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AILA/AILF amicus brief to BIA in Matter of Mario Roberto

Cite as "AILA InfoNet Doc. No. 01060726 (posted Jun. 7, 2001)"

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS





In the Matter of )
)
Mario Roberto MADRIZ-ALVARADO
)   In Removal Proceedings
)   A73-735-178
Respondent
)






BRIEF OF AMICI CURIAE
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
AND AMERICAN IMMIGRATION LAW FOUNDATION







American Immigration Lawyers Association
American Immigration Law Foundation
1400 Eye Street, NW, Suite 1200
Washington, D.C. 20005

Lisa J. Palumbo
Diana C. White
Cleo J. Kung, Law Student
Legal Assistance Foundation
of Metropolitan Chicago
111 W. Jackson Blvd., 3rd Floor
Chicago, Illinois 60604





INTEREST OF AMICUS

The American Immigration Lawyers Association (AILA) is the national bar association of over 7,000 attorneys who practice immigration law. AILA member attorneys represent tens of thousands of families in the United States, including immigrants in removal proceedings. AILA is affiliated with the American Bar Association.

The American Immigration Law Foundation (AILF) is a non-profit organization dedicated to increasing public understanding of immigration law and policy, promoting public service and professional excellence, and advancing fundamental fairness in immigration law and administration.

Both AILA and AILF are dedicated to the fair application of our nation's immigration laws through advancing the jurisprudence and administration of law pertaining to immigration, nationality, and naturalization. Their role today is more important than ever, as America's immigration laws have become highly complex and, in many cases, draconian in their application.

This is so particularly in the case of immigrants with criminal convictions, where recent changes to the Immigration and Nationality Act (INA) have exposed many more immigrants to the risk of removal with no possibility of relief, and exile from their families. As a result, AILA and AILF have a keen interest in how the Board of Immigration Appeals (the Board) will interpret Congress's recent attempt to create a statutory definition of "conviction" for immigration purposes, which was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and is codified at INA § 101(a)(48)(A).

Thousands of immigrants with first-time drug possession offenses may be deemed to have "convictions" if the Board adheres to its views in Matter of Roldan. Many, like Mr. Madriz, face the possibility of being found "inadmissible" and therefore ineligible ever to adjust their status, even where they have a U.S. citizen parent petitioning on their behalf. Others already admitted may find that a first-time drug possession offense prevents them from accumulating the seven years' residence in the United States necessary to become lawful permanent residents. Still others may find that a first-time drug possession offense, together with another simple possession offense, makes them "drug traffickers" in the INS's eyes and therefore mandatorily deportable as "aggravated felons." In all of these instances, no relief from deportation is available once a first-time drug possession offense is treated as a "conviction."

On August 1, 2000, the Court of Appeals for the Ninth Circuit issued a decision in the consolidated cases of Hector Tito Lujan-Armendariz and Mauro Roldan-Santoyo. See Lujan-Armendariz v. INS, and Roldan-Santoyo v. INS, 222 F.3d 728 (9th Cir. 2000) (Lujan). This decision vacated the removal orders upheld by the Board, and effectively reversed the decision of the Board in Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999) (Roldan), which had interpreted the new definition in INA § 101(a)(48)(A) very broadly. In light of that decision, when Mr. Madriz's case presented the same issue again, the Board requested amicus briefs from AILA and the Federation for American Immigration Reform (FAIR). AILA and AILF welcome the opportunity to present their position on this matter of great importance to immigrants, and to urge that the Board adopt the decision in Lujan nationally.

I. INTRODUCTION

Up until 1996, there was no actual definition of "conviction" in the INA. Instead, there existed a body of common-law doctrine, state and federal statutes proscribing various offenses, judicial interpretations of those statutes, and fifty-plus years of Board decisions. Aliens and their lawyers relied on this body of law to know when the disposition of an offense would constitute a "conviction" for immigration law purposes, resulting in deportability or deportation. The Board's jurisprudence has shaped this area of law significantly.

Over the years, a consensus has emerged that three distinct, yet co-existing, categories of dispositions should not be treated as "convictions" under the immigration laws: (1) adjudications of juvenile offenses under the Federal Juvenile Delinquency Act (FJDA) or any state counterpart to the FJDA; (2) adjudications of offenses under the Federal First Offenders Act (FFOA) or any state counterpart to the FFOA; and (3) criminal convictions (other than narcotics offenses that do not qualify for first-offender treatment) expunged under other state rehabilitative statutes.

In 1996, Congress enacted INA § 101(a)(48)(A) as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).1 After § 101(a)(48)(A)'s enactment, Roldan was the Board's most ambitious attempt to decide what effect Congress intended the new definition of "conviction" to have. The Board decided that Congress intended to wipe out virtually the entire body of developed law at a single stroke, repealing the express language of the FFOA and dispensing with all the judicial and Board decisions dealing with dispositions under state analogues to the FFOA and other rehabilitative statutes. Roldan, Int. Dec. 3377, at 12-13, 19.

The first court to review the Board's decision in Roldan was the Ninth Circuit Court of Appeals, in consolidated petitions for review brought by Mr. Roldan and Mr. Lujan-Armendariz. 222 F.3d 728. When the Court of Appeals decided Lujan, it rejected virtually every aspect of the Board's decision in Roldan. The Court found that Congress did not intend to repeal the FFOA, either explicitly or by implication. See Section II. A below. The Court also found that Congress did not intend to disturb the body of law that had developed over more than half a century, relating to rehabilitative statutes and expungements. See Section II.B below. Rather, Congress meant to resolve a particularly nettlesome issue that had arisen, under a discrete group of Board decisions, about when a conviction would be deemed to occur under deferred adjudication statutes. See Section II.C below.

The question before the Board today is how the Board will interpret INA § 101(a)(48)(A) in light of the Court of Appeals' decision in Lujan and the Court's strong disapproval of Roldan. AILA and AILF urge the Board to adopt the holding of Lujan, and apply it nationally, for three reasons: (1) the Board incorrectly determined in Roldan that Congress repealed the express language of the FFOA, swept aside court and Board decisions related to the FFOA and comparable state first-offender statutes, and discarded fifty-plus years of Board precedent on expungements generally; (2) Lujan strikes the appropriate balance between Congress's legislative intent and the Board's various streams of doctrine and precedent; and (3) adopting the Court's decision in Lujan will create national uniformity in the definition of "conviction," resulting in predictable and fair treatment for all aliens. Adopting the Court's decision in Lujan will also be consistent with other instances in which the Board has adopted the reasoning of a federal appellate court in the interest of fostering national uniformity.2

II. ARGUMENT

A. Congress Did Not Mean § 101(a)(48)(A) To Repeal The Unequivocal Directive Of The FFOA.

The first question for the Board is whether Congress, in enacting a definition of "conviction" in IIRIRA, meant to repeal the Federal First Offenders Act, which deals with first-time offenders charged with simple possession of a controlled substance. The Court in Lujan applied straightforward principles of statutory construction, examining the express language of the FFOA, and the language and legislative history of INA § 101(a)(48)(A), to find that Congress intended no such express or implied repeal. 222 F.3d at 743-48. As a result, aliens who receive (or could receive) first-offender treatment under the FFOA are not "convicted" under INA § 101(a)(48)(A).

1. The Express Language Of The FFOA.

First enacted in 1970, the FFOA created a statutory scheme under which first-time offenders charged with simple possession of drugs could avoid the consequences of a criminal conviction.3 After the offender pled or was found guilty, the court deferred entering a judgment, and imposed a sentence of probation. Once the offender completed the probation successfully, he was discharged and the proceedings against him dismissed. Thereafter, the disposition would "not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose."See 18 U.S.C. § 3607 (emphasis supplied).

The Lujan Court recognized that the FFOA represents a "broad Congressional effort to protect first-time drug possessors against the harsh consequences that follow from a drug conviction." 222 F.3d at 737. It also recognized that the law "applies to aliens and citizens alike." Id. Moreover, in the years following the enactment of the FFOA, courts held that the same treatment was required for offenders who qualified for prosecution under the FFOA but were in fact prosecuted under state statutes. See Garberding v. INS, 30 F.3d 1187, 1189 (9th Cir. 1994); Paredes-Urrestarazu v. INS, 36 F.3d 801, 811 (9th Cir. 1994). The Board adopted that position, which was based on consideration of the FFOA itself and the Equal Protection Clause, as a national rule in Matter of Manrique, 21 I. & N. Dec. 58 (BIA 1995).

Congress is presumed to have had this background in mind when it enacted § 101(a)(48)(A). Lorillard v. Pons, 434 U.S. 575, 580 (1978). Yet Congress did not expressly repeal the FFOA in § 101(A)(48)(A), did not mention the FFOA at all, and did not even use any general formula of preemption (such as "notwithstanding any other law") to introduce the provision. Lujan, 222 F.3d at 743, 747. In short, any argument that Congress expressly preempted the FFOA when it enacted § 101(a)(48)(A) can be rejected out of hand.

The Court of Appeals found that Congress also intended no implied repeal of the FFOA, either in whole or in part. 222 F.3d at 743-48. Recognizing that implied repeals are generally disfavored, the Court explained that repeals by implication can occur where the provisions in two acts are in irreconcilable conflict, or where the later act covers the whole subject of the earlier one and is clearly intended as a substitute. Id. at 743. In either event, Congress's intention to effect a repeal must be "clear and manifest." Id.

The Court found that the two provisions at issue here are not in irreconcilable conflict because the FFOA can continue to function as a "minor exception" to INA § 101(a)(48)(A) for first-time drug offenders, without "frustrat[ing] the broad purposes" of Congress's new definition of "conviction." 222 F.3dat 743. Cf. NLRB v. Kolkka, 170 F.3d 937 (9th Cir. 1999) (passage of Immigration Reform and Control Act's provisions that it is illegal to employ undocumented workers did not repeal by implication protection for undocumented workers in the National Labor Relations Board Act since both statutes could be given effect); Donaldson v. United States, 653 F.2d 414, 418 (9th Cir. 1981) (statutes imposing different obligations on the U.S. Navy could both be preserved, where the Navy's duties under one statute amounted to only a "small puncture in a broad shield" of non-liability under another statute). Because the FFOA and § 101(a)(48)(A) are capable of similar coexistence, the latter effects no implied repeal of the former. 222 F.3d at 744.

The Lujan Court also found that the second category of implied repeals did not apply at all, since it is clear that the new definition of "conviction" was never intended to cover the whole subject of when a disposition is or is not a "conviction" for immigration purposes. 222 F.3d at 746-47. As the INS conceded, what a court does with a conviction after it is entered -- reversing, vacating, or expunging it -- still makes a difference after the enactment of § 101(a)(48)(A). Id.

Finally, the Lujan Court recognized that Congress had no "clear and manifest intent" to repeal the FFOA, in whole or in part. 222 F.3d at 745-46. As the legislative history indicated, § 101(a)(48)(A) was probably meant to deal with a legalistic distinction, drawn in a prior Board decision,4 between two types of state "deferred adjudication" statutes. Id. at 741, 745. And even if that were not certainly Congress's purpose, the possibility that it might be is enough to make it impossible to find the requisite "clear and manifest intent" to support an implied repeal of the FFOA in § 101(a)(48)(A). Id. at 746.

In sum, the Lujan Court used all the traditional tools of statutory construction to reach the conclusion that Congress left the FFOA (and its state law counterparts) undisturbed when it enacted § 101(a)(48)(A). Therefore, a disposition under the FFOA (or its state law counterparts) does not amount to a "conviction" under the INA.5 Moreover, the Lujan Court's analysis makes clear that Congress left no "gap" or "ambiguity" in § 101(a)(48)(A), and therefore made no "implicit delegation" to the BIA to fill the gap as it sees fit under Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984). To the contrary, the Board should defer to the Lujan Court, since the statutory analysis the Court so painstakingly undertook is quintessentially a judicial, not an administrative, responsibility. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).

B. INA § 101(a)(48)(A) Does Not Override The Clear Principles Regarding Non-Convictions Established And Affirmed In More Than Fifty Years of Precedent Decisions By The Board.

A second way of understanding INA § 101(a)(48)(A) is to consider how unlikely it is that Congress meant to sweep aside fifty-plus years of Board precedent in enacting it. The Board's decisions recognized the basic principles that juvenile offenses, dispositions under FFOA and under state counterparts to the FFOA, and expunged non-drug convictions generally do not constitute "convictions" under the immigration laws.

1. Juvenile Delinquency Adjudications.

The Board has long held that being adjudicated a juvenile delinquent is not a conviction. See Matter of M-U-, 2 I. & N. Dec. 92 (BIA 1944); Matter of O-N-, 2 I. & N. Dec. 319 (BIA 1945, A.G. 1945); Matter of A-, 3 I. & N. Dec. 368 (BIA 1948); Matter of F-, 4 I. & N. Dec. 726 (BIA 1952); Matter of C-M-, 5 I. & N. Dec. 327, 329 (BIA 1953); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981). The Board has traditionally relied on the Federal Juvenile Delinquency Act (FJDA) to determine that juvenile delinquency is a status, and not a crime. 18 U.S.C. §§ 5031-5032.6 The Board has also held that a disposition under a state counterpart to the FJDA will also be given effect as a juvenile delinquency and not a conviction. See Matter of Devison-Charles, Int. Dec. 3435 (BIA 2000).

The Board recently examined whether its long-held view on juvenile delinquency adjudications had to be modified in light of INA § 101(a)(48)(A). In Devison, Int. Dec. 3435, the Board held that it did not. Examining a juvenile delinquency proceeding under a New York statute, the Board first held that the statute was a state counterpart to the FJDA and that the alien had received juvenile delinquency treatment for his offense. Devison at 8. Then, applying many of the same tools of statutory construction used by the Court in Lujan, the Board held that nothing in the express language of INA § 101(a)(48)(A), or the legislative history, indicated Congress's intent to repeal the FJDA, state counterparts to the FJDA, or the Board's long history of precedent that adjudication as a juvenile delinquent is not a "conviction" under the INA. Devison at 11.7 As a result of the Board's decision in Devison, the Board's longstanding precedent regarding juvenile delinquencies remains intact after the passage of INA § 101(a)(48)(A).

2. Dispositions Under The Federal First Offenders Act Or Analogous State Statutes.

Since the early 1940's, the Board has consistently held that immigration consequences cannot attach to an expunged conviction. See the cases leading up to and discussed in Matter of O-T-, 4 I. & N. Dec. 265, 266 (BIA 1951). This long-standing rule on expungements was modified only once, in 1959, when the Attorney General held that narcotics offenses would carry immigration consequences as "convictions" even if they had been expunged. Matter of A-F-, 8 I. & N. Dec. 429 (AG 1959). Then in 1970 Congress enacted the FFOA, so that first-time possessory drug offenses would not carry the harsh consequences of a criminal conviction. The BIA responded by creating an "exception" to its own "exception," bringing offenses dealt with under the FFOA or a state-law counterpart back within the general rule on expunged convictions. Matter of Werk, 16 I. & N. Dec. 234 (BIA 1977). In 1995, the Board went even further, holding that the expungement rule would extend to relief granted under state rehabilitative statutes even if they were not exact "counterparts" to the FFOA, so long as the alien would have been eligible for relief under the FFOA if he had been prosecuted under federal law. Matter of Manrique, 21 I. & N. Dec. 58 (BIA 1995) (adopting the Ninth Circuit's decision in Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994)).

In Manrique, the Board established three criteria that, if met, will protect an alien sentenced under a state law from the immigration consequences of a criminal conviction: (1) the alien must be guilty of only simple possession; (2) the alien cannot previously have received first offender treatment; and (3) the court must enter an order pursuant to a state rehabilitative statute under which the alien's criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation. Manrique, 21 I. & N. Dec. at 64.

As the Ninth Circuit recognized in Lujan, there is no reason to think that Congress meant to disturb the line of Board precedent stretching from Matter of O-T- to Manrique when it enacted INA § 101(a)(48)(A). Lujan, 222 F.3d at 742, n. 23.

3. Offenses Vacated Or Reversed On Appeal Or Otherwise Expunged Under State Rehabilitative Statutes.

The Board's specific rules regarding first-time simple possession drug offenses and juvenile delinquencies rest on a solid body of precedent regarding relief obtained after a conviction is initially entered. The Board has long recognized that no immigration consequences attach to criminal offenses vacated or reversed on direct appeal on the merits or upon collateral attack based on the violation of a fundamental statutory or constitutional right in the original criminal proceedings. See Lujan, 222 F.3d at 747, n. 30. See also Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (vacated convictions cannot be used to establish deportability); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970) (same). In addition, the Board has long respected the validity of expungements of criminal offenses under state rehabilitative laws. See Matter of Luviano, 21 I. & N. Dec. 235 (BIA 1996); Matter of Ibarra-Obando, 12 I. & N. Dec. 576 (BIA 1966, AG 1967); Matter of G-, 9 I.& N. Dec. 159 (BIA 1960, AG 1961), and cases cited therein.

The Board consistently held that an expunged offense could not trigger deportation because a conviction record no longer existed. Matter of G-, 9 I. & N. Dec. at 163. Outside the area of narcotics offenses, this rule has never been questioned or modified. Matter of Luviano, 21 I. & N. Dec. at 238. Thus, in Matter of G-, the respondent pled guilty to forgery but the California court later set aside his plea and dismissed his case pursuant to state law. 9 I. & N. Dec. at 159. Had the respondent's guilty plea not been expunged, it would have supported his deportation for a crime involving moral turpitude under the INA. Id. at 162. However, the Board held that "the State of California [had] wiped out the entire proceeding" and there was simply "no conviction." Id. at 164. Affirming the Board's decision, the Attorney General explicitly held that his decision in Matter of A-F- was limited to narcotics violations and did not nullify the expungement of other offenses. Id. at 167-68. The "validity of the long-standing rule of the Board" was not affected. Id. at 168.

Adhering to this rule, the Board in Matter of Ibarra-Obando, 12 I. & N. Dec. 576, 583 (BIA 1966, AG 1967), held that a petty theft offense expunged under California law was not a conviction for immigration purposes. Similarly, in Matter of Gutnick, 13 I. & N. Dec. 672, 673 (BIA 1971), the Board terminated deportation proceedings based on two crimes involving moral turpitude because both of the immigrant's offenses had been expunged and were simply "no longer convictions."

Even in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988) (discussed more fully below), the Board clearly affirmed its expungement rule:

We note that a conviction for a crime involving moral turpitude may not support an order of deportation if it has been expunged. We shall continue in this regard to follow the rule which was set forth by the Attorney General in Matter of G- and subsequently reaffirmed in Matter of Ibarra-Obando and Matter of Gutnick.

Ozkok, 19 I. & N. Dec. at 552 (internal citations omitted).

Thus, for over fifty years, the Board has recognized that criminal offenses that have been vacated, set aside, reversed, or expunged under state or federal law are not convictions and, consequently, cannot form the basis for deportation or other severe immigration consequences, and the Board continues to affirm this principle. See Luviano, 21 I. & N. Dec. 235 (plea of nolo contendere set aside under state law is not a conviction). The Board's rule has not simply been repeated from decision to decision -- it has sometimes been the subject of considerable debate within the agency. See Lujan, 222 F.3d at 739-40. As the Court recognized in Lujan, the INS's argument that Congress meant for INA § 101(a)(48)(A) to invalidate this substantial body of Board decisions, without even mentioning them, is "highly unpersuasive." Id. at 742.

3. Congress Enacted § 101(a)(48)(A) To Clarify When A Conviction Occurs In The Specific Context Of State Deferred Adjudication Statutes.

Congress enacted a statutory definition of "conviction" for immigration purposes to resolve confusion over when the INS may treat an alien as "convicted" under state deferred adjudication statutes. Lujan, 222 F.3d at 742. This problem had arisen because the INS did not know whether it could seek to deport an alien based a criminal offense for which judgment of guilt was deferred under a state rehabilitative law. Id. at 740. If the alien had not yet completed probation, his criminal charges would not have been dismissed, but neither would any formal judgment of guilt have been entered. Id. If the INS contended that such aliens were "convicted" for immigration purposes because a criminal court had made an initial finding of guilt, no conviction record existed to support the INS's charges. Id. Moreover, if the alien successfully completed probation, then, depending on the particular state's law, the proceedings would be dismissed or the initial finding of guilt would be expunged, set aside, or vacated. Id. at 735, n. 11.

For years, the Board struggled with this highly technical issue. See, e.g., Pino v. Landon, 349 U.S. 901 (1955) (per curiam); Matter of O-, 7 I. & N. Dec. 539 (BIA 1957); and Matter of L-R-, 8 I. & N. Dec. 269 (BIA 1959). Finally, in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), the Board decided to subdivide deferred adjudication statutes into two categories: (a) those in which a conviction could be entered automatically if the immigrant violated his probation; and (b) those that required further proceedings before the immigrant was actually convicted. Under the Ozkok rule, the INS could only initiate deportation proceedings against immigrants in category (a).

INA § 101(a)(48)(A) eliminates Ozkok's categories, and enables the INS to charge aliens with removability under a state deferred adjudication statute, before they are either convicted automatically for violating their probation or convicted after an additional hearing. Lujan, 222 F.3d at 742. But Congress's action pertained only to deferred adjudications; it did not address the issue of vacated, reversed, or expunged convictions. Id. at 742 n.23. Congress was aware of and did not modify the Board's extensive non-conviction jurisprudence under which aliens who were able to complete their probation and have their offenses reversed, vacated or expunged would not be considered "convicted." Id. The legislative history of § 101(a)(48)(A) reflects this. Where Congress intended to reverse or modify previous Board decisions, it explicitly did so. See H.R. Conf. Rep. No. 104-828, 224 (modifying Ozkok and reversing Matter of Castro, 19 I.&N. Dec. 692 (BIA 1988) and In re Esposito, Int. Dec. 3243 (BIA, 1995)).

1. The Board's Jurisprudence Clearly Distinguishes Between Expungements, Suspended Sentences, And Deferred Adjudications, And The Latter Two Categories Are Not Covered By Its Non-Conviction Precedents.

Throughout its non-conviction jurisprudence, the Board has distinguished expungements from deferred adjudications and suspended sentencing. The INS long sought to challenge the Board's non-conviction rules by citing federal cases concerning suspended sentences to support its argument that state expungements should be given no effect in deportation proceedings. But the Board rejected the INS's argument and found such cases inapposite: "We cannot consider these cases as the basis for such a far-reaching rule. Neither case involved an expungement. They were concerned with the issue as to whether a suspended sentence is a 'conviction.'" Matter of G-, 9 I. & N. Dec. at 164 n.2 (emphasis in original). See also Matter of Ibarra-Obando, 12 I. & N. Dec. at 580-83, 589-90 (INS's reliance on a federal circuit case unavailing because no expungement was involved).

The Board further distinguished between suspended sentencing and expungement in Matter of Gutnick, 13 I. & N. Dec. 672. After Gutnick pled guilty to two burglary offenses, the state court placed him on probation and suspended his sentencing. Id. at 672. The Board initially upheld Gutnick's deportation for conviction of two crimes involving moral turpitude, but later withdrew its order when Arizona enacted an expungement statute and Gutnick received a court order setting aside his convictions and dismissing his case. Id. at 673-74.

The Board has always recognized that an initial admission or finding of guilt under a deferred adjudication or suspended sentencing scheme can, under certain circumstances, constitute a "conviction" for immigration purposes. See Matter of O-, 7 I. & N. Dec. 539. However, once an offense is expunged, no "conviction" exists to support a deportation order. See Matter of O-T-, 4 I. & N. Dec. 265. Congress's definition of conviction in INA § 101(a)(48)(A) deals with the former issue, not the latter.

4. By Enacting INA § 101(a)(48)(A), Congress Sought To Resolve Only The Issue Of When A Conviction Occurs In The Specific Context Of Deferred Adjudication Statutes.

In defining the term "conviction" in IIRIRA, Congress sought only to resolve the issue with which the Board had grappled in Matter of O-, Matter of L-R-, and Ozkok. Congress signaled its intentions by using the exact language of the Board's decision in Ozkok, omitting only that portion of the Ozkok decision that attempted to subdivide deferred adjudication statutes into two further categories. Without that distinction, an alien can be deemed "convicted" and charged by the INS when his case is disposed of under a deferred adjudication statute, even if he has not yet violated probation and thereby subjected himself to a formal "conviction." Nothing in the statutory language or the Conference Report suggests that Congress sought to overrule the Board's longstanding rules that reversed, vacated, or expunged convictions are not convictions. Lujan, 222 F.3d at 742, n. 23.8 Although The Board in Roldan read INA § 101(a)(48)(A) as encompassing expunged or otherwise vacated convictions, the statute actually has a far more limited scope -- as shown by the statutory language Congress chose, the Congressional intent, and the Board's relevant precedents.

Congress defined "conviction" in INA § 101(a)(48)(A) as "a formal judgment of guilt . . . entered by a court." The two subsections that follow this general definition do not further define elements of all convictions, but simply determine when a conviction occurs in the specific context of suspended sentences or deferred adjudications. Id. The statute says nothing about vacated, reversed, or expunged convictions, because the Board in Ozkok -- and Congress in revising Ozkok -- were attempting to state what constituted a conviction ab initio. Expungement or other later relief is not an "exception" to the definition of conviction in INA § 101(a)(48)(A); it is an entirely different subject not encompassed or even addressed by that provision.

The Board recognized the limited scope of INA § 101(a)(48)(A) in Matter of Punu, Int. Dec. 3364 (BIA 1998), holding only that a deferred adjudication on an attempted murder charge and imposition of probation constituted a conviction under INA § 101(a)(48)(A)(i)-(ii). Mr. Punu had entered a plea of nolo contendere in a Texas court. Id. The judge deferred adjudication and placed Mr. Punu on probation for eight years. Id. Halfway through his probationary period, the INS charged him as deportable for having been convicted of an aggravated felony. The Board held that Mr. Punu's plea of nolo contendere and resulting probation under Texas's deferred adjudication statute constituted a conviction under INA § 101(a)(48)(A). As a result, the INS did not have to wait until Mr. Punu completed four more years of probation, or violated probation, to begin deportation proceedings against him.

Punu did not involve what the INS could do under the FFOA or state laws analogous to the FFOA, or what the INS could do with an expunged, reversed, or vacated conviction. Rather, the opinion dealt only with whether the INS could charge Mr. Punu as "convicted" under § 101(a)(48)(A). And, if all § 101(a)(48)(A) did was abolish Ozkok's categories, the Board's decision in Punu is probably correct. Punu does not justify a broader reading of § 101(a)(48)(A), such as the Board advanced in Roldan and the Court of Appeals rejected in Lujan.

5. Lujan Correctly Interpreted INA § 101(a)(48)(A) In Light of The Board's Extensive Jurisprudence On Non-Convictions And Should Be Applied Nationally In The Interests Of Uniformity.

The Court in Lujan presented a thorough and well-reasoned decision, reflecting the history of the Board's precedent regarding the FFOA, state counterparts to the FFOA, expunged convictions under other state rehabilitative statutes, and the particular problem presented by deferred adjudication statutes. The Court's reasoning correctly reflects the balance between Congress's respect for the Board's long-established jurisprudence on non-convictions, and Congress's desire to clarify the confusion resulting from the Board's decision in Ozkok. As Lujan demonstrates, Congress did not intend to wipe out over fifty years of doctrine regarding the Board's rules on non-convictions without evincing any intent -- let alone a "clear and manifest" intent -- to do so.

The Lujan decision, for now, applies only in the Ninth Circuit -- i.e., to immigrants in California, Arizona, Washington, Oregon, Idaho, and Montana. Those states are home to hundreds of thousands of immigrants. Having one definition of "conviction" in that jurisdiction, while the Board elsewhere continues to push for the more expansive definition it urged in Roldan, would result in great disparity of treatment and uncertainty. The Board should adopt Lujan nationally, not only because Lujan is right, but also because the uniform application of the immigration laws matters.

6. Roldan's Interpretation of INA § 101(a)(48)(A) Does Not Promote Uniformity.

Because it believed that Congress meant to enact a one-size-fits-all definition of "conviction" in INA § 101(a)(48)(A), the Board in Roldan assumed it could no longer give effect to state court judgments reversing, vacating, or expunging criminal convictions. Otherwise, the Board believed, it would be "forced to examine the vagaries of each state's statute." Roldan, Int. Dec. 3357 at 13. Yet the Board's approach does not promote uniformity for two reasons. First, the existence or absence of a conviction cannot be determined without reference to state criminal law, and the Board cannot ignore that the law in most states also allows initial pleas or findings of guilt to be vacated, erased, or expunged. Second, greater disparities result from the Board's attempt to draw a line between its expansive definition of "convictions" (including expungements) on the one hand, and vacated or reversed convictions, on the other.

State criminal law largely defines the existence or absence of a conviction. The application of INA § 101(a)(48)(A) is not subject to the "vagaries of state laws" because it recognizes the validity of state expungement procedures. Rather, uniformity interests are better served by recognizing that the Board's extensive jurisprudence gives equal weight to state laws that vacate or reverse, and to those that expunge, a conviction.9

In Roldan, the Board sought to distinguish offenses expunged under state rehabilitative laws from convictions vacated on direct appeal on the merits or due to the violation of a fundamental statutory or constitutional right. Roldan at 15. In practice, such a distinction is one of form, not substance. If an expungement will not protect aliens from deportation, they will seek the same relief by different avenues. Both the Board and the Seventh Circuit recently recognized this problem.

In Matter of Rodriguez-Ruiz, Int. Dec. 3436 (BIA 2000), the respondent pled guilty to sexual abuse and was sentenced to one year of probation. After the INS charged him with removability as an aggravated felon, Mr. Rodriguez returned to state court where the judge vacated his conviction and sentence pursuant to a provision of the New York Criminal Procedure Law. The INS argued that under Roldan, Mr. Rodriguez remained "convicted" because his guilty plea was vacated to avoid removal and not on the merits of his case. The Board declined to Ago behind the state court judgment Y [and] instead accord[ed] full faith and credit to this state court judgment." Because the state court order was not made pursuant to a rehabilitative statute, the Board deemed Roldan not controlling and terminated the removal proceedings.

The Seventh Circuit came to a similar conclusion in Sandoval v. INS, No. 99-3158, 2001 U.S. App. LEXIS 2059, at *1 (7th Cir. Feb. 12, 2001), a decision questioning the continuing validity of Roldan after the Ninth Circuit's decision in Lujan. In Sandoval, the INS charged the respondent as removable for having pled guilty to a controlled substances offense. Id. at *2. Mr. Sandoval promptly filed a post-conviction motion under the Illinois Post-Conviction Act to vacate his guilty plea because he had relied on the erroneous advice of counsel that his plea would have no immigration consequences. Id. The court entered a modified order of first-offender probation under state law. Id. at *3-4. The Immigration Judge found that despite the modified sentence, Mr. Sandoval remained "convicted" for immigration purposes. Id. at *5. The Board affirmed the Immigration Judge's decision in a per curiam opinion. Id. at *6. The Seventh Circuit held that Mr. Sandoval's motion under the Illinois Post-Conviction Act constituted a collateral attack on his conviction and that the state court's modified sentenced effectively vacated the conviction. Id. at *12-13, 19-20. Accordingly, the court remanded the case to the Board to terminate the deportation proceedings against Mr. Sandoval. Id. at *20

The INS alleged that the state court's judgment was entered solely to avoid the immigration consequences of Mr. Sandoval's conviction. The Seventh Circuit firmly rejected that argument:

[The Service's] allegation is unfounded. The judge's modification was in response to Sandoval's properly filed motion stating a cognizable claim of ineffective assistance of counsel. That Sandoval may have filed his motion in response to the threat of deportation is irrelevant. Further, even if the state court judge's decision to modify Sandoval's sentence was motivated by the consequences of the federal immigration law, that fact would not render the modification ineffective for immigration purposes. See Matter of Kaneda, 16 I.&N. Dec. 677 (BIA 1979); Matter of O'Sullivan, 10 I.&N. Dec. 320 (BIA 1963).

Id. at *19.

In sum, the Board is mistaken in thinking that its expansive interpretation of INA § 101(a)(48)(A) promotes uniformity by refusing to give effect to the erasure of criminal convictions under state law. As the Seventh Circuit and the Board itself have recognized, uniform treatment does not result from the wholesale jettisoning of one set of remedies when other, unquestionably valid alternatives remain intact.

III. CONCLUSION

For all of the reasons stated above, Lujan correctly found that neither the express language of the FFOA, nor court and Board decisions regarding state counterparts to the FFOA, nor the Board's precedents on reversed, vacated, and expunged convictions generally, were repealed by INA § 101(a)(48)(A). Put another way, while Punu is probably a fair reading of Congress's actual purpose in enacting § 101(a)(48)(A), Roldan represents an unduly expansive view, and Roldan's overruling of Manrique is mistaken. The Board will foster nationwide uniformity in the application of our immigration laws, by adopting Lujan as its own. Specifically in this case, the INS should cease deportation proceedings against Mr. Madriz, allowing him to adjust his status to that of a lawful permanent resident through his United States citizen mother, and remain in the United States with his family.



Respectfully submitted,




Lisa J. Palumbo
On behalf of AILA/AILF

American Immigration Lawyers Association
American Immigration Law Foundation
1400 Eye Street, NW. Suite 1200
Washington, D.C. 20005

Lisa J. Palumbo
Diana C. White
Cleo J. Kung, Law Student
Legal Assistance Foundation
of Metropolitan Chicago
111 W. Jackson Blvd., 3rd Floor
Chicago, Illinois 60604





CERTIFICATE OF SERVICE

I, Lisa J. Palumbo, hereby certify that I served a copy of this Amicus Brief on the following parties:

Barry O'Mellin
Chief Appellate Counsel
Immigration and Naturalization Service
5113 Leesburg Pike, Suite 200
Falls Church, VA 22041

Federation of American Immigration Reform
1666 Connecticut Ave., N.W., Suite 400
Washington, DC 20009
Benjamin D. Somers
Assistant District Counsel
Immigration and Naturalization Service
P.O. Box 670049
Houston, TX 77267-0049
Robert Kahn
6009 Richmond Ave., Suite 102
Houston, TX 77057

by Federal Express Mail this 16th day of February, 2001.





____________________________
1 § 101(a)(48)(A) provides:

The 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 entered 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 liberty to be imposed.

2 Most recently, in Matter of Perez, Int. Dec. 3432 (BIA 2000), the Board adopted two circuits' decisions interpreting the "burglary offense" language found in the INA's "aggravated felony" provisions. See Lopez-Elias v. Reno, 209 F.3d 788, 792 (5th Cir. 2000) (defining a "burglary offense" as having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or other structure with intent to commit a crime); Solorzano-Patlan v. INS, 207 F.3d 869, 874 (7th Cir. 2000) (same). See also Matter of L-V-C-, Int. Dec. 3382 (BIA 1999) (Board adopted circuit court's decision after the court reversed a Board decision regarding crime of moral turpitude). In both situations, the Board stressed the need for a uniform application of the immigration laws as the reason for adopting the appellate courts' decisions.

3 The relevant language of the FFOA states:

(a) . . . If a person found guilty of [simple possession of a controlled substance]

(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. . . 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. . . .

(b). . . A disposition under subsection (a) . . . shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose.

18 U.S.C. ' 3607.

4 Matter of Ozkok, 19 I. & N. Dec. 539, 551-52 (1959), discussed further in Section II. C and D below.

5 Whether the INS can deport a person who has neither completed nor violated his FFOA (or FFOA-like) probation is a question the Lujan Court left open, because it was not presented in the cases before it. 222 F.3d at 746, n.28. It is also not presented in Mr. Madriz's case.

6 Under the FJDA, a juvenile is a person under 18 years of age, and a "juvenile delinquency" is any federal crime committed by a juvenile. A person 18 to 21 years old can be charged under the FJDA for an offense committed before he turned 18. 18 U.S.C. § 5031.

7 The Board distinguished its holding in Devison from its holdings in Roldan and Matter of Punu, Int. Dec. 3364 (BIA 1998), stating that Congress intended to eliminate adult expungements when it enacted INA ' 101(a)(48)(A). While it recognized that the Lujan decision reversed "at least certain portions of our decision" in Roldan, the Board found that Roldan did not control the outcome in Devision and that Lujan therefore had no bearing on the decision in Devison either. Devison at 4, n.7.

8 In Ozkok, the Board clearly stated that its purpose was to define a conviction ab initio and that its decision did not affect the validity of its non-conviction jurisprudence. The Board overruled seven cases in Ozkok, all of which concerned deferred adjudication statutes, not expunged, vacated, or reversed convictions. Specifically, the Board in Ozkok overruled Matter of Garcia, 19 I. & N. Dec. 270 (BIA 1985); Matter of Zangwill, 18 I. & N. Dec. 22 (BIA 1981); Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980); Matter of Robinson, 16 I. & N. Dec. 762 (BIA 1979); Matter of Varagianis, 16 I. & N. Dec. 48 (BIA 1976); and Matter of Pikkarainen, 10 I. & N. Dec. 401 (BIA 1963). The Board did not overrule its holdings in Matter of Sirhan, 13 I.& N. Dec. 592 (BIA 1970); Matter of O=Sullivan, 10 I. & N. Dec. 320 (BIA 1963); Matter of Ibarra-Obando,12 I. & N. Dec. 576 (BIA 1966, AG 1967); or Matter of G-, 9 I.& N. Dec. 159 (BIA 1960, AG 1961), all of which establish that reversed, vacated, or expunged criminal convictions are not convictions for immigration purposes.

9 Over half of the States have laws or regulations which purge conviction information by destroying the criminal records or returning them to the individual charged. U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics, Compendium of State Privacy and Security Legislation: 1999 Overview (July 2000) 16. Thirty states have laws sealing conviction information. Id. Where a conviction record has been purged, thirty-two states grant individuals the right to indicate the absence of a criminal history in response to public or private inquiries. Id.