Nunez-Reyes v. Holder (9th Cir. 7/14/2011)

If a non-citizen is convicted of simple possession of a controlled substance under federal law, he or she will get a second chance. This is due to the Federal First Offender Act (“FFOA”), which mandates that a federal conviction for simple drug possession that has been successfully expunged shall not be considered a “conviction” for immigration purposes. That means that a non-citizen convicted by the federal government of simple drug possession and who has had his or her conviction expunged would not be subject to being deported. Many states, such as California, have laws similar to the FFOA. That is, a conviction for simple drug possession may be expunged if the person completes a mandatory drug treatment program. For all intents and purposes, an expunged conviction never existed.

In the prior ten years, the Ninth Circuit court of appeals has treated the FFOA and its states equivalents the same. A state simple drug possession conviction that has been expunged is not a “conviction” for immigration purposes. With the Nunez-Reyes decision, however, all this will stop. The court, sitting en banc, ruled that an expunged state drug possession conviction may be considered a “conviction” for immigration purposes. The immigration statutes define “convictions” broadly. A non-citizen is subject to removal for certain types of convictions, even if the conviction is expunged. This is a harsh result because most states consider an expunged conviction to be a non-event. Meaning, it never happened. The FFOA has been the saving grace in federal law because it specifically prohibits an expunged federal drug possession conviction to be a basis for disqualifying a non-citizen for immigration benefits, or making such person liable for removal.

In the past, the Ninth Circuit has treated the FFOA and similar state statutes the same, on account of equal protection grounds. The court reasoned that it would violate the Equal Protection clause of the U.S. Constitution to give persons who violate federal drug possession laws a second chance, but to deny persons who are convicted for the same exact conduct under state laws different. After ten years, the court overruled itself and decided that it no longer accepted its own equal protection reasoning. From the date of the decision, all non-citizens who have been convicted of a state drug possession offense, even if such conviction has been expunged, are removable. Non-citizens convicted under federal drug laws, however, are still protected by the FFOA. This creates the difficult to understand situation where two persons committing the same exact offense can suffer different consequences for the conviction, depending on which government authority convicted him or her.