MARROQUIN

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              In re Erick MARROQUIN-Garcia, Respondent
                          File A90 509 015 - Los Angeles
                  Decided by Attorney General January 18, 2005
                       Decided by Board February 21, 1997
                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals
(1) The federal definition of “conviction” at section 101(a)(48)(A) of the Immigration and
  Nationality Act, 

(a)(48)(A) (2000), encompasses convictions, other than
  those involving first-time simple possession of narcotics, that have been vacated or set
  aside pursuant to an expungement statute for reasons that do not go to the legal propriety
  of the original judgment, and that continue to impose some restraints or penalties upon the
  defendant’s liberty.
(2) An alien whose firearms conviction was expunged pursuant to section 1203.4 of the
    California Penal Code has been “convicted” for immigration purposes.
FOR APPLICANT: Jay J. Tanenbaum, Esquire, Sherman Oaks, California
FOR DEPARTMENT OF HOMELAND SECURITY: Joe D. Whitley, General Counsel


                   BEFORE THE ATTORNEY GENERAL
                           (January 18, 2005)
   In 1997, the Board of Immigration Appeals requested that its decision in In
re Marroquin, A90 509 015 (BIA Feb. 21, 1997), be certified for review
pursuant to the provision now codified at 

(h)(1)(ii) (2004).
The request for certification is granted and, for the reasons set forth in the
accompanying opinion, the decision of the BIA is reversed and remanded for
further proceedings.

                                       OPINION
   The Board of Immigration Appeals (“BIA” or “Board”) referred its decision
in this matter for my review pursuant to 

(h)(1)(ii) (1997).1 In
its decision, the BIA determined that a new federal definition of “conviction”
did not undermine Attorney General precedent that held that a person
convicted of a firearms offense under state law is not subject to deportation
1
    Now 

(h)(1)(ii) (2004).

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under section 241(a)(2)(C) of the Immigration and Nationality Act (“INA”),

(a)(2)(C) (1994),2 if that conviction has been subsequently
“expunged.” Pending my decision, the BIA reversed itself and concluded that
the new federal definition of “conviction” means that an alien remains
convicted notwithstanding a subsequent state action to expunge the
conviction. See In re Roldan, 

 (Mar. 3, 1999)
(“Roldan”). The Ninth Circuit subsequently reversed the BIA’s decision in
Roldan with respect to aliens convicted of first-time drug possession offenses
under state law. See Lujan-Armendariz v. INS, 

 (9th Cir.
2000). The Ninth Circuit’s decision does not affect the applicability of
Roldan to firearms offenses, but, in light of the Ninth Circuit’s decision, I find
it appropriate to certify the Board’s decision and set forth clearly the
Executive branch’s interpretation of the relevant statute.
   For the reasons stated below, I find that the new federal definition of
“conviction” means that for a conviction not involving first-time simple
possession of narcotics, an alien remains convicted, and thus removable under
current section 237 of the INA, notwithstanding a subsequent state action to
vacate or set aside the conviction. The BIA’s decision is reversed and
remanded.

                                            I.
                                           A.
   Erick Marroquin-Garcia entered the United States without inspection in
1980. He adjusted to the status of lawful permanent resident alien pursuant to
section 245A of the INA in December of 1989. See 8 U.S.C. § 1255a (1994).
He pleaded guilty to unlawful possession of a firearm under California law on
October 22, 1990. He was convicted in state court and placed on 5 years’
probation. The state court ordered, as conditions of probation, that
Marroquin-Garcia spend 365 days in the county jail and pay $100 restitution
and the costs of his probation. See In re Marroquin, A90 509 015, slip op. at
2 (BIA Feb. 21, 1997) (“Marroquin”).
   The Immigration and Naturalization Service (“INS”) instituted deportation
proceedings against Marroquin-Garcia on the basis of his state firearms
conviction. On September 13, 1994, an Immigration Judge ordered
Marroquin-Garcia deportable pursuant to what was then section 241(a)(2)(C)
of the INA. See Marroquin, at 2. At that time, section 241(a)(2)(C) of the
2
  After the initial deportation order was entered in this manner, former section 241 of the
Immigration and Nationality Act was redesignated as section 237 by section 305(a)(2) of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 

 Stat. 3009-546, 3009-598. The redesignated provision has been codified, with
modifications that are not relevant here, as section 1227 of title 8, United States Code.


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INA stated in pertinent part that “[a]ny alien who at any time after entry is
convicted under any law of purchasing . . . possessing, or carrying . . . any
weapon, part, or accessory which is a firearm or destructive device (as defined
in section 921(a) of title 18,) in violation of any law is deportable.” 

(a)(2)(C) (1994).
   During the pendency of his appeal to the BIA, Marroquin-Garcia filed a
motion in Superior Court for the County of Los Angeles for relief pursuant to
section 1203.4(a) of the California Penal Code. Section 1203.4(a) provides,
inter alia, that
     [i]n any case in which a defendant has fulfilled the conditions of probation for the
     entire period of probation, or has been discharged prior to the termination of the
     period of probation, or in any other case in which a court, in its discretion and the
     interests of justice, determines that a defendant should be granted the relief available
     under this section, the defendant shall at any time after the termination of the period
     of probation, if he or she is not then serving a sentence for any offense, on probation
     for any offense, or charged with the commission of any offense, be permitted by the
     court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea
     of not guilty . . . [and] the court shall thereupon dismiss the accusations or information
     against the defendant and except as noted below, he or she shall thereafter be released
     from all penalties and disabilities resulting from the offense of which he or she has
     been convicted, except as provided in Section 13555 of the Vehicle Code.

See 

(a) (West Supp. 2004). The Superior Court
granted Marroquin-Garcia’s motion for relief under this expungement statute
on December 18, 1994, and ordered Marroquin-Garcia’s “felony charge
reduced . . . to a misdemeanor,” his plea of guilty set aside and vacated, and
the complaint against him dismissed. See Marroquin, at 2.
   Relying on the BIA’s decision in In re Luviano, 

 (BIA
1996) (“Luviano”), Marroquin-Garcia argued on appeal to the BIA that the
expungement of his conviction meant that he had not been “convicted” for
purposes of section 241(a)(2)(C) of the INA. As discussed more fully below,
the BIA had held in Luviano that prior Attorney General opinions compelled
the conclusion that an alien whose conviction for a non-narcotics related
offense had been expunged pursuant to section 1203.4(a) of the California
Penal Code had not been “convicted” for purposes of section 241(a)(2)(C) of
the INA. See Luviano, 

 (citing In re Ibarra-Obando,

 (BIA 1966; A.G. 1967); In re G-, 

 (BIA
1960; A.G. 1961). At the time the BIA was deciding Marroquin, the Board’s
decision in Luviano was pending before the Attorney General. In light of a
new federal definition of “conviction,” enacted in section 322(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

 Stat. 3009-546, 3009-628, the BIA decided
Marroquin-Garcia’s appeal rather than wait for the Attorney General’s
decision in Luviano. In Marroquin, the BIA concluded that the new federal
definition of conviction did not affect the Board’s decision in Luviano and

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therefore that decision was still controlling. Hence, the BIA found,
Marroquin-Garcia could not be deported based on the firearms offense. See
Marroquin, at 6.
   Before addressing the merits of the Board’s decision, I will first review the
relevant history of this issue in greater detail.
                                             B.
   Prior to the enactment of the new federal statutory definition, the INA did
not define “conviction.” The federal courts, the Attorney General, and the
BIA were therefore provided with little legislative guidance as to how to
interpret the statutory provisions that subjected to deportation those persons
who had been “convicted” of certain types of offenses. Two distinct lines of
Attorney General precedent developed that addressed the effect of an
expungement on a conviction that would otherwise provide a basis for an
order of deportation under the federal immigration laws. Before discussing
these lines of precedent, however, I must clarify the term “expungement.”
Throughout this opinion I will use the term expungement to refer to the
process of clearing a defendant’s record of a prior conviction. This
expungement is achieved generally through two means: either a statute
permits a deferred adjudication of a conviction such that a judgment is never
entered, or a court vacates or sets aside a judgment of conviction from the
books under a rehabilitative statute. As the Ninth Circuit has described the
difference,
      [under a] “vacatur” or “set-aside” [statute], a formal judgment of conviction is entered
      after a finding of guilt, but then is erased after the defendant has served a period of
      probation or imprisonment and his conviction is ordered dismissed by the judge. . . .
      [Under a] “deferred adjudication” [statute], no formal judgment of conviction or guilt
      is ever entered. Instead, after the defendant pleads or is found guilty, entry of
      conviction is deferred, and then during or after a period of good behavior, the charges
      are dismissed and the judge orders the defendant discharged.

Lujan-Armendariz v. INS, 

, 735 n.11 (9th Cir. 2000).
   Returning to the Attorney General precedents, first, there were decisions
that held that aliens who had been convicted of what section 241(a)(4) of the
INA termed “crimes of moral turpitude,” such as forgery or fraud, were not
subject to deportation if their convictions had been expunged. See In re
Ibarra-Obando, supra; In re G-, supra. Second, there was an Attorney
General decision that held that aliens who had been convicted of what section
241(a)(11) termed “narcotics offenses,” such as the distribution of marijuana,
were subject to deportation even if their conviction had been expunged. See
In re A-F-, 

 (BIA, A.G. 1959).3 In 1970, Congress carved out
3
    There, the Attorney General held that Congress’s progressive strengthening of the
                                                                              (continued...)

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a narrow exception for simple federal possession offenses when it enacted the
Federal First Offender Act (“FFOA”). The FFOA applies only to first-time
drug offenders who are guilty only of simple possession. It expunges such
convictions (after the successful completion of a probationary period) and was
intended to lessen the harsh consequences of certain drug convictions,
including their effects on deportation proceedings. Under the FFOA, no legal
consequences may be imposed following expungement as a result of the
defendant’s former conviction. See 

 (2000). After
considering the effect of the FFOA, the BIA announced an exception to the
holding of In re A-F-, finding that a first-time simple drug possession
offender, whose conviction was set aside pursuant to a state statute, would not
be deported if he or she would have been eligible for treatment under the
FFOA had the charges been filed in federal court. See In re Manrique,

 ( BIA 1995); In re Werk, 

 (BIA
1977).
   At the time that the BIA decided Luviano, neither of the existing lines of
administrative precedent addressed directly the circumstance at issue in
Luviano, which concerned the effect of an expungement on a person who had
been convicted of what the former section 241(a)(2)(C) termed a “firearms”
offense. Nevertheless, the BIA concluded in Luviano that the prior Attorney
General opinions had established a rule that applied to all convictions that
were not narcotics-related and that had been expunged. The BIA concluded
that this rule precluded such convictions from serving as the basis for an order
of deportation.
   After the BIA issued its decision in Luviano, Congress enacted section
322(a) of IIRIRA, which amended the INA to define the term “conviction” for
the first time. The new definition provides:
       [t]he term “conviction” means with respect to an alien, a formal judgment of guilt of
       the alien entered by a court or, if adjudication of guilt has been withheld, where
          (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty
          or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
          (ii) the judge has ordered some form of punishment, penalty, or restraint on the
          alien’s liberty to be imposed.

IIRIRA § 322(a), 110 Stat. at 3009-628; INA § 101(a)(48)(A), 

(a)(48)(A) (2000). Because Congress passed the new federal statutory
definition during the pendency of respondent’s appeal, the new statutory
definition of “conviction” applies here. See IIRIRA, § 322(c), 110 Stat. at
3
    (...continued)
deportation laws with respect to aliens who had committed narcotics offenses that would
subject them to deportation under what was then section 241(a)(11) of the INA revealed
Congress’s intent to subject such aliens to deportation even if their convictions had been
technically “expunged” pursuant to section 1203.4(a) of the California Penal Code. See id.


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3009-629 (explaining that the new statutory definition shall apply “to
convictions . . . entered before, on, or after the date of the enactment of
[IIRIRA]”). On May 31, 1996, after the enactment of IIRIRA, the
Commissioner of the INS referred the Board’s decision in Luviano to the
Attorney General.
   The Attorney General’s review of the Luviano decision was pending at the
time Marroquin-Garcia’s appeal came to the BIA, but in light of the new
federal definition in IIRIRA, the BIA concluded that it should decide the
merits of Marroquin-Garcia’s appeal, rather than wait for the Attorney
General’s decision in Luviano. In construing this new federa1 definition, the
BIA determined that the statutory text did not make clear whether, or to what
extent, Congress intended to treat expunged convictions, of any type, as
“convictions” for purposes of the immigration laws. The BIA therefore turned
to the legislative history. It relied primarily on a joint explanatory statement
in the conference report to the IIRIRA that addressed the new definition. See
Marroquin, at 4-5. The joint explanatory statement made particular mention
of the BIA’s pre-Luviano decision in In re Ozkok, 

 (BIA
1988), in which the BIA had established rules for determining whether a state
court’s decision to withhold an adjudication of guilt prior to the entry of a
formal judgment of conviction—as opposed to vacating or setting aside a
conviction already entered—precludes a judge’s or jury’s finding of guilt, or
a defendant’s plea of guilty, from being deemed a “conviction” under the
INA.4 See Joint Explanatory Statement of the Committee of Conference, H.R.
Conf. Rep. No. 104-828 at 199, 223. The BIA noted that, in contrast to the
joint explanatory statement’s relatively detailed discussion of Ozkok, “there
was no discussion whatsoever” of the BIA and Attorney General decisions
that had established the rules for determining whether formal judgments of
conviction that had been entered and subsequently vacated or set aside
constituted “convictions” under the INA. See Marroquin, at 5.
   The BIA concluded from the joint explanatory statement’s express
reference to Ozkok, and its failure to mention the other type of expungement
decisions, that Congress did not intend for the INA’s new definition of
“conviction” to supplant Luviano’s rule for determining whether a state court
conviction that had been formally entered, but subsequently vacated or set
aside, constituted a “conviction” under the INA. See 

 The BIA determined

4
   Over the years, the BIA had wrestled with the question of when a “conviction” occurs
under state statutes providing for varying degrees of deferred adjudication. It settled on a
three-factor definition in In re Ozkok. Under Ozkok, an alien was considered “convicted”
when: (1) the alien had been found guilty or pleaded guilty or nolo contendre or had
admitted sufficient facts to warrant a finding of guilty; (2) the judge had ordered some form
of punishment; and (3) a judgment of guilt could be entered without further proceedings
relating to guilt if the person violated terms of his probation or other court order. See Ozkok,

.

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that the new statutory definition of “conviction” simply codified and refined
the rules that the BIA had set forth in In re Ozkok, for determining whether,
in the circumstance in which a formal judgment of conviction has been
withheld prior to entry, a finding of guilt constitutes a “conviction” under the
INA. See 

 The BIA therefore held that, notwithstanding the new federal
statutory definition of “conviction,” Luviano continued to control when a
conviction had been vacated or set aside, and thus Marroquin-Garcia had not
been “convicted” for purposes of section 241(a)(2)(C) of the INA because his
conviction for a non-narcotics related offense had been set aside pursuant to
the same California expungement law in Luviano. See id. at 6.
   The BIA referred this matter for my review as well. “If the Attorney
General ultimately determines that a conviction for a firearms offense survives
for immigration purposes despite a state procedure for expungement, the
[Immigration and Naturalization] Service is free to reinstate deportation
proceedings against the respondent here,” the BIA explained. Id. “At
present,however, the [Immigration and Naturalization] Service cannot seek
the respondent’s deportation under section 241(a)(2)(C) of the Act on the
basis of a criminal case in which the plea of guilty has been set aside and
vacated, and the charges have been dismissed.” Id.
   After the BIA referred its decision in this case to me, the Board issued its
opinion in 

 In that case, the BIA considered whether an
expunged narcotics conviction could form the basis for an order of
deportation in light of the new definition of conviction in IIRIRA. Although
Roldan appears to involve a deferred adjudication,5 the BIA found “it
necessary to reconsider . . . the effect to be given to any state action, whether
it is called setting aside, annulling, vacating, cancellation, expungement,
dismissal, discharge, etc., of the conviction, proceedings, sentence, charge, or
plea, that purports to erase the record of guilt of an offense pursuant to a state
rehabilitative statute,” 

. The BIA determined that
Congress intended to establish a uniform federal rule that precluded the
recognition of subsequent state rehabilitative expungements of convictions.
More precisely, the BIA found that because Congress clearly intended that an
alien with a deferred adjudication should be considered convicted, Congress
also must have intended that an alien with a “technical erasure of the record
of conviction” should be considered convicted. 

. As the BIA stated,


5
   See Roldan, 

 (“the [state court] withheld adjudication of judgment,
sentenced him to 3 years’ probation and imposed several monetary penalties”); 

 (“the
respondent filed a motion in the Idaho state court for early release from probation and
dismissal of the charge in accordance with the withheld judgment”); id. at 530 (Bd. Member
Villageliu, dissenting in part and concurring in part) (characterizing majority’s discussion
of IIRIRA’s definition in relation to vacated convictions as dicta). But see id. at 513
(describing respondent as “a first offender whose guilty plea was vacated”).

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     [i]t simply would defy logic for us, in a case concerning a conviction in a state which
     effects rehabilitation through the technical erasure of the record of conviction, to
     provide greater deference to that state’s determination that a conviction no longer
     exists. Under either scenario, the state has decided that it does not consider the
     individual convicted based on the application of a rehabilitative statute.
     . . . Congress clearly does not intend that there be different immigration consequences
     accorded to criminals fortunate enough to violate the law in a state where
     rehabilitation is achieved through the expungement of records evidencing what would
     otherwise [have been] a conviction under section 101(a)(48)(A), rather than in a state
     where the procedure achieves the same objective simply through deferral of judgment.

 Based on its examination of the statutory text and legislative history, the
BIA concluded that it would “interpret the new definition to provide that an
alien is considered convicted for immigration purposes upon the initial
satisfaction of the requirements of section 101(a)(48)(A) of the Act, and that
he remains convicted notwithstanding a subsequent state action purporting to
erase all evidence of the original determination of guilt through a
rehabilitative procedure.” Id. at 523. The BIA qualified its holding by noting
that its decision did not address the situation where a state court vacates a
conviction on the merits or on grounds relating to a statutory or constitutional
violation. See id. The BIA thus overruled Luviano and Marroquin. See id.
at 512.
   In Lujan-Armendariz, the Ninth Circuit considered the BIA’s decision in
Roldan. The court was skeptical of the BIA’s conclusion that the new
definition covered vacated or set-aside convictions as well as deferred
adjudications. See 

. The Ninth Circuit noted that the
amendment said nothing about vacated convictions and could well be
interpreted to establish only when a conviction occurred without determining
what might be the effect of a later expungement. See 

. The court
did not decide this issue, however, and concluded instead that because the
new definition in IIRIRA did not repeal the FFOA, equal protection principles
mandated that aliens whose convictions had been expunged pursuant to state
law were still entitled to the same treatment as those whose convictions had
been expunged under federal law. See 

. Therefore, an alien
could not be deported based on a state conviction of simple possession where
that conviction was expunged by the state, if a federal simple possession
conviction could have been expunged under the FFOA. In other words,
because the new definition of conviction did not repeal the FFOA, if an
alien’s conviction for a simple possession narcotics offense was expunged
under a state equivalent of the FFOA, that conviction could not serve as the
basis for an order of deportation, because had the alien received the
expungement under the FFOA, that conviction could not form the basis for
the order of deportation. See 

.
   With this history in mind, I now turn to the question of the proper
interpretation of “conviction,” at least with respect to non-narcotics cases.

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                                            II.
                                            A.
   As set forth above, the relevant statutory provision defines a “conviction”
to be “a formal adjudication of guilt of the alien entered by a court[.]” INA
§ 101(a)(48)(A), 

(a)(48)(A). This definition, though broad,
is clearly not intended to encompass convictions that have been formally
entered but subsequently reversed on appeal or in a collateral proceeding for
reasons pertaining to the factual basis for, or procedural validity of, the
underlying judgment. Cf. In re P-, 

 (A.G. 1961) (concluding
that conviction set aside pursuant to writ of coram nobis for a constitutional
defect could not serve as basis for order of deportation). Subsequently
set-aside convictions of this type fall outside the text of the new definition
because, in light of the subsequent proceedings, they cannot be considered
formal adjudications of the alien’s guilt.
   This same logic, however, suggests that a different conclusion is warranted
for convictions such as the one at issue in this case. As was noted in dissent
in Luviano, state laws that authorize the subsequent expungement of a
conviction typically do so for reasons that are entirely unrelated to the legal
propriety of the underlying judgment of conviction—reasons, in other words,
that are unrelated to concerns about the factual basis for, or the procedural
validity of, the conviction. See Luviano, 21 I&N Dec. at 247-48 (Hurwitz,
dissenting). These state expungement laws authorize a conviction to be
expunged in order to serve rehabilitative ends and without reference to the
merits of the underlying adjudication of guilt. Id. Such expunged convictions
would appear, therefore, to survive as formal adjudications of guilt entered by
a court.
   Here, the state expungement law that provided relief for Marroquin-Garcia
permits state courts to provide relief to all convicted defendants who seek it
and have either completed their terms of probation or have been discharged
prior to the termination of their probation. See 

(a).6
It affords a remedy that is readily distinguishable from, for example, an
appellate court’s reversal of a conviction on the merits, which is available only
to persons who can demonstrate that the entry of the initial conviction was in
error. Consistent with this conclusion, section 1203.4(a) of the California
Penal Code does not, for purposes of California law, “eradicate a conviction
or purge [the] defendant of the guilt established thereby.” See Adams v.
County of Sacramento, 

 (Cal. Ct. App. 1991); accord

6
  Section 1203.4(a) of the California Penal Code also authorizes state courts to provide the
same relief in any “case in which a court, in its discretion and the interests of justice,
determines that a defendant should be granted the relief available under this section.” 

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 (explaining that the provision “was never intended to obliterate the fact
that defendant has been ‘finally adjudged guilty of a crime.’”) (quoting Meyer
v. Board of Medical Examiners, 

 (1949)). Indeed, a defendant
who receives relief from the California provision still remains subject to
certain state law civil disabilities that result from the initial entry of a formal
adjudication of guilt, i.e., the entry of a judgment of conviction.7
   For these reasons, the relief provided by the California expungement law
does not reflect a judgment about the merits of the underlying adjudication of
guilt. It does not provide relief equivalent to a decision on appeal (or in a
collateral proceeding) that reverses or vacates a judgment of conviction for
insufficiency of the evidence or for procedural errors at trial. It serves only
to ameliorate certain of the punitive consequences that attend a court’s legally
valid finding of guilt. Even though the initial judgment of conviction has
been set aside pursuant to section 1203.4(a), the merits of the underlying
judgment have not been called into question and adverse legal consequences
continue to follow from it. Thus, that judgment would still appear to fall
squarely within the plain language of the new federal statutory definition of
“conviction,” which defines a “conviction” under the INA to be “a formal
judgment of guilt of the alien entered by a court.” INA § 101(a)(48)(A),

(a)(48)(A).
   The conclusion that the phrase “a formal judgment of guilt of the alien
entered by a court” should be construed to encompass, by its plain terms,
convictions that have been vacated or set aside pursuant to expungement
statutes like section 1203.4(a) finds additional support in the treatment that the
new federal statutory definition of “conviction” accords an “adjudication of
guilt [that) has been withheld.” 

 The new federal statutory definition of
7
    Section 1203.4(a) of the California Penal Code provides that “in any subsequent
prosecution of the defendant for any other offense, the prior conviction may be pleaded and
proved and shall have the same effect as if probation had not been granted or the accusation
or information dismissed.” 

(a). In addition, the provision states
that “the order [granting relief] does not relieve [the defendant] of the obligation to disclose
the conviction in response to any direct question contained in any questionnaire or
application for public office, for licensure by any state or local agency, or for contracting
with the California State Lottery.” 

 Finally, the provision provides that “[d]ismissal of
an accusation or information pursuant to this section does not permit a person to own,
possess, or have in his or her custody or control any firearm capable of being concealed
upon the person or prevent his or her conviction under Section 1202.1.” 

 California law
further provides that numerous professional and business licenses may be denied, revoked,
or suspended as a result of a conviction, notwithstanding that fact that it has been expunged
pursuant to section 1203.4(a). See Luviano, 21 I&N Dec. at 246-47 (Hurwitz, dissenting);
see also Ramirez-Castro v. INS, 

 (9th Cir. 2002) (noting that
“California Penal Code section 1203.4(a) provides only a limited expungement even under
state law”); Garcia-Gonzales v. INS, 

 (9th Cir. 1965) (explaining that it
is “sheer fiction to say that the conviction is ‘wiped out’ or ‘expunged’” by section
1203.4(a)).

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“conviction” clearly provides that a defendant who has been found guilty by
a judge or jury, or has pleaded guilty, has been “convicted” for purposes of the
INA if the judge has “withheld a formal adjudication of guilt” but has
nevertheless imposed penalties or restraints upon the defendant’s liberty. 

This part of the new federal statutory definition of “conviction” ensures that
a defendant who has been found guilty of unlawful conduct, and has been
punished for that conduct, will not avoid deportation by utilizing a state court
procedure that spares the defendant from technically being adjudged
“convicted.”
   The congressional determination that even some state court decisions to
withhold adjudications of guilt prior to the entry of a judgment of conviction
should be counted as convictions under the INA supports the more modest
conclusion that the phrase “a formal judgment of guilt of the alien entered by
a court” encompasses judgments of conviction that, at least in the ordinary
case, have been entered but then vacated or set aside for reasons that do not
go to the legal propriety of the original judgment and that continue to impose
some restraints or penalties upon the defendant’s liberty. A conviction that
has been vacated or set aside pursuant to a law like the California statute
ordinarily does not differ in substance from the type of state court decision to
withhold an adjudication of guilt prior to entry that Congress has explicitly
deemed to constitute a “conviction.” The relief that the court provides in each
type of case does nothing to call into question the propriety of the underlying
adjudication of guilt.
   Indeed, this case well illustrates the point.                  Even though
Marroquin-Garcia’s conviction has been set aside under section 1203.4(a), the
underlying judgment of guilt still counts as a “conviction” under California
law, and he not only has been subjected to punishment as a consequence of
that conviction but also remains subject to various civil disabilities as well.
The existence of these continuing legal disabilities certainly suggests that, for
purposes of determining whether the initial adjudication of guilt may serve as
the basis for an order of deportation, the expungement in question should not
be equated with a court’s setting aside a conviction on the merits in a
collateral proceeding or on appeal.
   Because even an “adjudication of guilt [that] has been withheld” may
constitute a “conviction” under the new federal definition that Congress has
enacted, there would appear to be no reason to construe the phrase “a formal
judgment of guilt entered against the alien by a court” to exclude expunged
convictions of the type at issue here. Indeed, in light of the treatment that the
new federal statutory definition accords certain state court decisions to
withhold an adjudication of guilt prior to the entry of a conviction, the
conclusion that the new federal statutory definition fails to encompass the
broad category of expunged convictions identified in Luviano would lead to
anomalous results.


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   For example, an alien defendant who requested a state court to withhold an
adjudication of guilt prior to the entry of a conviction could in many cases be
subject to deportation. By contrast, an alien who was equally culpable of the
same offense but waited until after the conviction had been entered to seek the
relief that a provision such as the California expungement law may provide
would not be subject to deportation. Under such an approach, a convicted
alien who had been found guilty, had served a substantial period of time in
prison, and whose conviction had been subsequently vacated, could end up in
a more favorable position for purposes of federal immigration law than an
alien who had never had a conviction entered against him or her and had
never served any time in prison for the offense. It is doubtful that Congress
would have intended to provide greater relief under the immigration laws to
alien defendants who had been convicted and served long prison terms than
to equally culpable alien defendants who had never been formally convicted
and who had been subject to comparatively minor restraints on their liberty.
There would appear to be little basis, therefore, for construing the seemingly
plain definition of “conviction” that Congress has now enacted to accord such
disparate treatment to equally culpable aliens.8
   As discussed above, the Ninth Circuit reached a different conclusion only
with respect to a narcotics offense that would have fallen within the Federal
First Offender Act had the charges been brought in federal court. See
Lujan-Armendariz, 

. With respect to offenses that do not fall
within the FFOA or a state equivalent, the Ninth Circuit held that the BIA’s
interpretation in Roldan—i.e., that the new definition of conviction covers
vacated or set-side state convictions as well as deferred adjudications—was
a permissible construction of the new statutory definition of conviction. See
Murillo-Espinoza v. INS, 

 (9th Cir. 2001). And other
circuits to address the issue have agreed with the BIA that a vacated
conviction falls within the new definition of conviction.                  See
Renteria-Gonzalez v. INS, 

 (5th Cir. 2002) (applying
plain meaning of new IIRIRA definition to find that vacated federal
conviction for trafficking in aliens remained conviction for purposes of INA);
United States v. Campbell, 

 (2d Cir. 1999) (applying the plain
language of new definition to find that vacated conviction for possession of

8
   My conclusion is, as was demonstrated in the Board’s decision in Roldan, 

, consistent with a proper reading of the legislative history underlying the
enactment of 

(a)(48)(A). Congress “deliberately broaden[ed]” the meaning
of conviction and made guilt—not rehabilitation—the dispositive factor in determining
whether an individual is to be removed from the United States. See H.R. Rep. No. 104-828,
at 224 (1996). Legislators noted that “there exist in the various States a myriad of
provisions for ameliorating the effects of a conviction. As a result, aliens who have clearly
been guilty of criminal behavior and who Congress intended to be considered ‘convicted’
have escaped the immigration consequences normally attendant upon a conviction.” 

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controlled substance constituted conviction for sentencing purposes; “no
provision excepts from this definition a conviction that has been vacated”).
   Because this case does not involve a conviction for a narcotics offense and
a subsequent rehabilitation either under the FFOA or state law, I do not decide
whether the Ninth Circuit was correct in concluding that the new definition
of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit
held, equal protection guarantees require that an alien with a state conviction
who would have been eligible for FFOA relief had the conviction been
rendered in federal court receive the same treatment as a alien with a federal
conviction. I do note, however, that at least three circuits disagree with the
Ninth Circuit. See Acosta v. Ashcroft, 

 (3d Cir. 2003)
(concluding that “it seems plain that rational-basis review is satisfied here”);
Gill v. Ashcroft, 

 (7th Cir. 2003) (finding Ninth Circuit’s
decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS,

 (8th Cir. 2002) (disagreeing with Ninth Circuit and
declining to address possible repeal of FFOA by IIRIRA because no equal
protection violation for treating alien convicted under state law differently
from alien convicted under federal law where the sentences were dissimilar
and Congress could have intended to provide relief only for federal
convictions, over which Congress would have control). Indeed, although the
BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to
follow it outside of that circuit. See In re Salazar-Regino, 

,
(BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug
possession offense expunged under a state rehabilitative statute is a conviction
under section 101(a)(48)(A) of the [INA].”)
   There remains the final question whether the expungement that Marroquin-Garcia received in this case removes that conviction from the scope of the new
federal statutory definition of “conviction.” As has already been noted,
section 1203.4(a) of the California Penal Code does not serve to provide relief
that is based on a judgment about the legal propriety of the underlying
judgment of conviction. It merely provides a means by which certain
defendants who have been lawfully convicted and subjected to punishment
may be relieved of many, though not all, of the remaining legal consequences
that normally attend an adjudication of guilt. Therefore, notwithstanding the
relief that petitioner received under section 1203.4(a) of the California Penal
Code, he has been “convicted” for purposes of what was then section
241(a)(2)(C) of the INA.




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