Murillo-Espinoza v. INS: 9th Circuit Upholds BIA Ruling...Expungements Do Not Eliminate Immigration Effects of Convictions

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

MURILLO-ESPINOZA V. INS: 9TH CIRCUIT UPHOLDS BIA RULING THAT EXPUNGEMENTS DO NOT ELIMINATE THE IMMIGRATION EFFECTS OF CONVICTIONS
Immigrants' Rights Update, Vol. 15, No. 6, Oct. 8, 2001

The Ninth Circuit Court of Appeals has upheld a decision of the Board of Immigration Appeals refusing to recognize a state law expungement of a criminal conviction as having an effect on immigration proceedings. The decision came on a petition for review filed by a lawful permanent resident with a single conviction for theft. The decision means that, in the Ninth Circuit, the only state expungements recognized for immigration purposes are those for first-time drug offenses where the defendant would have been eligible for an expungement under the Federal First Offender Act (FFOA) had he or she been prosecuted federally.

The petitioner in this case, a Mr. Murillo-Espinoza, was admitted to the U.S. as an LPR in 1961. In 1995 he was convicted for theft in Arizona and sentenced to three years' probation and 6 months' incarceration in a county jail. He subsequently violated probation and was sentenced to 18 months of imprisonment. Because Murillo-Espinoza's probation violation amounted to a theft violation for which he received a sentence of over a year, the Immigration and Naturalization Service charged him with being removable for having an aggravated felony conviction. The immigration judge ordered him removed, and Murillo-Espinoza appealed.

While his case was on appeal, Murillo-Espinoza obtained a state court order vacating the judgment of guilt and dismissing the theft charge. He then moved to terminate removal proceedings, and the BIA remanded the case to the IJ to determine the effect of the expungement. Subsequently, the BIA ruled in Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999), vacated sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), that the definition of "conviction" enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) precludes the BIA from giving immigration effect to expungements or any other state procedures that erase a defendant's record of guilt for rehabilitative purposes. In this case the IJ, and subsequently the BIA, found that under Roldan Murillo-Espinoza remained convicted of an aggravated felony for immigration purposes, notwithstanding the expungement.

On appeal to the Ninth Circuit, Murillo-Espinoza argued that INA section 101(a)(48)(A), which contains the statute's definition of "conviction," concerns only the requirements that define circumstances in which an individual is considered to have been convicted in the first place. He argued that the section does not concern the effect of any post-conviction relief. With one modification, the statute codifies the definition of "conviction" that the BIA set out in Matter of Ozkok,19 I. & N. Dec. 546 (BIA 1988). That definition was intended to serve as a uniform rule for determining when the myriad different procedures used by different states should be considered to result in a conviction for immigration purposes. The Ozkok definition consisted of a three-pronged test, and section 101(a)(48)(A) adopts verbatim the first two parts of this test. They provide that "conviction" means "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 had ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed." The third Ozkok prong, which Congress did not include in the statute, allowed certain "deferred adjudications" (procedures whereby a state court suspends criminal proceedings pending compliance with probation or other conditions) never to be considered convictions. Murillo-Espinoza argued that, by deleting the third prong of the Ozkok definition, Congress simply intended to ensure that all deferred adjudications are treated as convictions, unless and until the conviction is subsequently vacated.

The Ninth Circuit noted that the plain language of the statute "could well be interpreted" in this manner. However, the court found that the BIA's contrary interpretation in Roldan was a permissible construction of the statute and concluded that under Chevron U.S.A., Inc. v. Natural Res. Def. Council, the court was required to defer to the BIA on this issue. The court ruled that, despite the expungement, Murillo-Espinoza was deportable based on the aggravated felony and that therefore the court had no jurisdiction over the petition for review. The petitioner has filed a petition for rehearing in the case.

As noted above, the decision does not apply to certain state expungements of first-time drug offenses. In Lujan-Armendariz, the appeals court overturned the specific holding of Roldan. Ruling that the IIRIRA did not repeal the FFOA, the court cited equal protection grounds in holding that the BIA must recognize expungements granted to drug offenders under state laws, where the defendants could have been prosecuted under federal law and qualified for an expungement under the FFOA.

Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. Aug. 14, 2001).