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
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.
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
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
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
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
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.
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
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
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
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
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.
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.
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.
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:
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
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
(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.