Cardenas-Uriarte v. INS: 9th Circuit Rules Expungement Bars Use of Conviction for Drug Paraphernalia Possession in Deportation Case

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

CARDENAS-URIARTE V. INS: 9TH CIRCUIT RULES EXPUNGEMENT BARS USE OF CONVICTION FOR DRUG PARAPHERNALIA POSSESSION IN DEPORTATION CASE
Immigrants' Rights Update, Vol. 14, No. 7, Nov. 28, 2000

The United States Court of Appeals for the Ninth Circuit has ruled that an expungement of a first-time conviction for possession of drug paraphernalia eliminates the effects of the conviction for immigration purposes. The decision follows the court's prior decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). In that case, the court held that a state expungement of a first-time drug possession conviction erases the conviction's immigration effects if the respondent would have qualified for treatment under the Federal First Offender Act (FFOA) had he or she been prosecuted under federal law (see "9th Circuit Finds Expungement Can Eliminate Immigration Effects of Drug Conviction, Overruling BIA's Roldan Decision," IMMIGRANTS' RIGHTS UPDATE, Aug. 31, 2000, p. 6). With this new decision, the court finds that the FFOA applies to convictions for possession of drug paraphernalia as well as convictions for drug possession.

The respondent in this case, a Mr. Cardenas-Uriarte, is a lawful permanent resident from Mexico. In 1991 he pled no contest to a charge of possession of drug paraphernalia under Arizona law. In 1992 the Immigration and Naturalization Service issued him an Order to Show Cause, and an immigration judge found him to be deportable. Cardenas appealed, and in January 1996, while his appeal was pending, he filed a motion to reconsider and remand because his conviction had been expunged. He also argued that he qualified for relief under Immigration and Nationality Act section 212(c). In May 1997 the Board of Immigration Appeals denied the motion, finding that Cardenas had not established that the conviction had been expunged. The BIA also ruled that Cardenas was no longer eligible for 212(c) relief because of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

On appeal, the court first found that despite Cardenas's conviction, it has jurisdiction over the petition for review because he challenged whether he should be considered to have a conviction.

On the merits, the court found that Cardenas's conviction was expunged and that under Lujan the expungement would eliminate the immigration effects of the conviction if possession of drug paraphernalia convictions are encompassed within the FFOA. Analyzing the FFOA, the court found that the plain language of the statute suggests that possession of drug paraphernalia is not so encompassed. However, the court also found that the statute's legislative history and intent support including drug paraphernalia possession and that excluding it from the statute would lead to absurd results. In this case the respondent was initially charged with two counts of drug possession and subsequently pled to the drug paraphernalia charge as a lesser offense. The court concluded that Congress could not have intended that an offense less serious than drug possession would not be subject to the same treatment under the FFOA.

For these reasons, the court concluded that the expungement eliminated the immigration effects of the respondent's conviction and that he is not deportable.

Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).