9th Circuit Holds the BIA Erred in Finding Expunged Conviction is a Bar to Relief

The 9th Circuit ruling in Ramirez-Altamirano v Mukasey, is a welcome expansion of its earlier finding that State court defendants should not be treated more harshly than Federal court defendants when considering whether their rehabilitation from a criminal conviction could serve to nullify the immigration consequences of their conviction.

Cancellation of Removal is a form of relief available to aliens who would otherwise be subject to removal from the country, who meet the following criteria:

1. The alien must have been physically present in the US for a continuous period of not less than 10 years immediately preceding the date of his/her application for Cancellation of Removal;

2. The alien must have been a person of good moral character;

3. With certain limited exceptions, the alien must not have been convicted of a crime that would render him/her inadmissible under 8 USC Section 1182(a)(2) or deportable under 8 USC Section 1227(1)(2)-(3); and

4. The alien must establish that removal would result in exceptional and extremely unusal hardship to the alien’s immediate US citizen or lawful permanent resident relatives.

In this case the alien had been convicted of misdemeanor posession of drug paraphernalia under California state law. He was denied cancellation of removal based upon his failure to meet the 3rd criteria.  The Immigration Judge found that notwithstanding his rehabilitation pursuant to the relevant California statute and the fact that the charges were ultimately dismissed as a part of such rehabilitation, the  conviction for possession of drug paraphernalia retained its immigration consequences.   The BIA upheld this ruling pursuant to its general stance that “for immigration purposes a person continues to stand convicted of an offense notwithstanding a later expungement under a state’s rehabilitative statute.” Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002).

On appeal, the 9th Circuit overturned this ruling.  The court referred to the fact that under the Federal First Offender Act (“FFOA”) defendants convicted of a first time offense in Federal Court could still be eligible for cancellation of removal, because that statute in effect defers a defendant’s conviction and allows for dismissal of the proceedings without entering a judgment of conviction where the defendant has succesfully completed a term of probation .  The court cited to its previous ruling that “the Equal Protection Clause requires a a parallel exception for similarly siuated defendants prosecuted in state court. Lujan Armendariz v. INS, 222 F.3d. 728 (9th Cir. 2000).  In other words, the test for whether a defendant’s rehabilitation under State law could serve to nullify the immigration consequences of the conviction was whether he/she would have been eligible for relief under the FFOA but for the fact that he/she had been prosecuted in State rather than Federal court.

The 9th Circuit went on to reject the IJ’s finding that Lujan was distinguishable from this case because Lujan involved a conviction for drug posession whereas in the instant case Ramirez stood convicted of possessing drug paraphernalia, finding “no rational basis for treating individuals found guilty of posessing drug paraphernalia more harshly than those found guilty of possessing the actual drugs themselves.” Ramirez-Altamirano at 1231.

Thus,  based upon the rationale of Lujan, the Court found thatRamirez-Altamirano’s conviction could not serve as a bar to cancellation of removal and remanded the case for further consideration.

It remains to be seen whether this ruling will be followed in other circuits with similar rehabilitation statutes, and for which offences.

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