Ninth Circuit Upholds Immigration Relief For First Time Drug Offenses

By Attorneys Robert Reeves and Jeremiah Johnson

Although most people know that there are severe immigration consequences for serious drug violations, many would be surprised to know that even relatively minor use of illicit drugs can destroy one’s eligibility for many immigration benefits.  Lawful permanent residents who are convicted of violating any law pertaining to controlled substances, other than a single offense of possession of thirty grams or less of marijuana, are deportable.  Moreover, a single drug conviction may make an alien ineligible to receive a visa or apply for relief from deportation.  However, under the Federal First Offender Act (“FFOA”), it is possible that certain individuals who have one, and only one, conviction for drug possession other than marijuana will also be able to stay in the United States with their friends and family.  Although the Immigration Service has tried to chip away at this form of relief, the Ninth Circuit Court of Appeals recently published a decision, Ramirez-Altamirano v. Mukasey, upholding this significant form of immigration relief for first time drug offenders.

Although state rehabilitative statutes generally do not strip a conviction of its immigration consequences, the federal rehabilitative statute known as the Federal First Offender Act does.  Specifically, the FFOA provides relief for first time defendants found guilty of drug possession.  For example, if the defendant has not previously been convicted of a federal or state controlled substance offense and has not previously been a beneficiary of the FFOA, the courts may place him on probation without entering a judgment of conviction.  Once probation has been completed (and the defendant has not violated any of the conditions of probation) the court will dismiss the proceedings without entering a judgment of conviction.  In Lujan-Armendariz the Ninth Circuit held that these deferred convictions may not be treated as convictions for immigration purposes when the proceedings are later dismissed under FFOA because Congress did not intend to create an immigration-based exception to the FFOA.  Moreover, and perhaps more importantly, the Ninth Circuit further held that because the FFOA provides immigration relief for first-time defendants found guilty of drug possession in federal court, the Equal Protection Clause requires a parallel exception for similarly situated defendants prosecuted in state court.  As such, it was possible to mitigate the immigration consequences of certain drug convictions by expunging or vacating the conviction in state criminal court.   

Despite efforts from the Immigration Service, the Ninth Circuit has recently upheld the holding of Lujan-Armendariz.  In Ramirez-Altamirano, the alien’s set-aside conviction for possession of drug paraphernalia had been expunged, and under Lujan- Armendariz, it could not be considered for denial of relief for immigration purposes. The Ninth Circuit further noted that there is no rational basis for treating individuals found guilty of possessing drug paraphernalia more harshly than those found guilty of possessing drugs.  Indeed, equal protection principles require treating state drug possession convictions as “expunged” for immigration purposes even when the convictions retain certain consequences under state law.  The relevant question is whether the person involved, who received relief under a state rehabilitative statute, could have received relief under the  federal statute.

In answering, the Court held that an alien cannot be deemed “convicted” for immigration purposes if he can demonstrate that 1) the conviction was his first offense; 2) he had not previously been accorded first offender treatment; 3) his conviction was for possession of drugs, or an equivalent or lesser charge such as possession of drug paraphernalia; and 4) he received relief under a state rehabilitative statute. 

In most cases, expungements do not remove criminal offenses from one’s record for immigration purposes, although post-conviction relief is available in certain cases. All of us are human and have made mistakes in the past.  For those with a history of drug use or convictions, these mistakes can be costly.  If you or your family member has any drug convictions, it is vital that you seek advice from a knowledgeable immigration attorney prior to traveling oversees or applying for any immigration benefit.