834 F.3d 1104
9th Cir.2016Background
- Antonio Reyes, a Mexican national who entered the U.S. without inspection, pleaded nolo contendere in California in 2008 to violating Cal. Health & Safety Code § 11550(a) (under the influence of methamphetamine).
- The California court suspended imposition of sentence and placed Reyes on 36 months’ formal probation with conditions (search conditions, drug/alcohol testing, registration as a narcotics offender, restrictions on association, weapons prohibition, abstention from alcohol-related venues) and fined him $289.38 (including restitution).
- After successful completion of probation the state court set aside the plea, dismissed the case, and terminated probation under California law (expungement-like relief under Cal. Penal Code § 1210.1).
- DHS charged Reyes as removable and an immigration judge found him ineligible for adjustment of status and cancellation of removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because of his drug-related conviction.
- The Ninth Circuit addressed whether a state conviction that was later set aside/dismissed under state law nevertheless qualifies as a “conviction” under 8 U.S.C. § 1101(a)(48) when (1) the alien pleaded guilty or nolo contendere and (2) the judge ordered “some form of punishment, penalty, or restraint on the alien’s liberty.”
Issues
| Issue | Plaintiff's Argument (Reyes) | Defendant's Argument (Lynch) | Held |
|---|---|---|---|
| Whether a state conviction expunged/dismissed under state law counts as a federal "conviction" for immigration purposes | Reyes: The state court set-aside/dismissal removes the conviction; thus he is not convicted for immigration purposes | Lynch: Federal immigration law defines "conviction" independently; expunged state convictions can still be convictions under federal law | Held: Expunged state convictions still count as convictions for immigration purposes under §1101(a)(48) |
| Whether probation here constituted "some form of punishment, penalty, or restraint on the alien’s liberty" under §1101(a)(48) | Reyes: Probation was rehabilitative and, having been satisfied and terminated, did not impose punitive restraint required to constitute a conviction | Lynch: The probation terms (fine, restrictions on association, searches, testing, firearms ban, reporting) imposed penalties/restraints satisfying §1101(a)(48) | Held: The probation terms and fine imposed sufficient punishment/restraint; therefore the statutory second condition is met |
Key Cases Cited
- Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (addressed treatment of expunged state convictions and assumed, without deciding, that expunged convictions may be convictions for immigration purposes)
- Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010) (held that a stayed, unpaid fine with no probation or restraints did not constitute a conviction under §1101(a)(48))
- Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. 2003) (held expunged state convictions can qualify as convictions for immigration purposes)
- Wellington v. Holder, 623 F.3d 115 (2d Cir. 2010) (same)
- Resendiz-Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262 (11th Cir. 2004) (same)
- Vasquez-Velezmoro v. INS, 281 F.3d 693 (8th Cir. 2002) (same)
- Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000) (same)
- Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988) (probation can be criminal punishment)
- Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) (reporting to probation officer and community supervision constitute punishment/restraint)