In re Erick MARROQUIN-Garcia, Respondent
File A90 509 015 - Los Angeles
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided by Attorney General January 18, 2005 Decided by Board February 21, 1997
23 I&N Dec. 705 (A.G. 2005)
Interim Decision #3507
(2) An alien whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been “convicted” for immigration purposes.
FOR APPLICANT: Jay J. Tanenbaum, Esquire, Sherman Oaks, California
FOR DEPARTMENT OF HOMELAND SECURITY: Joe D. Whitley, General Counsel
BEFORE THE ATTORNEY GENERAL
(January 18, 2005)
In 1997, the Board of Immigration Appeals requested that its decision in In re Marroquin, A90 509 015 (BIA Feb. 21, 1997), be certified for review pursuant to the provision now codified at
OPINION
The Board of Immigration Appeals (“BIA” or “Board“) referred its decision in this matter for my review pursuant to
For the reasons stated below, I find that the new federal definition of “conviction” means that for a conviction not involving first-time simple possession of narcotics, an alien remains convicted, and thus removable under current section 237 of the INA, notwithstanding a subsequent state action to vacate or set aside the conviction. The BIA‘s decision is reversed and remanded.
I.
A.
Erick Marroquin-Garcia entered the United States without inspection in 1980. He adjusted to the status of lawful permanent resident alien pursuant to section 245A of the INA in December of 1989. See
The Immigration and Naturalization Service (“INS“) instituted deportation proceedings against Marroquin-Garcia on the basis of his state firearms conviction. On September 13, 1994, an Immigration Judge ordered Marroquin-Garcia deportable pursuant to what was then section 241(a)(2)(C) of the INA. See Marroquin, at 2. At that time, section 241(a)(2)(C) of the
During the pendency of his appeal to the BIA, Marroquin-Garcia filed a motion in Superior Court for the County of Los Angeles for relief pursuant to section 1203.4(a) of the California Penal Code. Section 1203.4(a) provides, inter alia, that
[i]n any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty . . . [and] the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.
See
Relying on the BIA‘s decision in In re Luviano, 21 I&N Dec. 235 (BIA 1996) (”Luviano“), Marroquin-Garcia argued on appeal to the BIA that the expungement of his conviction meant that he had not been “convicted” for purposes of section 241(a)(2)(C) of the INA. As discussed more fully below, the BIA had held in Luviano that prior Attorney General opinions compelled the conclusion that an alien whose conviction for a non-narcotics related offense had been expunged pursuant to section 1203.4(a) of the California Penal Code had not been “convicted” for purposes of section 241(a)(2)(C) of the INA. See Luviano, 21 I&N Dec. at 237 (citing In re Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966; A.G. 1967); In re G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961)). At the time the BIA was deciding Marroquin, the Board‘s decision in Luviano was pending before the Attorney General. In light of a new federal definition of “conviction,” enacted in section 322(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628, the BIA decided Marroquin-Garcia‘s appeal rather than wait for the Attorney General‘s decision in Luviano. In Marroquin, the BIA concluded that the new federal definition of conviction did not affect the Board‘s decision in Luviano and
Before addressing the merits of the Board‘s decision, I will first review the relevant history of this issue in greater detail.
B.
Prior to the enactment of the new federal statutory definition, the INA did not define “conviction.” The federal courts, the Attorney General, and the BIA were therefore provided with little legislative guidance as to how to interpret the statutory provisions that subjected to deportation those persons who had been “convicted” of certain types of offenses. Two distinct lines of Attorney General precedent developed that addressed the effect of an expungement on a conviction that would otherwise provide a basis for an order of deportation under the federal immigration laws. Before discussing these lines of precedent, however, I must clarify the term “expungement.” Throughout this opinion I will use the term expungement to refer to the process of clearing a defendant‘s record of a prior conviction. This expungement is achieved generally through two means: either a statute permits a deferred adjudication of a conviction such that a judgment is never entered, or a court vacates or sets aside a judgment of conviction from the books under a rehabilitative statute. As the Ninth Circuit has described the difference,
[under a] “vacatur” or “set-aside” [statute], a formal judgment of conviction is entered after a finding of guilt, but then is erased after the defendant has served a period of probation or imprisonment and his conviction is ordered dismissed by the judge. . . . [Under a] “deferred adjudication” [statute], no formal judgment of conviction or guilt is ever entered. Instead, after the defendant pleads or is found guilty, entry of conviction is deferred, and then during or after a period of good behavior, the charges are dismissed and the judge orders the defendant discharged.
Lujan-Armendariz v. INS, 222 F.3d 728, 735 n.11 (9th Cir. 2000).
Returning to the Attorney General precedents, first, there were decisions that held that aliens who had been convicted of what section 241(a)(4) of the INA termed “crimes of moral turpitude,” such as forgery or fraud, were not subject to deportation if their convictions had been expunged. See In re Ibarra-Obando, supra; In re G-, supra. Second, there was an Attorney General decision that held that aliens who had been convicted of what section 241(a)(11) termed “narcotics offenses,” such as the distribution of marijuana, were subject to deportation even if their conviction had been expunged. See In re A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959).3 In 1970, Congress carved out
At the time that the BIA decided Luviano, neither of the existing lines of administrative precedent addressed directly the circumstance at issue in Luviano, which concerned the effect of an expungement on a person who had been convicted of what the former section 241(a)(2)(C) termed a “firearms” offense. Nevertheless, the BIA concluded in Luviano that the prior Attorney General opinions had established a rule that applied to all convictions that were not narcotics-related and that had been expunged. The BIA concluded that this rule precluded such convictions from serving as the basis for an order of deportation.
After the BIA issued its decision in Luviano, Congress enacted section 322(a) of IIRIRA, which amended the INA to define the term “conviction” for the first time. The new definition provides:
[t]he 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.
IIRIRA § 322(a), 110 Stat. at 3009-628; INA § 101(a)(48)(A),
The Attorney General‘s review of the Luviano decision was pending at the time Marroquin-Garcia‘s appeal came to the BIA, but in light of the new federal definition in IIRIRA, the BIA concluded that it should decide the merits of Marroquin-Garcia‘s appeal, rather than wait for the Attorney General‘s decision in Luviano. In construing this new federal definition, the BIA determined that the statutory text did not make clear whether, or to what extent, Congress intended to treat expunged convictions, of any type, as “convictions” for purposes of the immigration laws. The BIA therefore turned to the legislative history. It relied primarily on a joint explanatory statement in the conference report to the IIRIRA that addressed the new definition. See Marroquin, at 4-5. The joint explanatory statement made particular mention of the BIA‘s pre-Luviano decision in In re Ozkok, 19 I&N Dec. 546 (BIA 1988), in which the BIA had established rules for determining whether a state court‘s decision to withhold an adjudication of guilt prior to the entry of a formal judgment of conviction—as opposed to vacating or setting aside a conviction already entered—precludes a judge‘s or jury‘s finding of guilt, or a defendant‘s plea of guilty, from being deemed a “conviction” under the INA.4 See Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 104-828 at 199, 223. The BIA noted that, in contrast to the joint explanatory statement‘s relatively detailed discussion of Ozkok, “there was no discussion whatsoever” of the BIA and Attorney General decisions that had established the rules for determining whether formal judgments of conviction that had been entered and subsequently vacated or set aside constituted “convictions” under the INA. See Marroquin, at 5.
The BIA concluded from the joint explanatory statement‘s express reference to Ozkok, and its failure to mention the other type of expungement decisions, that Congress did not intend for the INA‘s new definition of “conviction” to supplant Luviano‘s rule for determining whether a state court conviction that had been formally entered, but subsequently vacated or set aside, constituted a “conviction” under the INA. See id. The BIA determined
The BIA referred this matter for my review as well. “If the Attorney General ultimately determines that a conviction for a firearms offense survives for immigration purposes despite a state procedure for expungement, the [Immigration and Naturalization] Service is free to reinstate deportation proceedings against the respondent here,” the BIA explained. Id. “At present,however, the [Immigration and Naturalization] Service cannot seek the respondent‘s deportation under section 241(a)(2)(C) of the Act on the basis of a criminal case in which the plea of guilty has been set aside and vacated, and the charges have been dismissed.” Id.
After the BIA referred its decision in this case to me, the Board issued its opinion in Roldan, supra. In that case, the BIA considered whether an expunged narcotics conviction could form the basis for an order of deportation in light of the new definition of conviction in IIRIRA. Although Roldan appears to involve a deferred adjudication,5 the BIA found “it necessary to reconsider . . . the effect to be given to any state action, whether it is called setting aside, annulling, vacating, cancellation, expungement, dismissal, discharge, etc., of the conviction, proceedings, sentence, charge, or plea, that purports to erase the record of guilt of an offense pursuant to a state rehabilitative statute,” 22 I&N Dec. at 520. The BIA determined that Congress intended to establish a uniform federal rule that precluded the recognition of subsequent state rehabilitative expungements of convictions. More precisely, the BIA found that because Congress clearly intended that an alien with a deferred adjudication should be considered convicted, Congress also must have intended that an alien with a “technical erasure of the record of conviction” should be considered convicted. Id. at 521. As the BIA stated,
[i]t simply would defy logic for us, in a case concerning a conviction in a state which effects rehabilitation through the technical erasure of the record of conviction, to provide greater deference to that state‘s determination that a conviction no longer exists. Under either scenario, the state has decided that it does not consider the individual convicted based on the application of a rehabilitative statute.
. . . Congress clearly does not intend that there be different immigration consequences accorded to criminals fortunate enough to violate the law in a state where rehabilitation is achieved through the expungement of records evidencing what would otherwise [have been] a conviction under section 101(a)(48)(A), rather than in a state where the procedure achieves the same objective simply through deferral of judgment.
Id. Based on its examination of the statutory text and legislative history, the BIA concluded that it would “interpret the new definition to provide that an alien is considered convicted for immigration purposes upon the initial satisfaction of the requirements of section 101(a)(48)(A) of the Act, and that he remains convicted notwithstanding a subsequent state action purporting to erase all evidence of the original determination of guilt through a rehabilitative procedure.” Id. at 523. The BIA qualified its holding by noting that its decision did not address the situation where a state court vacates a conviction on the merits or on grounds relating to a statutory or constitutional violation. See id. The BIA thus overruled Luviano and Marroquin. See id. at 512.
In Lujan-Armendariz, the Ninth Circuit considered the BIA‘s decision in Roldan. The court was skeptical of the BIA‘s conclusion that the new definition covered vacated or set-aside convictions as well as deferred adjudications. See 222 F.3d at 742. The Ninth Circuit noted that the amendment said nothing about vacated convictions and could well be interpreted to establish only when a conviction occurred without determining what might be the effect of a later expungement. See id. at 741-42. The court did not decide this issue, however, and concluded instead that because the new definition in IIRIRA did not repeal the FFOA, equal protection principles mandated that aliens whose convictions had been expunged pursuant to state law were still entitled to the same treatment as those whose convictions had been expunged under federal law. See id. at 748-50. Therefore, an alien could not be deported based on a state conviction of simple possession where that conviction was expunged by the state, if a federal simple possession conviction could have been expunged under the FFOA. In other words, because the new definition of conviction did not repeal the FFOA, if an alien‘s conviction for a simple possession narcotics offense was expunged under a state equivalent of the FFOA, that conviction could not serve as the basis for an order of deportation, because had the alien received the expungement under the FFOA, that conviction could not form the basis for the order of deportation. See id. at 750.
With this history in mind, I now turn to the question of the proper interpretation of “conviction,” at least with respect to non-narcotics cases.
A.
As set forth above, the relevant statutory provision defines a “conviction” to be “a formal adjudication of guilt of the alien entered by a court[.]” INA § 101(a)(48)(A),
This same logic, however, suggests that a different conclusion is warranted for convictions such as the one at issue in this case. As was noted in dissent in Luviano, state laws that authorize the subsequent expungement of a conviction typically do so for reasons that are entirely unrelated to the legal propriety of the underlying judgment of conviction—reasons, in other words, that are unrelated to concerns about the factual basis for, or the procedural validity of, the conviction. See Luviano, 21 I&N Dec. at 247-48 (Hurwitz, dissenting). These state expungement laws authorize a conviction to be expunged in order to serve rehabilitative ends and without reference to the merits of the underlying adjudication of guilt. Id. Such expunged convictions would appear, therefore, to survive as formal adjudications of guilt entered by a court.
Here, the state expungement law that provided relief for Marroquin-Garcia permits state courts to provide relief to all convicted defendants who seek it and have either completed their terms of probation or have been discharged prior to the termination of their probation. See
For these reasons, the relief provided by the California expungement law does not reflect a judgment about the merits of the underlying adjudication of guilt. It does not provide relief equivalent to a decision on appeal (or in a collateral proceeding) that reverses or vacates a judgment of conviction for insufficiency of the evidence or for procedural errors at trial. It serves only to ameliorate certain of the punitive consequences that attend a court‘s legally valid finding of guilt. Even though the initial judgment of conviction has been set aside pursuant to section 1203.4(a), the merits of the underlying judgment have not been called into question and adverse legal consequences continue to follow from it. Thus, that judgment would still appear to fall squarely within the plain language of the new federal statutory definition of “conviction,” which defines a “conviction” under the INA to be “a formal judgment of guilt of the alien entered by a court.” INA § 101(a)(48)(A),
The conclusion that the phrase “a formal judgment of guilt of the alien entered by a court” should be construed to encompass, by its plain terms, convictions that have been vacated or set aside pursuant to expungement statutes like section 1203.4(a) finds additional support in the treatment that the new federal statutory definition of “conviction” accords an “adjudication of guilt [that] has been withheld.” Id. The new federal statutory definition of
The congressional determination that even some state court decisions to withhold adjudications of guilt prior to the entry of a judgment of conviction should be counted as convictions under the INA supports the more modest conclusion that the phrase “a formal judgment of guilt of the alien entered by a court” encompasses judgments of conviction that, at least in the ordinary case, have been entered but then vacated or set aside for reasons that do not go to the legal propriety of the original judgment and that continue to impose some restraints or penalties upon the defendant‘s liberty. A conviction that has been vacated or set aside pursuant to a law like the California statute ordinarily does not differ in substance from the type of state court decision to withhold an adjudication of guilt prior to entry that Congress has explicitly deemed to constitute a “conviction.” The relief that the court provides in each type of case does nothing to call into question the propriety of the underlying adjudication of guilt.
Indeed, this case well illustrates the point. Even though Marroquin-Garcia‘s conviction has been set aside under section 1203.4(a), the underlying judgment of guilt still counts as a “conviction” under California law, and he not only has been subjected to punishment as a consequence of that conviction but also remains subject to various civil disabilities as well. The existence of these continuing legal disabilities certainly suggests that, for purposes of determining whether the initial adjudication of guilt may serve as the basis for an order of deportation, the expungement in question should not be equated with a court‘s setting aside a conviction on the merits in a collateral proceeding or on appeal.
Because even an “adjudication of guilt [that] has been withheld” may constitute a “conviction” under the new federal definition that Congress has enacted, there would appear to be no reason to construe the phrase “a formal judgment of guilt entered against the alien by a court” to exclude expunged convictions of the type at issue here. Indeed, in light of the treatment that the new federal statutory definition accords certain state court decisions to withhold an adjudication of guilt prior to the entry of a conviction, the conclusion that the new federal statutory definition fails to encompass the broad category of expunged convictions identified in Luviano would lead to anomalous results.
As discussed above, the Ninth Circuit reached a different conclusion only with respect to a narcotics offense that would have fallen within the Federal First Offender Act had the charges been brought in federal court. See Lujan-Armendariz, 222 F.3d at 750. With respect to offenses that do not fall within the FFOA or a state equivalent, the Ninth Circuit held that the BIA‘s interpretation in Roldan—i.e., that the new definition of conviction covers vacated or set-side state convictions as well as deferred adjudications—was a permissible construction of the new statutory definition of conviction. See Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001). And other circuits to address the issue have agreed with the BIA that a vacated conviction falls within the new definition of conviction. See Renteria-Gonzalez v. INS, 322 F.3d 804, 812-14 (5th Cir. 2002) (applying plain meaning of new IIRIRA definition to find that vacated federal conviction for trafficking in aliens remained conviction for purposes of INA); United States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (applying the plain language of new definition to find that vacated conviction for possession of
Because this case does not involve a conviction for a narcotics offense and a subsequent rehabilitation either under the FFOA or state law, I do not decide whether the Ninth Circuit was correct in concluding that the new definition of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, equal protection guarantees require that an alien with a state conviction who would have been eligible for FFOA relief had the conviction been rendered in federal court receive the same treatment as a alien with a federal conviction. I do note, however, that at least three circuits disagree with the Ninth Circuit. See Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems plain that rational-basis review is satisfied here“); Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003) (finding Ninth Circuit‘s decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-99 (8th Cir. 2002) (disagreeing with Ninth Circuit and declining to address possible repeal of FFOA by IIRIRA because no equal protection violation for treating alien convicted under state law differently from alien convicted under federal law where the sentences were dissimilar and Congress could have intended to provide relief only for federal convictions, over which Congress would have control). Indeed, although the BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-Regino, 23 I&N Dec. 223, (BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [INA].“)
There remains the final question whether the expungement that Marroquin-Garcia received in this case removes that conviction from the scope of the new federal statutory definition of “conviction.” As has already been noted, section 1203.4(a) of the California Penal Code does not serve to provide relief that is based on a judgment about the legal propriety of the underlying judgment of conviction. It merely provides a means by which certain defendants who have been lawfully convicted and subjected to punishment may be relieved of many, though not all, of the remaining legal consequences that normally attend an adjudication of guilt. Therefore, notwithstanding the relief that petitioner received under section 1203.4(a) of the California Penal Code, he has been “convicted” for purposes of what was then section 241(a)(2)(C) of the INA.