A Big “Thank You” To The 9th Circuit Court Of Appeals For Admitting A Mistake!It has taken over a decade for the 9th Circuit to see reason on a majorissue that it got wrong. Amazingly though, the BIA case that started thisfight was not mentioned in the case that overruled Lujan-Armendariz.Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), reversed in part (see cites from Chart),originally held: (1) Under the statutory definition of “conviction” provided at section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996), 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. (2) With the enactment of the federal statute defining “conviction” with respect to an alien, our decisions in Matter of G-, 9 I&N Dec. 159 (BIA 1960, A.G. 1961); Matter of Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966, A.G. 1967); Matter of Luviano, Interim Decision 3267 (BIA 1996), and others which address the impact of state rehabilitative actions on whether an alien is “convicted” for immigration purposes are no longer controlling. (3) Once an alien is subject to a “conviction” as that term is defined at section 101(a)(48)(A) of the Act, the alien remains convicted for immigration purposes notwithstanding a subsequent state action purporting to erase the original determination of guilt through a rehabilitative procedure. (4) The policy exception in Matter of Manrique, Interim Decision 3250 (BIA 1995), which accorded federal first offender treatment to certain drug offenders who had received state rehabilitative treatment is superseded by the enactment of section 101(a)(48)(A), which gives no effect to state rehabilitative actions in immigration proceedings. Matter of Manrique, supra, superseded. (5) An alien, who has had his guilty plea to the offense of possession of a controlled substance vacated and his case dismissed upon termination of his probation pursuant to section 19-2604(1) of the Idaho Code, is considered to have a conviction for immigration purposes.
From Board Precedent and Related Court Decisions Chart11. Lujan-Armendariz v. INS and Roldan-Santoyo v. INS*, 222 F.3d 728 (9th 2000) - reversed,but only insofar as Board decision relates to Federal First Offenders Act or state counterparts2. Herrera-Inirio v. INS, 208 F.3d (1st Cir. 2000) - upholds3. Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001) - distinguishes because sentence modificationhere, not expungement (and notes Roldan has been "called into question")4. Murillo-Espinoza v. INS, 261F.3d 771(9th Cir. 2001) - upholds as "plausible" construction theBoards holding that state rehabilitative expungements will not be given effect (but see #1 above,for exception)5. Vasquez-Velezmoro v. INS, 281 F.3d 693 (8th Cir. 2002) - upholds, and specifically declinesto adopt reasoning of Lujan-Armendariz6. Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003) - upholds, and specifically rejects Lujan-Armendariz (see #1 above)7. Resendiz-Alcarez v. U.S. Attorney General, 383 F.3d 1262 (11th Cir. 2004) - upholds8. Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. 2005) - upholds rationale, but findsconviction here was not a felony9. U.S. v. Adame-Orozco, —F.3d—, 2010 WL 2220592 (10th Cir. 2010)- cites favorably10. Wellington v. Holder, —F.3d —, 2010 WL 4103759 (2d Cir. 2010)- accords ChevrondeferenceFinally, on July 14, 2011, the 9th Circuit has come to its senses andoverruled Lujan-Armendariz and certain of its progeny, and joined theBIA and eight sister Circuit Courts of Appeals. Behold:Nunez-Reyes v. Holder, No. 05-74350 (9th Cir. July 14, 20112) Petitioner Flavio Nunez-Reyes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his application for cancellation of removal. We deny the petition. In the course of doing so, sitting as an en banc court, we overrule our equal protection holding in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). We also conclude that, in light of the equities1 http://www.justice.gov/eoir/vll/intdec/ID%20Chart_Updated2009.html2 http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf
and other considerations, we will apply today’s new rule onlyprospectively.*...........We overrule Lujan-Armendariz.Does a state-court conviction for a simple-possession drugcrime, later expunged by the state court, nevertheless constitutea “conviction” for federal immigration purposes? Historyhas provided an ever-changing answer to that question. See Inre O-T-, 4 I. & N. Dec. 265, 268 (B.I.A. 1951) (“yes”); In reA-F-, 8 I. & N. Dec. 429, 445 (Att’y Gen. 1959) (“no”); In reWerk, 16 I. & N. Dec. 234, 235-36 (B.I.A. 1977) (“yes, insome circumstances”); Garberding v. INS, 30 F.3d 1187,1190-91 (9th Cir. 1994) (“no”); In re Manrique, 21 I. & N.Dec. 58, 62-64 (B.I.A. 1995) (“no”). Against that backdrop,in 1996, Congress enacted significant changes to our immigrationlaws, which included a new definition of the term“conviction.” 8 U.S.C. § 1101(a)(48)(A).11The full definition states: The term “conviction” means, with respect to an alien, a formaljudgment of guilt of the alien entered by a court or, if adjudicationof guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien hasentered a plea of guilty or nolo contendere or has admitted sufficientfacts 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.8 U.S.C. § 1101(a)(48)(A).In Lujan-Armendariz, we addressed the effect of the newdefinition on a petitioner’s expunged state conviction for asimple-possession drug crime. We began by consideringwhether a federal conviction, later expunged under the FederalFirst Offender Act (“FFOA”), nevertheless constitutes a“conviction” for immigration purposes. Importantly, theFFOA mandates that a successfully expunged federal conviction“shall not be considered a conviction for the purpose ofa disqualification or a disability imposed by law upon convic-tion of a crime, or for any other purpose.” 18 U.S.C.§ 3607(b) (emphases added). We thoroughly examined theapparent conflict between the quoted text of the FFOA and
the new definition of “conviction.” Lujan-Armendariz, 222F.3d at 734-43.  But we relegated to a footnote a very important additionalstep in the analysis: Did Congress have a rational basisfor distinguishing between expunged federal convictions andexpunged state convictions? We answered as follows: “INScounsel offered no reason, and we cannot conceive of any,why Congress would have wanted aliens found guilty of federaldrug crimes to be treated more leniently than aliens foundguilty of state drug crimes.” Id. at 743 n.24. Our brief analysisof this important issue is understandable in light of the government’ssilence. But we now are persuaded that we erred.2 2We address here only our holding in Lujan-Armendariz that the constitutionalguarantee of equal protection required Congress to treat expungedfederal convictions and expunged state convictions the same way. As wedid in Lujan-Armendariz, we assume, without deciding, that the statutoryterm “conviction” includes expunged state convictions. Because this casedoes not require resolution of that issue, we do not reach it.  Since our decision in Lujan-Armendariz, the BIA andevery sister circuit to have addressed the issue—eight in total—have rejected our holding. In re Salazar-Regino, 23 I. & N.Dec. 223, 235 (B.I.A. 2002) (en banc); Wellington v. Holder,623 F.3d 115, 120-21 (2d Cir. 2010) (per curiam), cert.denied, 79 U.S.L.W. 3442 (U.S. June 6, 2011) (No. 10-933);Danso v. Gonzales, 489 F.3d 709, 716 (5th Cir. 2007); Ramosv. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1271-72 (11th Cir.2004); Elkins v. Comfort, 392 F.3d 1159, 1163-64 (10th Cir.2004); Acosta v. Ashcroft, 341 F.3d 218, 224-27 (3d Cir.2003); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-98 (8thCir. 2002); Herrera-Inirio v. INS, 208 F.3d 299, 304-09 (1stCir. 2000). The BIA held: After considering the analysis set forth in Lujan- Armendariz . . . , we decline to apply the ruling in that decision to cases arising outside of the jurisdiction of the Ninth Circuit. We therefore conclude that, except in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under [the immigration laws].In re Salazar-Regino, 23 I. & N. Dec. at 235.
 Having reconsidered the issue, we now agree with theBIA and our sister circuits. A very relaxed form of rationalbasis review applies to this inquiry: “[F]ederal classificationsbased on alienage are subject to relaxed scrutiny. Federal classificationsdistinguishing among groups of aliens thus arevalid unless wholly irrational.” Garberding, 30 F.3d at 1190(citation and internal quotation marks omitted); see alsoAbebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009) (enbanc) (per curiam) (“Congress has particularly broad andsweeping powers when it comes to immigration, and is thereforeentitled to an additional measure of deference when itlegislates as to admission, exclusion, removal, naturalizationor other matters pertaining to aliens.”), cert. denied, 130 S. Ct.3272 (2010). That standard easily is met here. The Third Circuitput it well: Familiar with the operation of the federal criminal justice system, Congress could have thought that aliens whose federal charges are dismissed under the FFOA are unlikely to present a substantial threat of committing subsequent serious crimes. By contrast, Congress may have been unfamiliar with the operation of state schemes that resemble the FFOA. Congress could have worried that state criminal justice systems, under the pressure created by heavy case loads, might permit dangerous offenders to plead down to simple possession charges and take advan- tage of those state schemes to escape what is considered a conviction under state law. Particularly in view of Congress’s power in immigration matters, it seems plain that rational-basis review is satisfied here.Acosta, 341 F.3d at 227. Another rational basis exists as well: Not all states permit expungement. A person convicted in such a state would be ineligible for relief under the immigration laws, whereas a person convicted in a different state would be eligible. Congress reasonably could have concluded that, in the strong interest of uniformity, it would not recognize any state expungements rather than adopt a piecemeal approach.
Nunez-Reyes, 602 F.3d at 1107 (Graber, J., concurring).  In conclusion, we hold that the constitutional guaranteeof equal protection does not require treating, for immigrationpurposes, an expunged state conviction of a drug crime thesame as a federal drug conviction that has been expungedunder the FFOA. We therefore overrule Lujan-Armendariz’sholding to the contrary. By necessity, we also overrule thesame holding in those cases that, bound by stare decisis, followedthe rule we announced in Lujan-Armendariz. Thosecases include Romero v. Holder, 568 F.3d 1054 (9th Cir.2009); Ramirez-Altamirano, 563 F.3d 800; Dillingham, 267F.3d 996; and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9thCir. 2000).3 3We do not address, and do not overrule, any other holding of Lujan-Armendariz or its progeny, other than Rice v. Holder, 597 F.3d 952 (9thCir. 2010). See infra Part C.