In a recent decision, the Board of Immigration Appeals held that once an alien is convicted of a crime—as conviction is defined in section 101(a)(48)(A) of the the Immigration and Nationality Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—the alien remains convicted for immigration purposes despite subsequent state action to erase, through a rehabilitative procedure, the original determination of guilt.

In 1993, the respondent in the case before the BIA, a lawful permanent resident, pled guilty to, and was convicted of, possession of more than three ounces of marijuana, which was a felony under Idaho state law.  The Idaho state court withheld adjudication of judgment, sentenced the man to three years’ probation, and fined him.  The terms of the probation included, among others, restrictions forbidding him from using alcohol or associating with any individuals not approved by his probation officer.

In 1994, the Immigration and Naturalization Service began deportation proceedings against the respondent, charging him with being deportable based on his conviction for a controlled substance violation.  While in deportation proceedings, the respondent filed a motion in the Idaho state court for early release from probation and dismissal of the drug possession charge in accordance with the withheld judgment.  The state court granted both this motion and his motion to vacate the guilty plea.

In deportation proceedings, the respondent argued that he was not deportable because the Idaho state court’s actions rendered him no longer convicted.  Alternatively, he sought a waiver of deportability under section 212(c) of the Immigration and Nationality Act.  However, finding that the respondent was deportable and ineligible for a 212(c) waiver, the immigration judge ordered him deported.  The respondent appealed, and the BIA affirmed the IJ’s decision.

Prior to 1996, the INA did not contain a definition of conviction.  As a result, the BIA developed a definition through its adjudicatory process in order to have a uniform standard by which to evaluate the many different forms of state criminal proceedings.  In reaching its decision, the BIA compared the definition of conviction developed by it in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), with the term as defined in 1996 in INA section 101(a)(48)(A).  The BIA sought to bring its adjudicatory decisions in line with the definition in the INA.

Under the INA, an alien is convicted if, among other things, a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or the alien has admitted to sufficient facts to warrant a finding of guilt and the judge orders some form of punishment, penalty, or restraint on the alien’s liberty.  Under Ozkok, the definition of conviction is similar to that in the INA except that, in addition, it requires that the adjudicator analyze the state’s ameliorative statute to determine if the alien has been convicted.  In particular, under Ozkok, defendants are "convicted" if, among other things, a judgment of guilt could be entered against them if they violate the terms of their probation or fail to comply with the court’s order and if this judgment of guilt could be entered without them having access to further proceedings regarding whether they were guilty or innocent of the original charge.

The BIA noted that the INA defines conviction without regard to the additional requirement in Ozkok and eliminates the need to refer to a state’s ameliorative statute to determine if an alien has been convicted.  The BIA reasoned that when Congress defined conviction in the INA, it intended to eliminate the additional requirement provided for by Ozkok.  Thus, the BIA concluded that an alien is convicted based on an initial finding or admission of guilt coupled with the imposition of some punishment, without regard to a state’s ameliorative statute.

In this case, the BIA noted that the respondent pled guilty and was ordered by the judge to be punished for his offence.  It noted, therefore, that the respondent met the requirement to be convicted under the INA’s definition.  The BIA’s analysis, however, did not stop there.  The respondent had succeeded in having the judgment of guilt vacated under state law.  The BIA therefore addressed whether a state’s rehabilitative action, which technically erases the record, also erases the conviction for immigration purposes.

In the past, the BIA noted, the general rule has been that an alien may not be ordered deported based on a criminal conviction that has been expunged.  However, the BIA reanalyzed this rule in light of the INA’s definition of conviction.  According to the BIA, Congress intended that a uniform federal approach be taken and did not intend that the existence of a conviction should depend on whether or not an individual state would give continuing effect to an original determination of guilt.  The BIA therefore concluded that an alien who is convicted as defined in the INA "remains convicted notwithstanding a subsequent state action purporting to erase all evidence of the original determination of guilt through a rehabilitative procedure."

In reaching its decision, the BIA held that its decisions in Matter of G–, 9 I. & N. Dec. 159 (BIA 1960, AG 1967), Matter of Ibarra-Obando, 12 I. & N. Dec. 576 (BIA 1966, AG 1967), Matter of Luviano, Int. Dec. 3267 (BIA 1996), and others that address the impact of state rehabilitative actions on whether an alien is convicted for immigration purposes are no longer controlling.

The BIA limited its holding to those circumstances in which an alien has been the beneficiary of a state rehabilitative statute that purports to erase the record of guilt.  The decision does not address the situation in which the alien has had his or her conviction vacated by a state court on direct appeal based either on the appeal’s merits or on a finding that a fundamental statutory or constitutional right was violated during the criminal proceedings.

Finally, the BIA reconsidered its decision in Matter of Manrique, which provided that a first offender guilty of simple drug possession may escape the immigration consequences of his conviction based on his having been the beneficiary of state rehabilitative action.  The BIA concluded that, since Congress removed state rehabilitative actions as a factor in determining whether an alien is considered convicted for immigration purposes, Matter of Manrique and its predecessors are superseded.