Landmark Court Decision Rejects INS’ Position Regarding Expungements of Criminal Convictions

In a landmark decision, the 9th Circuit Court of Appeals on Monday, August 1, 2000 overturned the controversial 1999 decision of the Board of Immigration Appeals (BIA) in Matter of Roldan, Int. Dec. 3377. As a result of this momentous defeat in court, the Department of Justice (DOJ) and the Immigration and Naturalization Service (INS) will be again required to give full effect to the Federal First Offender Act or equivalent state rehabilitative statutes such as expungements. Lujan-Armendariz v. INS, 2000 Daily Journal D.A.R. 8469. This is a great victory for all immigrants, especially for those otherwise law-abiding individuals with criminal convictions who are currently in or will be subject to removal proceedings.

At issue in Roldan is the definition of “conviction” as it pertains to immigration law. There, the BIA abandoned the longstanding rule that “when a conviction or finding of guilt has been expunged, it may not thereafter be used as the basis for removal.” This rather harsh treatment foreclosed relief for many immigrants facing removal, including those with extensive family ties to the United States whose conviction had been subsequently vacated or set aside through state rehabilitative statutes. Most of the immigrants detrimentally affected by this sudden change in the law were long-time residents of the United States with a minor criminal conviction.

In its decision overturning Roldan, the Court of Appeals explicitly rejected the BIA’s rational noting that “the BIA is not free to adopt any policy it chooses with respect to state rehabilitative laws, regardless of its arbitrariness or lack of constitutionality.” After a lengthy discussion, the Court found that the BIA in it’s application of the 1996 law, could not in effect repeal another section of law which had not been explicitly mentioned or repealed by Congress. It is important to note that the Court’s decision is limited to those who commit first time simple drug possession offenses that are expunged and it remains to be seen whether the expungement of other convictions will be treated as not to subject the immigrant to removal. Nevertheless, the Court’s decision is clearly a triumph for all of us who believe that deportation is an excessively harsh punishment for certain individuals, especially those with a minor conviction that has been vacated or set aside long ago as a result of a judge having found the individual rehabilitated. To find otherwise would undermine the concept of rehabilitative statutes and render it meaningless in the immigration context.