Christopher John Dillingham v. Immigration and Naturalization Service

lаwyer had competent, been minimally he prejudice means actual prejudice in an trial,47 would have tried the case on the “shoot- actual opposed as imaginary prej- theory out” instead of Phillips the alibi in an udice imaginary trial. majority insisted on. Then the assumes people The of California did not sen- hypothetical trial that never tence Phillips to death he had a happened Phillips’ girlfriend pros- and the lawyer. bad They him to sentenced death given ecutor would have exactly the same his crimes on December I

testimony about her deal. The idea is that dissent. in that trial hypothetical Phillips would have been prejudiced imagi- because the

nary perjury would prevented have him

from impeaching girlfriend’s testimony,

and that would have weakened his never-

presented “shoot-out defense” and his de-

fense that did he not kill the men to rob them, only but money stole their inciden- Christopher DILLINGHAM, John tally, as afterthought, when he was Petitioner, stealing their Chutzpah identification. in- deed! IMMIGRATION AND

Phillips’ prejudice cumulative thеory has SERVICE, NATURALIZATION a fatal flaw in addition to failure pass its Respondent. straight face test: prejudice only happened in an imaginary case which No. 97-71038. Phillips would have supposedly presented United States Court of Appeals, defense,” “shoot-out actually the case Ninth Circuit. tried. The prejudice claimed hap- never pened, because the case presenting a Argued and Submitted Feb. “shoot-out defense” never happened. Sept. Filed Thus the for which case the “I’m expecting testimony consideration” supposedly was

prejudicial perjurious never was tried.

Materiality prejudice must occur in tried,

the case that was in an imagi-

nary case.

Who what knows might witnesses have

testified how they might have been

impeached Phillips if had told the truth?

A habeas petition has to be based on con-

stitutional occurred, error the trial that

not a trial that prevented by the de-

fendant’s perjury. own requirement See, Ahrahamson, e.g., Brecht v. 507 U.S. ("Even 80 L.Ed.2d 674 if a de- 619, 637, 113 S.Ct. particular fendant shows that errors of coun- (1993) (habeas claim based on trial error sel were unreasonable ... the defendant must must prejudice”); establish "actual Strickland show that actually had an adverse effect v. Washington, defense.”). 104 S.Ct. on the Davis,

Paul A. Munger, Tolies & Olson LLP, Angelеs, California, Jimmy Los W. Go, Laster, Portland, & Oregon, Go for the petitioner. Hall, Department Justice,

Matthew R. of DC, Washington, respondent. for the FLETCHER, Before: B. FERNANDEZ, PAEZ, Circuit Judges.

Opinion FLETCHER; by Judge B. by Judge Dissent FERNANDEZ. FLETCHER, BETTY B. Circuit Judge: case, In this we consider whether right equal alien’s protection is vio if, in lated proceed course of removal ings, Immigration and Naturalization (“INS”) Service refuses to recognize the effects of a expungement1 British statute Throughout opinion, statutes, we use the term rehabilitative as well as the British "expungement” generally to refer to the effect case). statute at issue in this Such distinc of prior a rehabilitative statute on a convic- tions are irrelevant under both Ninth Circuit whether, regardless procedural as a tion— Lujan-Armendariz, and BIA case law. See matter, the statute allows for a deferral of the (9th Cir.2000); 222 F.3d 735-36 Gar itself, conviction judgment such that no INS, berding (9th v. Cir. (as FFOA), ever entered judg- under the or a 1994); Manrique, Matter Int. Dec. 3250 ment of conviction is entered but lаter re- (BIA 1995). (as moved from the books under various state Act 1974. Under Offenders offense drug possession simple aon Act, a is treated as of the conviction terms first of federal qualified for have would with his complies if an “spent” offender in the had it occurred treatment fender of a subse- and is not convicted case, sentence in this petitioner The States. United In years. within five such quent offense year- Dillingham, is 37 Christopher John cases, offend- requires that the the statute Britain. He and citizen Great native old in law as a purposes treated “for all er be July States the United entered committed or been who has not person visa, and, his visitor’s overstaying after for or convict- prosecuted with or charged legal adjustment of status for applied offense,” except ed of or sentenced for May 1993. resident permanent convic- resulting from the any penalty (“BIA”) Appeals Immigration Board five-year beyond pe- tion that extends ineligible Dillingham ruled unaffected, of the evidence riod is prior of a convic adjustment in a subse- may be introduced conviction possession simple Britain Great tion proceeding.2 criminal quent cocaine, in spite marijuana and expunged had been the conviction fact that years after seven September statute to a British pursuant (and rehabilitation years after conviction two drug his that, conclude We for first-time offenders. rehabilitation), Dillingham married his in Gar holdings in accordance with our Although wife. his conviction U.S.-citizen (9th Cir. berding v. F.3d 1187 him to the United inadmissible3 rendered (co- Paredes-Urrestarazu 1994), 212(a)(2)(A)(i)(II) § INA States Lujan-Ar (9th Cir.1994), 1182(a)(2)(A)(i)(II)),4 F.3d 801 U.S.C. dified at 8 INS, 222 F.3d 728 Cir. mendariz country to enter permitted he was Dilling- 2000), ‍‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​​​‌​‌​‌‌​​‌‌​​​‌‌​‌‌‌‍violated the BIA’s decision nonimmigrant July 1992 on six-month by refusing equal protection to right visa, provi- ham’s waiver pursuant to the visitor expungement. foreign 1182(d)(3)(A). the recognize to § After of 8 U.S.C. sions the decision Accordingly, we reverse stay expired, had period of authorized his discretionary deter for a and remand of sta- adjustment BIA applied Dillingham for Dillingham’s adjustment as to May mination resident on legal permanent to tus relative status. immediate pursuant to an wife under 8 filed his petition visa I. director INS district § 1255. The U.S.C. Portland, application his Oregon, denied 1984 to guilty April Dillingham pled grounds on the September on pos- Britain for charges Great criminal of Offend- Rehabilitation cocaine, that the British a 50 marijuana paying and sessing the Fed- counterpart a Act was not ers convicted a first-time offender fine. As (“FFOA”), Act and offense, Dill- First Offenders eral minor controlled substance a therefore drug conviction prior that his expunged was later conviction ingham’s him rendered inadmissible. Rehabilitation to Great Britain’s pursuant of, provision, alien "conviсted asserts, an 4.Under does not Dillingham the INS and committed, having or who who admits or any been involved in dispute, that he has not the committing constitute which admits acts drug use activity free ol and been criminal (or a a ... violation elements of essential time. since that violate) any law or attempt to conspiracy or country relating foreign regulation of ... a with replaced 'excludable" the term IIRIRA is inadmissible." ... substance a controlled 308(d). § IIRIRA “inadmissible.” 1182(a)(2)(A)(i)(II). § 8 U.S.C. 16, 1993, On the permanent November INS issued date for residence in this Cause, charging Order Show him country.” He also stated that he would (1) deportability with as an alien who had have “no hesitation” in approving Dilling- remained in beyond States the United application permanent ham’s for residence period stay; of his authorized heartbeat,” do “in would so a but for excludable at the entry time of his due to a his Dillingham conclusion that was statu- prior offense, pursu- controlled substance torily ineligible discretionary for relief. 1182(a). ant to 8 hearing U.S.C. At his Hence, Dillingham’s application for ad- (“IJ”) Immigration before an Judge on justment of status was not denied as a 25, 1994, Dillingham October admitted the discretion, matter of but because of per- charges against factual basis of the him statutory ceived ineligibility. except conviction, for the fact his banc) appeal, On BIA (sitting en deportability conceded his overstaying for reversed the IJ’s denial of Dillingham’s continuance, Following his visa. Dilling- application voluntary departure, ham reasserted con- eligibility adjust- his cluding that Dillingham ment of status to that of a had established legal permanent resident, that he had been a ground person good on the expunged that his moral longer precluded years conviction no character for five applica- prior to his time, Dillinghаm However, tion. This application.7 cited the affirmed Board BIA’s decision in Manrique, Int. Dec. 3250 the IJ’s decision regarding adjustment of (BIA 1995),in which the Board established expressly status and limited expunge- its policy of treating aliens who had been recognition ment policy “meeting eases simple possession convicted of and rehabil- four-part the strict test outlined” Man- itated state’s expungement stat- rique. Specifically, the Board analogized ute equivalently to those who had been of Dillingham’s prior convicted and rehabilitated under drug offense to a foreign pardon and de- FFOA.5 recognize clined to it for purposes. Accordingly,

On June the Board ruled dis- IJ Dillingham’s missed Manrique appeal did not with respect extend to reha- adjustment bilitation the denial statutes and denied applica- of his status. adjustment tion for One BIA of status. He also member dissented on the Dillingham ordered dеported6 grounds and denied that the Board’s decision conflict- voluntary departure. The IJ found Dill- ed with its earlier cases and violated Dill- ingham to be “deserving of ingham’s favorable dis- process due right equal pro- cretion” “undoubtedly a worthy eandi- tection.

5.The Manrique BIA’s decision in pursuant followed order to a state rehabilitative statute holding our Garberding and constituted a deferring either dismissing or the criminal reversal of policy recogniz- its former of not proceedings. ing, for purposes, the effects of state rehabilitation laws that were not the Interestingly, 6. Dillingham the IJ did not find counterparts exact of the FFOA. Under Man- deportable ground on the that he was an alien rique, the BIA four-part a created test for excludable at entry, ground but rather on determining expungement pursuant when an that he had overstayed his visa. to a state rehabilitative statute should be rec- (1) ognized: offender; (2) the alien ais first appeal The Service did finding not the IJ’s pled the alien guilty has been or found aof Dillingham deportable due to his offense; simple possession the alien has inadmissibility entry. at time of not been accorded offender first treatment law; (4) court has entered an (9th Cir.2000); INS, 847, 849 206 F.3d review of for petitions now Dillingham INS, at Lujan-Armendariz court. in this BIA’s decision Cir.2000). Thus, have authori we. II. issue in this case— ty to review the central namely, Dillingham whether still stands matter, consider we must initial As an “having committed a [con convicted of court, have whether, appellate as following the offense” substance] trolled Dillingham’s petition. review jurisdiction to simple possession of his 1984 deportation proceed- initiated The INS Britain. offense Great BIA and the ings on November on deportation final order of a entered contending that we lack In addition to a timely filed Dillingham August Dillingham’s expunged jurisdiction due Septem- court on review this petition for conviction, the eleventh hour the Service jurisdiction is therefore 1997. Our ber that we are divested argument raised the transitional rules by governed the so-called admit- jurisdiction Dillingham 309(c)(4) (codified at § 8 U.S.C. IIRIRA offi- facts of his conviction to INS ted the 1252). § the Service contends Specifically, cers. (codified 212(a)(2)(A)(i) § INA that under pro transitional rules Notably, the 1182(a)(2)(A)(i)),9 apart § even at 8 U.S.C. “discretionary deci a appeals from hibit conviction, an alien who admits his from Board, adjustment of such as sion” substance committed controlled having 309(c)(4)(E). status, § to IIRIRA pursuant statutorily inadmissible rendered offense is ad However, for Dillingham’s application adjustment of status. ineligible denied as was not justment of status discretion, because of statu but matter terms of that under We believe Hence, Dillingham does ineligibility. tory 212(a)(2)(A)(i), however, the fact § discretiоnary denial the Board’s appeal is prior offense Dillingham “admitted” status, adjustment application of his than the convic- greater consequence of no that he BIA’s determination rather the but IIR- language of Tellingly, itself. tion such discre statutorily ineligible to seek 309(c)(4)(G) for aliens § is identical IRA tionary relief. as for deemed inadmissible Thus, the inter- deportable. deemed those transitional

Pursuant 212(a)(2)(A)(i) § and IIR- INA rules, jurisdiction pretation deprived we are 309(c)(4)(G) byus pressed upon IRA deportation for final orders of review Lujan- require overturning would sub Service of certain controlled aliens convicted every case in Armendariz as well as other However, we held as stance offenses.8 the transitional we have held under which Magana-Pizano v. guilty to first- plead that aliens who (9th rules Cir.1999), jurisdiction to de we have may nonetheless offenses possession relevant to our time thе facts termine whether rehabilitation themselves of domestic Aragon-Ayon also avail jurisdiction exist. See committed, who admits 309(c)(4)(G) having or admits "there shall § reads: IIRIRA the essential committing an alien which constitute appeal permitted in the case of acts no by (or deportable conspiracy or reason who is inadmissible of of ... a violation elements having violate) a criminal offense-cov- regulation of committed of attempt law or to or 212(a)(2)....” ered in section [INA] country relating to a controlled ... a ... is inadmissible.” substance reads, 1182(a)(2)(A)(i)(II) per- § U.S.C. 9. 8 of, who part: "convicted or an alien tinent 1004 expunge

statutes to their convictions. Put ambiguous statutory of provisions that way, pursuant posi- by another to the were intended Congress INS’s be left to tion, agency’s cases, In every pled guilty time an alien to a discretion. such deference is owed to the simple possession charge, whether in the BIA’s reasonable abroad, interpretations provisions, long he so U.S. or would be unable to avail they as do not contravene other himself of the Federal First Offender Act indications (or congressional Aguirre- intent. v. equivalents), INS appellate state law 415, Aguirre, 1439, 526 U.S. 119 jurisdiction S.Ct. 143 panels stripped would be (1999); L.Ed.2d 590 Chevron USA Inc. v. petition.10 review his Council, Natural Resources 467 Defense reject position We conclude that 837, 2778, U.S. 104 S.Ct. 81 L.Ed.2d 694 jurisdiction we have to review the central (1984). namely, issue this case: whether Dill- ingham statutorily ineligible for discre IV. tionary relief because he still stands con “It is well established that all prior drug victed of a offense. See also individuals in the United States —citizens Doe, 592, 603, Webster v. 486 U.S. 108 protected by and aliens alike—are the Due 2047, S.Ct. 100 L.Ed.2d 632 (holding Process Clause of the Constitution.” Gar that absent a clear congres statement of berding, 30 (citing 1190 Mathews intent, judicial sional on limitations review Diaz, 67, 1883, v. 426 U.S. 96 S.Ct. should not be construed to prevent review (1976)). L.Ed.2d 478 equally “It is well questions); substantial constitutional cf. established the Due Process Clause — -, Cyr, INS St. U.S. 121 S.Ct. incorporates guarantees equal pro 2271, (2001). Robison, (citing tection.” Id. Johnson v. 415 U.S. 364 n. 94 S.Ct.

III. (1974)). L.Ed.2d 389 The Supreme Court In cases where the Board has defines right the constitutional “equal power exercised its to conduct a de novo protection of the “personal laws” as a decision, only review the IJ’s review right,” Pena, Adarand Constructors Inc. v. ‍‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​​​‌​‌​‌‌​​‌‌​​​‌‌​‌‌‌‍Yepes-Prado the decision of the BIA. 200, 227, 515 U.S. 115 S.Ct. Cir.1993). (1995); Shelley L.Ed.2d 158 v. Kraem cf. findings er, BIA’s factual are reviewed under 68 S.Ct. 92 L.Ed. (1948) (“The the substantial evidence standard. Pa rights by created redes-Urrestarazu, 36 F.3d at 807. The first section of the Fourteenth Amendment BIA’s regarding questions are, conclusions terms, guaranteed its to the indi novo, id., law are except reviewed de rights vidual. The person established arе the extent that involve interpretations al rights.”). special We take note of the support interpretation, of its novel deportation his final order of under IIRIRA 309(c)(4)(G). However, Service cites the case of Ruckbi v. clearly Ruckbi is (1st Cir.1998), which, present F.3d 18 like inapposite Dillingham's petition only —not case, involved an alien who was married to a because it involved state crimes committed on soil, sought (and adjustment citizen and of status impor- United States but also more being deported by after tantly) ordered INS because it involved an admission of overstaying non-immigrant multiple visa. The turpitude, crimes of moral for which Ruckbi court held that because the expungement alien ad- there is comparable no statute committing Hence, mitted the elements of several Federal First Offender Act. involving larceny forgery crimes and in Mas- Ruckbi court peti- was correct to dismiss thе sachusetts, stripped jurisdiction it was over jurisdiction. tion in that case for lack of

1005 (“FFOA”). FFOA, applies which ex deci- previous our we have based fact that drug offenders who clusively to first-time upon progeny its Garberding sions only simple possession, serves guilty are unamended right, protection equal (after the suc expunge such convictions considerations ancillary constitutional peri completion probationary of a cessful Furthermore, we sovereignty. as state od) intended to lessen the harsh and was person- in its why right reason find no convictions, drug consequences of certain Dillingham not extend al nature should including deportation pro their effects on previ- in our to the claimants just as it did 222 Lujan-Armendariz, ceedings. See ous cases. FFOA, legal no at 735. F.3d Under analy equal protection Under may imposed following consequences involving fun sis, “a classificаtion neither of the defendant’s expungement as a result along proceeding rights nor damental conviction. 18 U.S.C. 3607. former strong pre lines is accorded suspect rejected on Garberding, Doe, 509 validity.” Heller v. sumption policy the BIA’s equal protection grounds 2637, 319, 125 S.Ct. 113 only expungements under exact state (1993). review such We 257 L.Ed.2d recog could be counterparts to the FFOA whether to determine classifications proceedings. We held deportation nized by a rational basis. See supported are with the policy was that this inconsistent 319-320, Further 2637. at 113 id. S.Ct. guarantee, equal protection Constitution’s in immi more, authority federal because rational basis for there was “no because federal classi plenary, matters is gration guilty found treating persons two groups differentiating between fications differently on the conduct based identical scrutiny.” subject “relaxed aliens arе statutes of the rehabilitation breadth Mauclet, 1, 7 n. Nyquist v. states, persons when both respective their (1977); Gar 53 L.Ed.2d S.Ct. under their own eligible for relief were classifica F.3d at 1190. Such berding, 30 had have been state’s law both would ir “wholly held valid unless tions will be counterpart of law an exact the state been Mathews, 83, 96 426 U.S. at rational.” Lujan-Armendariz, Act.” the federal 1190; 1883; Garberding, 30 F.3d S.Ct. Garberding). (explicating at 738 F.3d McMahon, Sudomir argued its differential The INS had (9th Cir.1985). apply these es We obtaining expunge persons treatment our discussion be principles in tablished counterparts of under exact ments low. obtaining expunge persons FFOA rational was ments under broader statutes A. goals and results” “of the differing rule, the BIA general compared as As under the FFOA that obtain of con expungements Garberd recognize does not more lenient state statutes. rejected this as for federal im ing, 30 F.3d at We trolled substance offenses A-F, treatment basis for differential purposes. See Matter a rational migration (1959). However, persons seeking similarly between situated I N Dec. 429 & of whether exception deportation, regardless a narrow to avoid Congress carved out with con BIA’s decision consistent when en simple possession offenses id.11 The Con- objectives. gressional Act See First the Federal Offender acted particular Furthermore, distinguish way between no our was in decision sovereignty thereby frustrating statutes upon the BIA could not the idea based concerned with the differential could not receive the benefits of the state stitution is statutes; persons treatment of not immigration rehabilitation law for federal justified government’s rationale that was purposes. refusing give effect to state statutes Finally, Lujan-Armendariz, we con than reflecting purposes different those of sidered whethеr the IIRIRA-amended def provide not a rational basis the FFOA did inition “conviction” nullified the effect of persons. for the treatment of differential drug pos state rehabilitative statutes on Thus, Garberding the rule that established for immigration purposes. session offenses “persons who received the benefit of a We concluded that because IIRIRA did subject state law were not (in FFOA, repeal part) not whole or they deportation long as as could have equal protection principles mandated that received the benefit of the federal Act if aliens whose convictions been ex had they prosecuted had federal been under punged pursuant law state were still Lujan-Armendariz, law.” 222 F.3d at entitled to the same treatment as those 738. expunged whose convictions had been un Paredes-Urrestarazu, recognized Contrary der federal law. to the INS’s rule that persons guilty converse found position, Garberding we clarified that drug of a offense who could not have bene princi Paredes-Urrestarazu stand for the fited from the FFOA were not entitled ple equal protection requires “that that treatment, receive favorable expunge the INS treat federal and state if they qualified even un rehabilitation similarly.” ment statutes Id. at n. Paredes-Urrestarazu, der state law. See significantly, Most we reached this conclu 36 F.3d at 812. Our by result was driven in spite sion of the factual distinction that protection the same equal analysis. Peti Garberding disparate involved treatment tioner in complained that case statutes, parallel under state rather than BIA erroneously affirmed the IJ’s consid statutes, federal and state “it expunged drug eration of an conviction reasoning evident that our in [those] during deportation his hearing; that con applies equally in case[s] both contexts.”

viction, however, require did not meet the Id. for expungement ments under the FFOA. Had petitioner been entitled to relief We conclude that the petition FFOA, appeal would have er’s case is controlled our decisions merit, Paredes-Urrestarazu, had since there would be no reason Garberding, Lujaiv-Armendañz. to reach different results due to “the Together, mere these state, fortuity that the and not the federal cases proposition three stand for the broad (and government, prosecutes an par alien for a long absent rational basis as as short, ticular extant), offense.” Id. In “it would may the FFOA remains the INS give ‘anomalous’ to effect to the federal not against discriminate aliens convicted of expungement statute while giving simple possession ef offenses whose subse fect to its counterparts.” Lujan-A quent qualifiеd conduct would have them rmendariz, rehabilitation, (quoting Pa for FFOA but for the fact redes-Urrestarazu, 812). 36 F.3d at How were convicted and rehabilitated ever, because Paredes-Urrestarazu was sovereign. under the laws of another Put FFOA, eligible for relief under way, equal he another protection eonsider- law, over tire administration of state precept supremacy. criminal constilutional of federal Const, VI, precluded by

since such a claim would be See U.S. art. cl. reason, For this we find that the treat- government the from prohibit ations categorical recog decision not to have committed Board’s differently aliens who ing foreign expungements simple con- nize for have had their offenses and identical of the did simply drug possession because offenses indeed result expunged, victions they peti under which treatment between the the statute differential origin of lawfully persons rehabilitated. tioner and whose federal and were of identical expungements crimes BIA were honored the INS. The erred

B. that “the when found Dillingham’s con We evaluate conviction is akin to a for [Dillingham]’s the re challenge according to stitutional and is therefore eign pardon ineffective law. equal protection quirements our immigration purposes.” Ignoring for peti challenge, on his order to succeed prior equal protection decisions Gar treatment must establish tioner Paredes-Urrestarazu, and Lu berding, similarly that of situated differed from ruled that jan-Armendariz, the Board Living v. Cleburne persons. See Cleburne satisfy the fourth cri Dillingham failed to Center, Inc., 105 S.Ct. Manrique, terion of because he was reha (explaining L.Ed.2d 313 (as foreign opposed under a to a bilitated equal protection di guarantee that the state) statute, general as a similarly “all situated persons rects that recog matter the Board has never policy alike”); v. see also United States treated of moral foreign pardons nized crimes Armstrong, S.Ct. By foreign expunge turpitude. likening (1996) (denying criminal simple drug possession offenses ments of challenge to equal protection defendant’s moral tur foreign pardons of crimes of drug offenses due prosecution for selective for which pitude category of crimes —a failure to establish that sim to defendant’s re Congress has not enacted domestic of other races were ilarly persons situated analogous to the habilitation statute prior Our subjected prosecution). improperly Board skirted FFOA —the similarly persons situat cases dictate treat constitutional issue of differential equal pur petitioner protection ed to case. ment drug convicted of of poses persons are the Board’s Unfortunately, as a result of upon for which fenses based conduct glean can little of use comparison, false we eligible for relief under would have been all of the cases FFOA, opinion. Virtually were from its and whose convictions BIA relied concern on which the ultimately expunged by sovereign turpitude.13 of crimes of moral pardons imposed them.12 Moreover, Manrique, adjudicated.” dissenting conduct was agree with original). (emphases Int. Dec. 3250 at 20 noted that “Gar- member of the Board who application way berding ... in no limits exception 13. The one — Mullen-Cofee principle statutes which it establishes to state Cir.1992) con 976 F.2d 1375 —involved analogues statute. that are federal purposes drug possession for victions upon equal protection Garberding relies possession, trafficking, simple and thus analysis the United States Constitution under subject rehabil to FFOA would not have been subsequent that the construction holds pardon in Id. at 1377. The itation either. ‍‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​​​‌​‌​‌‌​​‌‌​​​‌‌​‌‌‌‍conduct, disposition prior of criminal immigration unrecognized for that cáse went resulting of the individual in treatment drug pardons of offenses purposes because no proceedings, be based on should INA, whether for recognized under the are conduct, provision which not the 7; n. 8 U.S.C. eign domestic. Id. or (2d See, e.g., 537 F.2d 686 available under federal law. Rehman Marino Cf. (2d Cir.1976) (rea- Cir.1976); INS, Hempel, Weedin v. 28 F.2d 603 v. 544 F.2d G-, Cir.1928); soning ought recognize Matter I & N that the to INS of F-Y (BIA 1952); G-, expungement marijuana posses- Dec. 717 Matter 5 I & state of of 1953). (BIA unsurprising It is sion no “fear undermining N Dec. 129 because of en- any problematic deportation that have not found forcement of federal can courts laws” equal implications recognition for de exist where protection aliens “would ex- (or inadmissible) ported Congress deemed for such tend no further than where itself criminals”). crimes, given they that gone wоuld not have has for federal The dis- qualified expungment applica under an position, stating sent dismisses this that anyway. foreign expungement ble federal statute Carr v. nothing laws have Cf. (9th Cir.1996) (hold uniformity immigra- do with the of federal ing Garberding help that of no tion laws. See Dissent at 13250. We add alien who was convicted of a firearms of that neither expungement do state laws subsequently and deported anything facially fense ordered have to do with federal by Indeed, Garberding immigration the “did not only laws. it is the speak treating to the issue of by government aliens differ differential treatment ently they persons on the basis of the crimes had of seeking deportation to avoid on committed”). jurisdiction the basis of the from which they expungements past received for their Had the Board restricted itself to gives prob- offenses that rise both to the the propriety recognizing discussion of of uniformity lem of and the constitutional foreign expungements for first offender equal protection. issue of convictions, drug minor it would have been Thus, acknowledge recogni forced to that such having found differential treatment, in “objective tion fact furthers the desired we turn to question achieving greater in uniformity the ad whether supported the Board’s decision is ministration of laws.” a rational government’s basis. The Paredes-Urrestarazu, 36 F.3d at chief contention is that policy its of not words, other policy arguably such a would recognizing foreign expungements justi is government aid the to achieve its own fied because of the added administrative expressed purpose insulating difficulty in verifying aliens that an alien’s convic severely from disproportionate punish validly tion has indeed expunged, been ment of deportation simple possession that he or she fact complied with the drug requiring оffenses without requirements expungement honor grant showing rehabilitation statute such that the alien also would have greater leniency than would qualified have been for relief under the FFOA.14The 1227(a)(2)(B). § But 8 U.S.C. the fact that the alien bears the burden of cf. 1227(a)(2)(A)(v) (recognizing pardons of establishing validity expungement, of an turpitude). crimes of moral coupled government's with the need to identi- fy verify foreign convictions in order to Judge adopts government's Fernandez deportability, determine reduces these con- dissent, position certainly agree in his and we question cerns to a of relative administrative verification, fraud, regarding that concerns Judge parade burden. Fernandez lists a Nevertheless, corruption are serious. we may horribles that he believes ensue as a justify govern- believe that do not (for ruling today example, result of our policy refusing recognize ment’s blanket may required soon be to rule that an alien expungements through adoption all such seeking to authenticate an can- presumption. Ultimately, of an irrebuttable rejected held, however, doing, the Court the state’s so has Court Supreme are so seldom claim that unmarried fathers interest is the petitioner’s where cases parents fit as that Illinois should not be interest government’s and the substantial required “undergo the administrative policy question forth the putting inquiry.” Id. at inconvenience minimis, policy such a or de unquantifiable Supreme specifical 1208. The Court S.Ct. rational re- even basis cannot withstand ly stated that the Due Process Clause was view. fragile values of a' “designed protect to the Illinois, 645, 92 v. 405 U.S. Stanley In citizenry overbearing from the vulnerable (1972), 1208, the 31 L.Ed.2d 551 S.Ct. efficacy that efficiency concern for of irre- policy that an Illinois held Court may praiseworthy govern chаracterize that unmarried fathers buttably presuming less, more, perhaps officials no ment chil- custody of their unfit to merit Id.; were Reed v. than mediocre ones.” see also basis, equal Reed, 251, a rational violated 71, dren lacked 404 92 S.Ct. 30 L.Ed.2d pro- Burson, 535, to required (1971); the state protection, and Bell v. 402 U.S. 225 (1971); 1586, hearing with a fitness 29 L.Ed.2d 90 Car such fathers 91 S.Ct. vide Rash, 89, 775, rington In v. 380 U.S. 85 S.Ct. a determination. prior making to such INS, v. 661 F.2d proper records from ord. See Corona-Palomera expected be to obtain INS, (9th Cir.1981) (stating purposes origin). v. 814 that for country Abovian of Cf. 972, Cir.2000) (9th sufficiently (ruling deportation "identity that of of names F.3d 978 219 person”) (citing "independent evidence is not links a document to a Paster corroborative States, 696, (9th applicants required asylum where their v. 400 F.2d from chik United Cir.1968), unrefuted”); denied, Ramos-Vasquez testimony v. 89 S.Ct. is rt. 395 U.S. ce INS, (9th 1995) (stating (1969) (regarding proof Cir. 23 L.Ed.2d 770 evidence, that, documentary support prior in the absence of to сiminal of conviction satisfy objective asylum applicant may by the charges transportation of of firearms one persecu component Despite greater his claim for fear of felony)). of the convicted of a "credible, by giving testimony tion that is opportunity the and lower costs of resources persuasive, specific to that and refers facts any peti compared with almost alien INS as give tioner, that has been or [he] rise to an inference required government itself is not to the ... good to fear that he will be has a reason provide special proofs of a document's trust singled persecution”). See, out for e.g., Espinoza v. worthiness. (ruling that "information on an au F.3d 308 simply point response, we out that the In presumed immigration form is to thenticated range procedures broad authentication of evidence to the be reliable in the absence immigration proceedings are available required contraiy” IJ and that the is government and aliens available to both the pre permit of the form's cross-examination seeking deportation. See Iran v. to avoid Thus, with parer). given the relative ease Cir.1981) (stating 472 n. 8 ordinarily government can estab which the may documentary be admitted that evidence conviction, foreign proof it seems lish proceeding deportation if authenticated in a wholly the BIA this court irrational regulations, or otherwise in accor- under INS duly adopt a authenticated should rule the Rules of dance with Rule 44 of Federal categorical expungement foreign evidence of procedure comports by “any Evidence or pro deportation evidence”). ly cannot be considered While with common law rules of ceedings. certainly required government to au- the event, regarding poten- concerns a record of conviction in order thenticate deportee above tial malfeasance enumerated genuine, Chung Young that it is see determine case, (1962), presented the facts of Boyd, are not 309 F.2d 857 Chew simple expungement of a involve the will suffice to es- which record once authenticated British law that possession offense under a that the alien stands convicted tablish obtaining crime, greater presents no obstacles barring the con- evidence to recorded involving cases proper evidence than trary, identity the name there is an between if expungements. on the rec- the alien and the name stated (1965). establish, by BIA would But Reno nonetheless cf. Flores, 292, 311-12, case, 113 S.Ct. way of its decision in this an irrebutt- (upholding 123 L.Ed.2d presumption against validity able of all policy refusing to rеlease alien INS’s expungements irrespective — juveniles awaiting deportation into who are occurred; question where the offense in custody of adults who are not close comparable system how to ours the relatives, rejecting blood but the conten- justice (including operation criminal “ ‘minimizing tion that administrative law) be;15 may what justification adequate costs’ is for the Ser- degree verifying expunge- of evidence Moreover, vice’s we do not seek [policy]”). rul- may present. Today’s ment the alien impugn govern- the intentions of the way ing interpreted should no as an here, find that ment but we Court’s impediment to the Board’s future estab- Stanley reasoning applies. appropriate lishment of standards concern- ing these and other relevant criteria. private liberty interests in in in ‍‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​​​‌​‌​‌‌​​‌‌​​​‌‌​‌‌‌‍deportation proceedings volved are Thus, as the in See, Court statеd Stan

disputably e.g., substantial. INS Cardoza-Fonseca, 421, 449, ley, although “[procedure by presumption 480 U.S. 107 (“Depor always cheaper S.Ct. is than and easier individu measure.”); always a determination,” 656-67, tation is harsh alized at 405 U.S. Wixon, Bridges v. 65 we that govern S.Ct. find the (1945) (“Here S.Ct. 89 L.Ed. 2103 ment’s in interest conve administrative liberty the of an at individual is stake.... nience is insufficient to establish a rational Though deportation technically is not categorical foreign basis its dismissal of proceeding, great criminal it visits hard Indeed, expungements. we fail to how see ship him deprives on the individual and the administrative identifying burden of right stay the and live work in and this (which verifying foreign convictions land of freedom.... Meticulous care government already the undertakes as a must procedure by be exercised lest the matter of course to determine whether an deprived liberty which he is of that not States) alien is admissible into the United fairness.”); meet the essential standards of is different from the incremental bur (“De Yepes-Prado, 10 n. 11 F.3d at 1369 verifying foreign expungements— den of portation is a drastic measure and at times light especially government’s of the fail equivalent the of banishment or exile. It provide any ure to in support evidence is the forfeiture for misconduct of a resi in regard present this claim to the case. country.”) dence in this (quotation omit accordingly We find government’s the de ted). establishing pre cision irrebuttable sumption against validity the

Significantly, is alien expungements to unacceptably over- demonstrating who bears the burden of broad, in light of an alien’s substantial eligible that he or she is for admission into in avoiding deportation, interest United States. The alien also as well as bears (or nonexistent) demonstrating government’s the burden of minimal that he or eligible adjustment she is of status. incremental burden in that verifying his or Any long 15. assertion foreign dispositions by that BIA is without the considered look- ability comparison to make such a is without ing analogues.” Manrique, to their federal merit, for, dissenting as the member of the Int. Dec. 3325 at 20-21. case, Board noted in this the Board "ha[s] Thus, interpretation statutory expunged. we sonable” conviction was her 1182(a)(2)(A)(i)(II). language in- 8 U.S.C. government’s purported hold that the Aguirre-Aguirre, See 526 U.S. at convenience does in administrative terest However, argument for distin- S.Ct. legitimate constitute a basis not again by Lujan-Armendariz. foreclosed whose illic- Dillingham, aliens like guishing There, rejected a similar claim rehabilitation we subsequent it conduct and (but Board’s definition of the IIRIRA-amended British soil who would occurred on term “conviction” should control. We held qualified have for relief under otherwise (in IIRIRA FFOA), repeal convictions did from aliens whose FFOA, part) whole domestically or the statute expungements place took ambiguous precluded gov- was not procedures. result, interpretation. ernment’s As a continue to heed of the We take Chevron deference was warranted. distinguish fact that federal classifications Lujan-Armendariz, 748-49. subject to ing among aliens are relaxed case, reasoning applies Similar to this ren- authority scrutiny, plenary because of the dering position the BIA’s meritless. government the federal holds over immigration. Nyquist, matters See Conclusion However, at 7 n. S.Ct. finding Dillingham statutorily clarify that this is no more true must status, ineligible adjustment for of the BIA case, present petitioner where the has animating failed to consider the central subjected treatment been to differential underlying holdings our in principle Gar and ex prosecuted because his crime was Paredes-Urrestarazu, Lu berding, than state or punged under rather understood, Propеrly jan-Armendariz. law, previous in federal than has been holdings proposition these stand for the government cases where the drew a dis government bars the equal protection expungements granted tinction between against from aliens who discriminating different states. Ulti under the laws of substantially identical of have committed that Dill mately, purposes for our the fact and have had their convictions ex fenses place conviction took on British ingham’s substantially identical stat punged under country his arrival in this prior soil utes, solely because of where the offense to a British reha expunged pursuant was in government’s purported occurred. The to a distinction bilitative statute amounts efficiency terest in administrative does equal protection a without difference. The justify a constitute a rational basis driving controlling rationale our cases re distinction. stated, Simрly mains unaffected. no Dillingham we hold that Because case, no rational the facts of this there is longer stands “convicted” of controlled eligi from precluding Dillingham basis for offense, jurisdiction we exercise substance status, bility adjustment per while him petition'and merits of his find over the domestically of mitting aliens convicted discretionary grant seek a eligible to (and rehabilitated under identical offenses permanent adjustment legal of status to rehabilitative similar state and federal peti- accordingly grant the resident. We statutes) to seek such relief. remand to the BIA for such tion and V. determination. AND RE-

Finally, argues BIA that Chevron PETITION GRANTED MANDED. to its “rea- deference should be accorded

1012 tion;

FERNANDEZ, Attorney has so decided. Judge, General Circuit Dissenting: protection grounds, we have ex equal On expungements tended that to under state that as a matter of Dillingham argues INS, 222 v. Lujan-Armendariz laws. See expungements in all law constitutional (9th Cir.2000); 728, 737-38 Garberd the world must be treated the countries of (9th 1187, ing v. 30 F.3d Cir. expungements in manner as the same 1994); v. see also Paredes-Urrestarazu anything within the United States (9th Cir.1994). 801, equal 36 F.3d One principle less would violate the disagree. I protection. question Attorney could the idea that the required by is the Constitution to General could, doubt, no Congress While so de in the expungement treat state statutes cree, compelled it is not to do so way Garberding same he treats the FFOA. equal protection Constitution. As other that, say although it itself did not did claims, what we must ask is whether there Attorney decide that when General a rational for the choice made basis Dukes, exact determines he will treat City New here. See Orleans 303, 2513, 2516-17, 297, counterparts way 427 U.S. 96 S.Ct. of the FFOA he (1976); Gomez, itself, Madrid v. he then treats the FFOA must treat Cir.1999); Cecelia expungement other state statutes a sim Packing Corp. Dеp’t v. United States course, purposes ilar manner. Of (9th Cir.1993). Agric., 10 F.3d case, that neither here nor there. area, ap And that is it, cry stating As I see that is a far from plied in an even more relaxed manner than Attorney equally that the General is re- Mauclet, Nyquist usual. See quired to treat the statutes 8,n. 7 n. 97 S.Ct. 53 L.Ed.2d from all of the countries of the world in the (1977). That is because federal authori manner same that he treats the FFOA ty in plenary. this area is See Mendoza v. and, by extension, expungement stat- (9th Cir.1994). INS, 335, 16 F.3d 338 utes. It that fortuity” foreign is no “mere preclude judicial “The reasons that review in prosecuted offenders are their own political questions ... dictate a narrow Paredes, countries not here. See 36 standard of review of decisions made foreign expungement F.3d at 812. Nor do Congress or the President in the area “ anything laws have to do with ‘uniform immigration and naturalization.” Math Diaz, 67, 81-82, application [оur] ews v. 426 nationwide 96 S.Ct. ” (1976). (citation omitted). fact, We will laws.’ Id. In only if overturn a classification it is “whol foreign ways countries and their are not 83, ly irrational.” at Id. S.Ct. at 1893. necessarily, particularly, or even the same country ways. as this and its A much I in nothing see irrational a determina- complex placed upon more task is tion that we will not treat aliens who ob- shoulders of an agency administrative expungement tain drug offenses in other only when it told that it is must not review way countries the same that we treat varying ways and means of expunge- those who obtain of offenses world, full ments all over the but also the course, country. in this Of under the Fed- admittedly records of aliens who have com- Act, eral First Offender 18 U.S.C. offenses, mitted not to mention the simple drug possession some convictions are, can difficulties that can encountered in au- expunged. they they be When be predicate depоrta- thenticating accuracy are not used as a of those records. will say it do to that burden Nor will step in this The next on the alien.

be WELCH, Thomas James Petitioner- a claim that the likely be will most process Appellant, rec get actual expected cannot be alien v. country origin. See Abo from his ords (9th INS, 978-79 219 F.3d vian Anthony NEWLAND, Warden, C. Cir.2000); Ramos-Vasquez Respondent-Appellee. Cir.1995). (9th And, 857, 862-63 00-15366. No. requirements authentication special even countries, where from other for documents Appeals, United States Court as rampant, are treated forgery may Ninth Circuit. Khan v. circuit. See suspect Cir.2001). Argued July Submitted That impossible it say that will be is not Sept. Filed requires rang system which administer manner —we the world ing all over just can live virtual people

know that as environment, ultimately can any

ly just about

live with and administer how difficult. system,

kind of no matter rational say perfectly

But it is to process.

to decline to undertake does not have to take on

Attorney General the rules and dealing with

the burden country in the world sim every

records of because, root, ignore he decided to

ply expunged under FFOA.

convictions fine, does not re- equal protection have here: progression

quire

recognition of FFOA expungements, statutes,

recognition of similar state and, fi-

recognition of all state statutes all

nally, recognition of enactments ‍‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​​​‌​‌​‌‌​​‌‌​​​‌‌​‌‌‌‍that, say the world. To does

over country, although it does rec-

enisle this nation. separate that we are a

ognize concept, a fine but it is

One world is yet imperative. Not constitutional

anyway.

Thus, respectfully I dissent.

Case Details

Case Name: Christopher John Dillingham v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 14, 2001

Citation: 267 F.3d 996

Docket Number: 97-71038

Court Abbreviation: 9th Cir.