         Treatment of Expunged State Convictions Under the
                 Immigration and Nationality Act
Under the definition of “conviction” contained in the Immigration and Nationality Act, for a conviction
  not involving a first-time simple possession of narcotics, an alien remains convicted, and thus
  removable under the Act, notwithstanding a subsequent state action to vacate or set aside the
  conviction that does not reflect a judgment about the merits of the underlying adjudication of guilt.

                                                                                   January 18, 2005

                          OPINION IN DEPORTATION PROCEEDINGS

    The Board of Immigration Appeals (“BIA” or “Board”) referred its decision in
this matter for my review pursuant to 8 C.F.R. § 3.1(h)(1)(ii) (1997). 1 In its decision,
the BIA determined that a new federal definition of “conviction” did not undermine
Attorney General precedent that held that a person convicted of a firearms offense
under state law is not subject to deportation under section 241(a)(2)(C) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(2)(C) (1994), 2 if that
conviction has been subsequently “expunged.” Pending my decision, the BIA
reversed itself and concluded that the new federal definition of “conviction” means
that an alien remains convicted notwithstanding a subsequent state action to expunge
the conviction. In re Roldan, 22 I. & N. Dec. 512, 523 (B.I.A. 1999). The Ninth
Circuit subsequently reversed the BIA’s decision in Roldan with respect to aliens
convicted of first-time drug possession offenses under state law. Lujan-Armendariz
v. INS, 222 F.3d 728, 750 (9th Cir. 2000). The Ninth Circuit’s decision does not
affect the applicability of Roldan to firearms offenses, but, in light of the Ninth
Circuit’s decision, I find it appropriate to certify the Board’s decision and set forth
clearly the Executive Branch’s interpretation of the relevant statute.
    For the reasons stated below, I find that the new federal definition of “convic-
tion” means that for a conviction not involving first-time simple possession of
narcotics, an alien remains convicted, and thus removable under current section
237 of the INA, notwithstanding a subsequent state action to vacate or set aside the
conviction. The BIA’s decision is reversed and remanded.




   1
     Now 8 C.F.R. § 1003.1(h)(1)(ii) (2004).
   2
     After the initial deportation order was entered in this matter, former section 241 of the Immigra-
tion and Nationality Act was redesignated as section 237 by section 305(a)(2) of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-598. The redesignated provision has been codified, with modifications that are not relevant here,
as section 1227 of title 8, U.S. Code.




                                                  1
                  Opinions of the Office of Legal Counsel in Volume 29


                                           I.

                                          A.

   Erick Marroquin-Garcia entered the United States without inspection in 1980.
He adjusted to the status of lawful permanent resident alien pursuant to section
245A of the INA in December of 1989. See 8 U.S.C. § 1255a (1994). He pleaded
guilty to unlawful possession of a firearm under California law on October 22,
1990. He was convicted in state court and placed on five years’ probation. The
state court ordered, as conditions of probation, that Marroquin-Garcia spend 365
days in the county jail and pay $100 restitution and the costs of his probation. In re
Marroquin, A90 509 015, slip op. at 2 (B.I.A. Feb. 21, 1997).
   The Immigration and Naturalization Service (“INS”) instituted deportation
proceedings against Marroquin-Garcia on the basis of his state firearms convic-
tion. On September 13, 1994, an immigration judge ordered Marroquin-Garcia
deportable pursuant to what was then section 241(a)(2)(C) of the INA. See
Marroquin at 2. At that time, section 241(a)(2)(C) of the INA stated in pertinent
part that “[a]ny alien who at any time after entry is convicted under any law of
purchasing . . . possessing, or carrying . . . any weapon, part, or accessory, which
is a firearm or destructive device (as defined in section 921(a) of title 18) in
violation of any law is deportable.” 8 U.S.C. § 1251(a)(2)(C) (1994).
    During the pendency of his appeal to the BIA, Marroquin-Garcia filed a motion
in the Superior Court for the County of Los Angeles for relief pursuant to section
1203.4(a) of the California Penal Code. Section 1203.4(a) provides, inter alia, that

       [i]n any case in which a defendant has fulfilled the conditions of
       probation for the entire period of probation, or has been discharged
       prior to the termination of the period of probation, or in any other
       case in which a court, in its discretion and the interests of justice, de-
       termines that a defendant should be granted the relief available under
       this section, the defendant shall, at any time after the termination of
       the period of probation, if he or she is not then serving a sentence for
       any offense, on probation for any offense, or charged with the com-
       mission of any offense, be permitted by the court to withdraw his or
       her plea of guilty or plea of nolo contendere and enter a plea of not
       guilty . . . [and] the court shall thereupon dismiss the accusations or
       information against the defendant and except as noted below, he or
       she shall thereafter be released from all penalties and disabilities re-
       sulting from the offense of which he or she has been convicted, ex-
       cept as provided in Section 13555 of the Vehicle Code.

The Superior Court granted Marroquin-Garcia’s motion for relief under this
expungement statute on December 18, 1994, and ordered Marroquin-Garcia’s




                                           2
               Treatment of Expunged State Convictions Under the INA


“felony charge reduced . . . to a misdemeanor,” his plea of guilty set aside and
vacated, and the complaint against him dismissed. Marroquin at 2.
    Relying on the BIA’s decision in In re Luviano, 21 I. & N. Dec. 235 (B.I.A.
1996), Marroquin-Garcia argued on appeal to the BIA that the expungement of his
conviction meant that he had not been “convicted” for purposes of section
241(a)(2)(C) of the INA. As discussed more fully below, the BIA had held in
Luviano that prior Attorney General opinions compelled the conclusion that an
alien whose conviction for a non-narcotics-related offense had been expunged
pursuant to section 1203.4(a) of the California Penal Code had not been “convict-
ed” for purposes of section 241(a)(2)(C) of the INA. 21 I. & N. Dec. at 237 (citing
In re Ibarra-Obando, 12 I. & N. Dec. 576 (B.I.A. 1966; A.G. 1967)); In re G–,
9 I. & N. Dec. 159 (B.I.A. 1960; A.G. 1961). At the time the BIA was deciding
Marroquin, the Board’s decision in Luviano was pending before the Attorney
General. In light of a new federal definition of “conviction,” enacted in section
322(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628, the BIA
decided Marroquin-Garcia’s appeal rather than wait for the Attorney General’s
decision in Luviano. In Marroquin, the BIA concluded that the new federal
definition of conviction did not affect the Board’s decision in Luviano and
therefore that decision was still controlling. Hence, the BIA found Marroquin-
Garcia could not be deported based on the firearms offense. Marroquin at 6.
    Before addressing the merits of the Board’s decision, I will first review the
relevant history of this issue in greater detail.

                                        B.

   Prior to the enactment of the new federal statutory definition, the INA did not
define “conviction.” The federal courts, the Attorney General, and the BIA were
therefore provided with little legislative guidance as to how to interpret the
statutory provisions that subjected to deportation those persons who had been
“convicted” of certain types of offenses. Two distinct lines of Attorney General
precedent developed that addressed the effect of an expungement on a conviction
that would otherwise provide a basis for an order of deportation under the federal
immigration laws. Before discussing these lines of precedent, however, I must
clarify the term “expungement.” Throughout this opinion I will use the term
expungement to refer to the process of clearing a defendant’s record of a prior
conviction. This expungement is achieved generally through two means: either a
statute permits a deferred adjudication of a conviction such that a judgment is
never entered, or a court vacates or sets aside a judgment of conviction from the
books under a rehabilitative statute. As the Ninth Circuit has described the
difference,




                                        3
                     Opinions of the Office of Legal Counsel in Volume 29


        [under a] “vacatur” or “set-aside” [statute], a formal judgment of
        conviction is entered after a finding of guilt, but then is erased after
        the defendant has served a period of probation or imprisonment and
        his conviction is ordered dismissed by the judge. . . . [Under a] “de-
        ferred adjudication” [statute], no formal judgment of conviction or
        guilt is ever entered. Instead, after the defendant pleads or is found
        guilty, entry of conviction is deferred, and then during or after a pe-
        riod of good behavior, the charges are dismissed and the judge orders
        the defendant discharged.

Lujan-Armendariz v. INS, 222 F.3d 728, 735 n.11 (9th Cir. 2000).
   Returning to the Attorney General precedents, first, there were Attorney Gen-
eral decisions that held that aliens who had been convicted of what section
241(a)(4) of the INA termed “crimes of moral turpitude,” such as forgery or fraud,
were not subject to deportation if their convictions had been expunged. See Ibarra-
Obando, 12 I. & N. Dec. 576; In re G–, 9 I. & N. Dec. 159. Second, there was an
Attorney General decision that held that aliens who had been convicted of what
section 241(a)(11) termed “narcotics offenses,” such as the distribution of
marijuana, were subject to deportation even if their conviction had been expunged.
See In re A–F–, 8 I. & N. Dec. 429 (B.I.A., A.G. 1959). 3 In 1970, Congress carved
out a narrow exception for simple federal possession offenses when it enacted the
Federal First Offender Act (“FFOA”). The FFOA applies only to first-time drug
offenders who are guilty only of simple possession. It expunges such convictions
(after the successful completion of a probationary period) and was intended to
lessen the harsh consequences of certain drug convictions, including their effects
on deportation proceedings. Under the FFOA, no legal consequences may be
imposed following expungement as a result of the defendant’s former conviction.
18 U.S.C. § 3607 (2000). After considering the effect of the FFOA, the BIA
announced an exception to the holding of In re A–F–, finding that a first-time
simple drug possession offender, whose conviction was set aside pursuant to a
state statute, would not be deported if he or she would have been eligible for
treatment under the FFOA had the charges been filed in federal court. See In re
Manrique, 21 I. & N. Dec. 58, 64 (B.I.A. 1995); In re Werk, 16 I. & N. Dec. 234,
235–36 (B.I.A. 1977).
   At the time that the BIA decided Luviano, neither of the existing lines of ad-
ministrative precedent addressed directly the circumstance at issue in Luviano,
which concerned the effect of an expungement on a person who had been convict-


   3
     There, the Attorney General held that Congress’s progressive strengthening of the deportation
laws with respect to aliens who had committed narcotics offenses that would subject them to
deportation under what was then section 241(a)(11) of the INA revealed Congress’s intent to subject
such aliens to deportation even if their convictions had been technically “expunged” pursuant to section
1203.4(a) of the California Penal Code.




                                                   4
                Treatment of Expunged State Convictions Under the INA


ed of what the former section 241(a)(2)(C) termed a “firearms” offense. Neverthe-
less, the BIA concluded in Luviano that the prior Attorney General opinions had
established a rule that applied to all convictions that were not narcotics-related and
that had been expunged. The BIA concluded that this rule precluded such convic-
tions from serving as the basis for an order of deportation.
   After the BIA issued its decision in Luviano, Congress enacted section 322(a)
of IIRIRA, which amended the INA to define the term “conviction” for the first
time. The new definition provides:

       [t]he term “conviction” means with respect to an alien, a formal
       judgment of guilt of the alien entered by a court or, if adjudication of
       guilt has been withheld, where

          (i) a judge or jury has found the alien guilty or the alien has en-
          tered a plea of guilty or nolo contendere or has admitted sufficient
          facts to warrant a finding of guilt, and

          (ii) the judge has ordered some form of punishment, penalty, or
          restraint on the alien’s theory to be imposed.

IIRIRA § 322(a), 110 Stat. at 3009-628; INA § 101(a)(48)(A), 8 U.S.C.
§ 1101(a)(48)(A) (2000). Because Congress passed the new federal statutory
definition during the pendency of respondent’s appeal, the new statutory
definition of “conviction” applies here. See IIRIRA § 322(c), 110 Stat. at 3009-
629 (explaining that the new statutory definition shall apply “to convictions . . .
entered before, on, or after the date of the enactment of [IIRIRA]”). On May 31,
1996, after the enactment of IIRIRA, the Commissioner of the INS referred the
Board’s decision in Luviano to the Attorney General.
   The Attorney General’s review of the Luviano decision was pending at the time
Marroquin-Garcia’s appeal came to the BIA, but in light of the new federal
definition in IIRIRA, the BIA concluded that it should decide the merits of
Marroquin-Garcia’s appeal, rather than wait for the Attorney General’s decision in
Luviano. In construing this new federal definition, the BIA determined that the
statutory text did not make clear whether, or to what extent, Congress intended to
treat expunged convictions, of any type, as “convictions” for purposes of the
immigration laws. The BIA therefore turned to the legislative history. It relied
primarily on a joint explanatory statement in the conference report to the IIRIRA
that addressed the new definition. See Marroquin at 4–5. The joint explanatory
statement made particular mention of the BIA’s pre-Luviano decision in In re
Ozkok, 19 I. & N. Dec. 546 (B.I.A. 1988), in which the BIA had established rules
for determining whether a state court’s decision to withhold an adjudication of
guilt prior to the entry of a formal judgment of conviction—as opposed to vacating
or setting aside a conviction already entered—precludes a judge’s or jury’s finding
of guilt, or a defendant’s plea of guilty, from being deemed a “conviction” under



                                          5
                      Opinions of the Office of Legal Counsel in Volume 29


the INA. 4 H.R. Conf. Rep. No. 104-828, at 199, 223 (1996). The BIA noted that,
in contrast to the joint explanatory statement’s relatively detailed discussion of
Ozkok, “there was no discussion whatsoever” of the BIA and Attorney General
decisions that had established the rules for determining whether formal judgments
of conviction that had been entered and subsequently vacated or set aside consti-
tuted “convictions” under the INA. Marroquin at 5.
    The BIA concluded from the joint explanatory statement’s express reference to
Ozkok, and its failure to mention the other type of expungement decisions, that
Congress did not intend for the INA’s new definition of “conviction” to supplant
Luviano’s rule for determining whether a state court conviction that had been
formally entered, but subsequently vacated or set aside, constituted a “conviction”
under the INA. Id. The BIA determined that the new statutory definition of
“conviction” simply codified and refined the rules that the BIA had set forth in
Ozkok, for determining whether, the circumstance in which a formal judgment of
conviction has been withheld prior to entry, a finding of guilt constitutes a
“conviction” under the INA. Id. The BIA therefore held that, notwithstanding the
new federal statutory definition of “conviction,” Luviano continued to control
when a conviction had been vacated or set aside, and thus Marroquin-Garcia had
not been “convicted” for purposes of section 241(a)(2)(C) of the INA because his
conviction for a non-narcotics-related offense had been set aside pursuant to the
same California expungement law in Luviano. Marroquin at 6.
    The BIA referred this matter for my review as well. “If the Attorney General
ultimately determines that a conviction for a firearms offense survives for
immigration purposes despite a state procedure for expungement, the [Immigration
and Naturalization] Service is free to reinstate deportation proceedings against the
respondent here,” the BIA explained. Id. “At present, however, the [Immigration
and Naturalization] Service cannot seek the respondent’s deportation under section
241(a)(2)(C) of the Act on the basis of a criminal case in which the plea of guilty
has been set aside and vacated and the charges have been dismissed.” ld.
    After the BIA referred its decision in this case to me, the Board issued its opin-
ion in Roldan. In that case, the BIA considered whether an expunged narcotics
conviction could form the basis for an order of deportation in light of the new
definition of conviction in IIRIRA. Although Roldan appears to involve a deferred
adjudication, 5 the BIA found “it necessary to reconsider . . . the effect to be given

    4
      Over the years, the BIA had wrestled with the question of when a “conviction” occurs under state
statutes providing for varying degrees of deferred adjudication. It settled on a three-factor definition in
Ozkok. Under Ozkok, an alien was considered “convicted” when: (1) the alien had been found guilty or
pleaded guilty or nolo contendere or had admitted sufficient facts to warrant a finding of guilty; (2) the
judge had ordered some form of punishment; and (3) a judgment of guilt could be entered without
further proceedings relating to guilt if the person violated terms of his probation or other court order.
19 I. & N. Dec. at 551–52.
    5
      See id., 22 I. & N. Dec. at 514 (“the [state court] withheld adjudication of judgment, sentenced
him to 3 years’ probation and imposed several monetary penalties”); id. (“the respondent filed a motion




                                                    6
                    Treatment of Expunged State Convictions Under the INA


to any state action, whether it is called setting aside, annulling, vacating, cancella-
tion, expungement, dismissal, discharge, etc., of the conviction, proceedings,
sentence, charge, or plea, that purports to erase the record of guilt of an offense
pursuant to a state rehabilitative statute,” 22 I. & N. Dec. at 520. The BIA
determined that Congress intended to establish a uniform federal rule that
precluded the recognition of subsequent state rehabilitative expungements of
convictions. More precisely, the BIA found that because Congress clearly intended
that an alien with a deferred adjudication should be considered convicted,
Congress also must have intended that an alien with a “technical erasure of the
record of conviction” should be considered convicted. Id. at 521. As the BIA
stated,

        [i]t simply would defy logic for us, in a case concerning a conviction
        in a state which effects rehabilitation through the technical erasure of
        the record of conviction, to provide greater deference to that state’s
        determination that a conviction no longer exists. Under either scenar-
        io, the state has decided that it does not consider the individual con-
        victed based on the application of a rehabilitative statute.

        . . . Congress clearly does not intend that there be different immigra-
        tion consequences accorded to criminals fortunate enough to violate
        the law in a state where rehabilitation is achieved through the ex-
        pungement of records evidencing what would otherwise [have been]
        a conviction under section 101(a)(48)(A), rather than in a state where
        the procedure achieves the same objective simply through deferral of
        judgment.

Id. Based on its examination of the statutory text and legislative history, the BIA
concluded that it would “interpret the new definition to provide that an alien is
considered convicted for immigration purposes upon the initial satisfaction of the
requirements of section 101(a)(48)(A) of the Act, and that he remains convicted
notwithstanding a subsequent state action purporting to erase all evidence of the
original determination of guilt through a rehabilitative procedure.” Id. at 523. The
BIA qualified its holding by noting that its decision did not address the situation
where a state court vacates a conviction on the merits or on grounds relating to a
statutory or constitutional violation. Id. The BIA thus overruled Luviano and
Marroquin. Id. at 512.



in the Idaho state court for early release from probation and dismissal of the charge in accordance with
the withheld judgment”); id. at 530 (Board Member Villageliu, dissenting in part and concurring in
part, joined by Chairman Schmidt and Board Members Rosenberg and Guendelsberger) (characterizing
majority’s discussion of IIRIRA’s definition in relation to vacated convictions as dicta). But see id. at
513 (describing respondent as “a first offender whose guilty plea was vacated”).




                                                   7
                 Opinions of the Office of Legal Counsel in Volume 29


   In Lujan-Armendariz, the Ninth Circuit considered the BIA’s decision in Rol-
dan. The court was skeptical of the BIA’s conclusion that the new definition
covered vacated or set-aside convictions as well as deferred adjudications. See id.,
222 F.3d at 742. The Ninth Circuit noted that the amendment said nothing about
vacated convictions and could well be interpreted to establish only when a
conviction occurred without determining what might be the effect of a later
expungement. Id. at 741–42. The court did not decide this issue, however, and
concluded instead that because the new definition in IIRIRA did not repeal the
FFOA, equal protection principles mandated that aliens whose convictions had
been expunged pursuant to state law were still entitled to the same treatment as
those whose convictions had been expunged under federal law. Id. at 748–50.
Therefore, an alien could not be deported based on a state conviction of simple
possession where that conviction was expunged by the state, if a federal simple
possession conviction could have been expunged under the FFOA. In other words,
because the new definition of conviction did not repeal the FFOA, if an alien’s
conviction for a simple possession narcotics offense was expunged under a state
equivalent of the FFOA, that conviction could not serve as the basis for an order of
deportation, because, had the alien received the expungement under the FFOA,
that conviction could not form the basis for the order of deportation. See id. at 750.
   With this history in mind, I now turn to the question of the proper interpretation
of “conviction,” at least with respect to non-narcotics cases.

                                         II.

                                         A.

   As set forth above, the relevant statutory provision defines a “conviction” to be
“a formal adjudication of guilt of the alien entered by a court.” INA
§ 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A). This definition, though broad, is
clearly not intended to encompass convictions that have been formally entered but
subsequently reversed on appeal or in a collateral proceeding for reasons pertain-
ing to the factual basis for, or procedural validity of, the underlying judgment. Cf.
In re P–, 9 I. & N. Dec. 293 (A.G. 1961) (concluding that conviction set aside
pursuant to writ of coram nobis for a constitutional defect could not serve as basis
for order of deportation). Subsequently set-aside convictions of this type fall
outside the text of the new definition because, in light of the subsequent proceed-
ings, they cannot be considered formal adjudications of the alien’s guilt.
   This same logic, however, suggests that a different conclusion is warranted for
convictions such as the one at issue in this case. As was noted in dissent in
Luviano, state laws that authorize the subsequent expungement of a conviction
typically do so for reasons that are entirely unrelated to the legal propriety of the
underlying judgment of conviction—reasons, in other words, that are unrelated to
concerns about the factual basis for, or the procedural validity of, the conviction.



                                          8
                    Treatment of Expunged State Convictions Under the INA


21 I. & N. Dec. at 247–48 (Board Member Hurwitz dissenting, joined by Board
Member Vacca). These state expungement laws authorize a conviction to be
expunged in order to serve rehabilitative ends and without reference to the merits
of the underlying adjudication of guilt. Id. Such expunged convictions would
appear, therefore, to survive as formal adjudications of guilt entered by a court.
   Here, the state expungement law that provided relief for Marroquin-Garcia
permits state courts to provide relief to all convicted defendants who seek it and
have either completed their terms of probation or have been discharged prior to the
termination of their probation. See Cal. Penal Code § 1203.4(a). 6 It affords a
remedy that is readily distinguishable from, for example, an appellate court’s
reversal of a conviction on the merits, which is available only to persons who can
demonstrate that the entry of the initial conviction was in error. Consistent with
this conclusion, section 1203.4(a) of the California Penal Code does not, for
purposes of California law, “eradicate a conviction or purge [the] defendant of the
guilt established thereby.” Adams v. Cnty. of Sacramento, 1 Cal. Rptr. 2d 138, 141
(Cal. Ct. App. 1991); accord id. (explaining that the provision “‘was never
intended to obliterate the fact that defendant has been ‘finally adjudged guilty of a
crime’”) (quoting Meyer v. Bd. of Med. Exam’rs, 206 P.2d 1085 (1949)). Indeed, a
defendant who receives relief from the California provision still remains subject to
certain state law civil disabilities that result from the initial entry of a formal
adjudication of guilt, i.e., the entry of a judgment of conviction. 7
   For these reasons, the relief provided by the California expungement law does
not reflect a judgment about the merits of the underlying adjudication of guilt. It
does not provide relief equivalent to a decision on appeal (or in a collateral
proceeding) that reverses or vacates a judgment of conviction for insufficiency of


    6
      Section 1203.4(a) of the California Penal Code also authorizes state courts to provide the same
relief in any “case in which a court, in its discretion and the interests of justice, determines that a
defendant should be granted the relief available under this section.”
    7
      Section 1203.4(a) of the California Penal Code provides that “in any subsequent prosecution of
the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the
same effect as if probation had not been granted or the accusation or information dismissed.” In
addition, the provision states that “the order [granting relief] does not relieve [the defendant] of the
obligation to disclose the conviction in response to any direct question contained in any questionnaire
or application for public office, for licensure by any state or local agency, or for contracting with the
California State Lottery.” Finally, the provision provides that “[d]ismissal of an accusation or
information pursuant to this section does not permit a person to own, possess, or have in his or her
custody or contro1 any firearm capable of being concealed upon the person or prevent his or her
conviction under Section 12021.” California law further provides that numerous professional and
business licenses may be denied, revoked, or suspended as a result of a conviction, notwithstanding that
fact that it has been expunged pursuant to section 1203.4(a). See Luviano, 21 I. & N. Dec. at 246–47
(Board Member Hurwitz dissenting, joined by Board Member Vacca); see also Ramirez-Castro v. INS,
287 F.3d 1172, 1175 (9th Cir. 2002) (noting that “California Penal Code section 1203.4(a) provides
only a limited expungement even under state law”); Garcia-Gonzales v. INS, 344 F.2d 804, 808 (9th
Cir. 1965) (explaining that it is “sheer fiction to say that the conviction is ‘wiped out’ or ‘expunged’”
by section 1203.4(a)).




                                                   9
                  Opinions of the Office of Legal Counsel in Volume 29


the evidence or for procedural errors at trial. It serves only to ameliorate certain of
the punitive consequences that attend a court’s legally valid finding of guilt. Even
though the initial judgment of conviction has been set aside pursuant to section
1203.4(a), the merits of the underlying judgment have not been called into
question and adverse legal consequences continue to follow from it. Thus, that
judgment would still appear to fall squarely within the plain language of the new
federal statutory definition of “conviction,” which defines a “conviction” under the
INA to be “a formal judgment of guilt of the alien entered by a court.” INA
§ 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
    The conclusion that the phrase “a formal judgment of guilt of the alien entered
by a court” should be construed to encompass, by its plain terms, convictions that
have been vacated or set aside pursuant to expungement statutes like section
1203.4(a) finds additional support in the treatment that the new federal statutory
definition of “conviction” accords an “adjudication of guilt [that] has been
withheld.” Id. The new federal statutory definition of “conviction” clearly
provides that a defendant who has been found guilty by a judge or jury, or has
pleaded guilty, has been “convicted” for purposes of the INA if the judge has
“withheld a formal adjudication of guilt” but has nevertheless imposed penalties or
restraints upon the defendant’s liberty. Id. This part of the new federal statutory
definition of “conviction” ensures that a defendant who has been found guilty of
unlawful conduct, and has been punished for that conduct, will not avoid deporta-
tion by utilizing a state court procedure that spares the defendant from technically
being adjudged “convicted.”
    The congressional determination that even some state court decisions to with-
hold adjudications of guilt prior to the entry of a judgment of conviction should be
counted as convictions under the INA supports the more modest conclusion that
the phrase “a formal judgment of guilt of the alien entered by a court” encom-
passes judgments of conviction that, at least in the ordinary case, have been
entered but then vacated or set aside for reasons that do not go to the legal
propriety of the original judgment and that continue to impose some restraints or
penalties upon the defendant’s liberty. A conviction that has been vacated or set
aside pursuant to a law like the California statute ordinarily does not differ in
substance from the type of state court decision to withhold an adjudication of guilt
prior to entry that Congress has explicitly deemed to constitute a “conviction.” The
relief that the court provides in each type of case does nothing to call into question
the propriety of the underlying adjudication of guilt.
    Indeed, this case well illustrates the point. Even though Marroquin-Garcia’s
conviction has been set aside under section 1203.4(a), the underlying judgment of
guilt still counts as a “conviction” under California law, and he not only has been
subjected to punishment as a consequence of that conviction but also remains
subject to various civil disabilities as well. The existence of these continuing legal
disabilities certainly suggests that, for purposes of determining whether the initial




                                          10
                   Treatment of Expunged State Convictions Under the INA


adjudication of guilt may serve as the basis for an order of deportation, the
expungement in question should not be equated with a court’s setting aside a
conviction on the merits in a collateral proceeding or on appeal.
    Because even an “adjudication of guilt [that] has been withheld” may constitute
a “conviction” under the new federal definition that Congress has enacted, there
would appear to be no reason to construe the phrase “a formal judgment of guilt
entered against the alien by a court” to exclude expunged convictions of the type
at issue here. Indeed, in light of the treatment that the new federal statutory
definition accords certain state court decisions to withhold an adjudication of guilt
prior to the entry of a conviction, the conclusion that the new federal statutory
definition fails to encompass the broad category of expunged convictions identi-
fied in Luviano would lead to anomalous results.
    For example, an alien defendant who requested a state court to withhold an
adjudication of guilt prior to the entry of a conviction could in many cases be
subject to deportation. By contrast, an alien who was equally culpable of the same
offense but waited until after the conviction had been entered to seek the relief that
a provision such as the California expungement law may provide would not be
subject to deportation. Under such an approach, a convicted alien who had been
found guilty, had served a substantial period of time in prison, and whose convic-
tion had been subsequently vacated, could end up in a more favorable position for
purposes of federal immigration law than an alien who had never had a conviction
entered against him or her and had never served any time in prison for the offense.
It is doubtful that Congress would have intended to provide greater relief under the
immigration laws to alien defendants who had been convicted and served long
prison terms than to equally culpable alien defendants who had never been
formally convicted and who had been subject to comparatively minor restraints on
their liberty. There would appear to be little basis, therefore, for construing the
seemingly plain definition of “conviction” that Congress has now enacted to
accord such disparate treatment to equally culpable aliens. 8

                                                  B.

   As discussed above, the Ninth Circuit reached a different conclusion only with
respect to a narcotics offense that would have fallen within the Federal First
Offender Act had the charges been brought in federal court. See Lujan-

    8
      My conclusion is, as was demonstrated in the Board’s decision in Roldan, 22 I. & N. Dec. at 514–
19, consistent with a proper reading of the legislative history underlying the enactment of 8 U.S.C.
§ 1101(a)(48)(A). Congress “deliberately broaden[ed]” the meaning of conviction and made guilt—not
rehabilitation—the dispositive factor in determining whether an individual is to be removed from the
United States. H.R. Conf. Rep. No. 104-828, at 224 (1996). Legislators noted that “there exist in the
various States a myriad of provisions for ameliorating the effects of a conviction. As a result, aliens
who have clearly been guilty of criminal behavior and who Congress intended to be considered
‘convicted’ have escaped the immigration consequences normally attendant upon a conviction.” Id.




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                    Opinions of the Office of Legal Counsel in Volume 29


Armendariz, 222 F.3d at 750. With respect to offenses that do not fall within the
FFOA or a state equivalent, the Ninth Circuit held that the BIA’s interpretation in
Roldan—i.e., that the new definition of conviction covers vacated or set aside state
convictions as well as deferred adjudications—was a permissible construction of
the new statutory definition of conviction. See Murillo-Espinoza v. INS, 261 F.3d
771, 774 (9th Cir. 2001). And other circuits to address the issue have agreed with
the BIA that a vacated conviction falls within the new definition of conviction. See
Renteria-Gonzalez v. INS, 322 F.3d 804, 812–14 (5th Cir. 2002) (applying plain
meaning of new IIRIRA definition to find that vacated federal conviction for
trafficking in aliens remained conviction for purposes of INA); United States v.
Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (applying the plain language of new
definition to find that vacated conviction for possession of controlled substance
constituted conviction for sentencing purposes; “no provision excepts from this
definition a conviction that has been vacated”).
    Because this case does not involve a conviction for a narcotics offense and a
subsequent rehabilitation either under the FFOA or state law, I do not decide
whether the Ninth Circuit was correct in concluding that the new definition of
conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held,
equal protection guarantees require that an alien with a state conviction who
would have been eligible for FFOA relief had the conviction been rendered in
federal court receive the same treatment as a alien with a federal conviction. I do
note, however, that at least three circuits disagree with the Ninth Circuit. See
Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems
plain that rational-basis review is satisfied here”); Gill v. Ashcroft, 335 F.3d 574,
579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining
to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697–99 (8th Cir. 2002)
(disagreeing with Ninth Circuit and declining to address possible repeal of
FFOA by IIRIRA because no equal protection violation for treating alien
convicted under state law differently from alien convicted under federal law
where the sentences were dissimilar and Congress could have intended to
provide relief only for federal convictions, over which Congress would have
control). Indeed, although the BIA acquiesces in the decision in the Ninth
Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-
Regino, 23 I. & N. Dec. 223, 235 (B.I.A. 2002) (“[E]xcept in the Ninth Circuit, a
first-time simple drug possession offense expunged under a state rehabilitative
statute is a conviction under section 101(a)(48)(A) of the [INA].”). *
    There remains the final question whether the expungement that Marroquin-
Garcia received in this case removes that conviction from the scope of the new
federal statutory definition of “conviction.” As has already been noted, section

   *
      Editor’s Note: The Ninth Circuit subsequently overruled Lujan-Armendariz in Nunez-Reyes v.
Holder, 646 F.3d 684, 689 (9th Cir. 2011) (en banc), stating that “we now agree with the BIA and our
sister circuits.”




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                Treatment of Expunged State Convictions Under the INA


1203.4(a) of the California Penal Code does not serve to provide relief that is
based on a judgment about the legal propriety of the underlying judgment of
conviction. It merely provides a means by which certain defendants who have
been lawfully convicted and subjected to punishment may be relieved of many,
though not all, of the remaining legal consequences that normally attend an
adjudication of guilt. Therefore, notwithstanding the relief that petitioner received
under section 1203.4(a) of the California Penal Code, he has been “convicted” for
purposes of what was then section 241(a)(2)(C) of the INA.

                                                JOHN D. ASHCROFT
                                                  Attorney General




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