BIA Says Expungements Are Non-Effective For Immigration Purposes

On March 3, 1999, the Board of Immigration Appeals (BIA) decided in In re Mauro ROLDAN, that under the statutory definition of “conviction” as provided in the Immigration and Nationality Act, no effect is to be given in immigration proceedings to a state action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute. This means that an alien remains “convicted” for immigration purposes even though a state action erases the determination of guilt through a rehabilitative procedure. The BIA’s reasoning for this decision is due to the belief that until now, aliens have generally been allowed to escape immigration consequences for their criminal misconduct once the conviction has been “expunged.” The general rule was that a criminal conviction that has been expunged would not support an order of deportation. This is no longer the case.

As a result of this decision, those who have had their criminal convictions expunged or vacated, will still be considered “convicted” in their immigration proceedings. This means that even first offenders who have not previously been convicted of violating any federal or state laws, if pled to or been found guilty, will not be given leniency with respect to their “convicted” status for immigration purposes.

We, at Reeves and Associates, find this decision to be unconstitutional because failing to give effect to expungements in immigration proceedings will result in unequal treatment of aliens and citizens. An alien who has had his or her conviction expunged through rehabilitative treatment, is subject to additional consequences as a result of the misconduct. In order for a state judge to expunge a criminal conviction, the judge had to have found that the person is rehabilitated and has not broken any further laws. The Roldan decision proposes to continue to punish an alien even after he’s paid his debt to society. For one mistake, a person should not be robbed of the opportunity to rehabilitate himself, and he should not be subjected to further severe consequences after a state action has found the conviction to be erased.

There is recourse, however, because this matter will most likely be taken up on appeal to the Ninth Circuit Court of Appeals. It is our hope at Reeves and Hanlon that the Ninth Circuit will overturn Roldan and recognize the validity of expungements and other rehabilitative statutes. In order for that to have any effect on your case, you will have to raise the issue of giving effect to expungements “on the record.” Therefore, you will need an attorney who is familiar with both immigration and criminal defense laws and how they affect aliens. We, at Reeves and Hanlon, will continue doing everything legally possible to protect our clients’ rights.