possessing a small amount of marijuana. She is detained by immigration authorities. Your son’s tries to keep her here by having her apply for permanent residence, but because she cannot prove the amount of marijuana she possessed (which must be 30 grams or less) or that her deportation would cause your son extreme hardship  – he can always move to her homeland – she cannot get a visa, must leave and cannot come back.

Under the Lujan-Aremendariz holding, someone caught up in the business of pleading to or admitting to one minor drug crime could, after either having that crime expunged, or after if he or she completed a diversion program, not have to worry about being permanently barred or banished from the United States.

The basis for this “special treatment” was the Federal First Offender Act, found at 18 USC § 3607(b),   which allows people convicted of one simple possession offense to avoid any legal consequences for the conviction after it is expunged. The Lujan-Armendariz court, based on series of precedents, held that it would be unfair (technically, violative of the Constitutional guarantee of equal protection, which purports to mandate that laws treat similarly situated persons similarly) to treat people with expunged state convictions differently from people with expunged federal convictions.

The Nunez Reyes decision ended all this, saying that treating state one-time simple-possession convicts differently from federal one-time simple-possession convicts was fair for two reasons:

1. Congress, which makes the laws, could not know whether state prosecutors and courts prosecute and convict people of simple drug offenses for the same reasons the federal government does. It could be that states accept guilty pleas for simple possession from serious drug dealers for expediency’s sake, when the federal prosecutors would never do that.

2. It is not fair that people convicted in states with diversion or expungement statutes may not be deported while people in states with diversion or expungement statutes would be.

My own view is that neither reasons alleviates the fairness concern. As for the first reason, even a cursory look at how the federal system looks at drug crimes shows that under the federal system all kinds of deals are made, just like under the state systems. Besides, Congress could not possibly have believed that drug cases are handled uniformly by every U.S. attorney and every federal district court judge in every federal district court in the United States. As for the second reason, the unfairness was that some state convicts are treated differently from all federal convicts. That unfairness is only exacerbated if all state convicts are treated differently from all federal convicts. It does not make things fairer to make more people suffer because some people suffer more than others. For example, if a father is accused of being unfair because he beats one child mercilessly for offenses that he ignores in two others, fairness is not restored by his beating two of them mercilessly and not the third.

The Nunez Reyes court also indicated that its decision was motivated by a change in the definition of conviction in 1996 found at INA § 101(a)(48)(A), but the court did not explain how the change in the definition affected the impact of the Federal First Offender Act or its state analogs on drug convictions. A dissent by Judge Pregerson argued that it had no affect.

The second thing the decision did was to apply this change in the law only to convictions after the date of the decision, July 14, 2011. The idea behind this was to protect people who pled guilty in the belief that the Lujan-Armendariz policy was the law of the Ninth Circuit – which it has been for more than a decade. Opposition to prospective application of the decision was articulated by Judge Ikuta, joined by Judges O’Scannlain and Callahan, who explained that treating decisions as prospectively only is contrary to the current trend in the law to view judge’s decisions as interpreting what the law is and always actually was and not to view the decisions as new decisions with new affects. The dissent as to prospective application also argued that attorneys advising clients about how to plead to drug possession offenses so as to avoid immigration consequences should not have relied on the long-standing Lujan-Armendariz decision because, as the BIA and all other circuits disagreed with it, it was eventually doomed to be reversed. I for one, would not have advised a client to avoid a guilty plea and fight a case, risking a longer and more expensive criminal proceeding, conviction for a harsher crime with a harsher sentence and one that would have led inevitably to deportation, based on such a prognostiction, just as I would not advise a client now to accept an expungement or a diversionary sentence counting on President Obama to be re-elected, Chief Justice Roberts to have another, this time more serious and disabling seizure, and Lujan-Armendariz to be vindicated by the Supreme Court – though who can say with complete certainty that this will not happen? Nor would I give such advice with an expectation that one day Congress will repeal the statutes rendering people inadmissible and deportable for simple drug possession crimes — or even decriminalize drug possession, which is also something that could happen.

The third thing the court did was reverse an earlier decision in Rice v. Holder which held that the treatment available to first offenders of simple drug possession crimes should also apply to people convicted of one-time being under the influence of drugs. The Nunez Reyes court rejected that decision, indicating that being under the influence of drugs is worse than possessing the drug. This despite there being no federal under the influence drug crime at all, that being under the influence of a drug is a misdemeanor in California while possessing a drug can be a felony, and the obvious fact that people usually possess drugs to take them. The court noted that being under the influence can be more dangerous because “one could foolishly agree to hide drugs for a friend, which does not create an immediate risk of dangerous behavior,” which makes one wonder what all these people are doing hanging around holding drugs for friends, though I must admit I have had more than one client tell me that was exactly what he was doing. That, or that he did not know there was drugs in his pocket as he was wearing pants he borrowed from a friend.

Odd about the reversal of Rice v. Holder is that this portion of the decision applies retroactively – people that pled guilty to being under the influence and having the conviction diverted or expunged in reliance on Rice are now subject to removal despite their reliance on Rice v. Holder. Why this distinction between Rice and Nunez Reyes is not clear.

The three parts of the Nunez Reyes decision are designated like this:

Part A: Overruling Lujan-Aremendariz v. INS

Part B: Applying the law prospectively only

Part C: Overruling Rice v. Holder

Dissent: Dissenters to overruling Lujan-Armendariz and Rice

For those keeping score, this is how the en banc panel voted:


Kozinski: ABC

Schroeder: ABC

Fletcher: B and Dissent

Pregerson: Dissent

O’Scannlain: A

Thomas: ABC

Graber: ABC

Wardlaw: ABC

Callahan: A

Smith: ABC

Ikuta: A

It should be noted that those who joined A and not B did not need to join C because there is no circumstance where C would survive if they joined A but not B. I suppose Judge Fletcher’s joining in B and then dissenting was her way of trying to at least limit the damage caused by A, not knowing if B would get a majority or not.

As for the impact of this, Judge Pregerson said it first and best:

America is a second-chance nation. Each year, thousands of people, some of them immigrants to this country, are caught up in our justice system by making the mistake of committing a minor drug offense. But Congress through the FFOA has seen fit to give those folks who commit the most minor drug offenses an opportunity—a second chance— to redeem themselves through rehabilitation, and thereafter walk a straight and narrow path to become productive members of society and a credit to their families. For some immigrants, including thousands of lawfully-admitted residents, this second chance also means being able to stay in the country with their families intact. The majority’s abandonment of our precedent today means that first-time minor drug offenders within our circuit who have fully complied with their state’s stringent rehabilitation programs, and who have had their minor convictions expunged by a state court judge, nonetheless will be subject to removal from the United States. For them, there will be no second chance. Thousands of families will be rendered asunder, and tens of thousands of American-born children will suffer the consequences. This harsh result, I submit, is repugnant to the values of kindness, compassion, and fundamental fairness. I therefore strongly dissent.

Posted July 17, 2011.



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