Matter of Salazar-Regino: BIA Rules That State Deferred Adjudication of First-Time Drug Offense Does Not Eliminate Effect of Conviction for Immigration Purposes

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

MATTER OF SALAZAR-REGINO: BIA RULES THAT STATE DEFERRED ADJUDICATION OF FIRST-TIME DRUG OFFENSE DOES NOT ELIMINATE EFFECT OF CONVICTION FOR IMMIGRATION PURPOSES
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

The Board of Immigration Appeals has issued an en banc precedent decision finding that a Texas deferred adjudication of guilt for felony possession of a controlled substance must be treated as an aggravated felony conviction for immigration purposes. The decision reaffirms Matter of Roldan, Int. Dec. 3377 (BIA 1999), and declines to apply outside the Ninth Circuit the ruling in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (which overruled Roldan as to convictions that could have been given first offender treatment under federal law had they been prosecuted federally). The new ruling also holds that the BIA's decision in Matter of K-V-D-, Int. Dec. 3422 (BIA 1999) (finding that a drug conviction must be punishable as a felony under federal law in order to constitute an aggravated felony), does not apply in the Fifth Circuit, in light of a recent decision of that court.

The respondent in this case, a Ms. Salazar, is a Mexican national who first entered the U.S. at the age of six and had resided in the U.S. as a lawful permanent resident for nearly twenty years at the time she was arrested in Texas on a charge of possession of marijuana. In 1997 she pled guilty to the charge and received a deferred adjudication of guilt, under which she was placed on probation.

At her removal hearing in 1999, Salazar contended that her deferred adjudication did not constitute a "conviction" under section 101(a)(48)(A) of the Immigration and Nationality Act. The immigration judge rejected this argument, ruling that under Matter of Punu, Int. Dec. 3364 (BIA 1998), a Texas deferred adjudication constitutes a conviction. However, the IJ found that the conviction was not an "aggravated felony" because it would not amount to a felony under comparable federal law. The IJ also found that Salazar was not deportable under INA section 237(a)(2)(B) (for having a controlled substance conviction) because had she been prosecuted under federal law she would have been eligible for first offender treatment under the Federal First Offender Act (FFOA), 18 U.S.C. section 3607(a). The Immigration and Naturalization Service appealed this decision.

While this appeal was pending, the BIA issued its decision in Roldan. In that decision, the BIA found 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 other state procedures that erase a defendant's record of guilt for rehabilitative purposes. The BIA further concluded that the statute bars it from giving effect to expungements even where the conviction could have been expunged under the FFOA had the respondent been prosecuted federally.

The BIA's decision in Roldan was overturned by the Ninth Circuit in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). In that decision, the court found the BIA's conclusion that the IIRIRA generally eliminated the immigration effect of expungements and other state rehabilitative procedures to be "highly unpersuasive," but the court resolved the appeal on other grounds. The court concluded that the IIRIRA did not repeal the FFOA, which provides that federal first offender treatment of a first-time drug offense eliminates the effects of the conviction for all purposes. The court further found that the constitutional guarantee of equal protection requires that the BIA give effect to state expungements of drug convictions, where first offender treatment would have been available had the respondent been prosecuted federally.

In the instant case, the BIA reaffirmed Roldan and declined to apply the Ninth Circuit's ruling in Lujan-Armendariz to cases arising outside of the Ninth Circuit. A majority of the BIA concluded that this result is required by the statutory definition of "conviction." Since this case arose in the Fifth Circuit, the BIA declined to treat the conviction as if it were subject to the FFOA.

The BIA also revisited its ruling in Matter of K-V-D- and decided not to apply that decision in the Fifth Circuit. In K-V-D-, the BIA concluded that, in order for a state drug conviction to be considered a "trafficking" crime so as to constitute an "aggravated felony" for immigration purposes, it must be prosecutable as a felony were it to be charged federally. The BIA reached this conclusion despite Fifth Circuit precedent finding that state convictions that could not be prosecuted as federal felonies constitute aggravated felonies for purposes of triggering enhancements under federal sentencing guidelines. The BIA reasoned that the distinction between sentence enhancement and deportability may justify different results, noting that other circuits have so reasoned.

However, in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2000), another ruling under the federal sentencing guidelines, the Fifth Circuit expressly disapproved of the BIA's reasoning in K-V-D-. In light of this decision, the BIA has now decided not to apply K-V-D- in cases arising in the Fifth Circuit. Accordingly, even though Salazar's state conviction for possession of marijuana could not have been prosecuted federally as a felony, the BIA concluded that it constitutes an aggravated felony, barring her from eligibility for cancellation of removal.

Matter of Salazar-Regino, 23 I. & N. Dec. 223, Int. Dec. 3462 (BIA 2002).