If a state later decides to change the statute or recall it, or if the convict is successfully able to expunge it, the immigration consequences of removability will not change. Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001 and Prado v. Barr, No. 17-72914, 2020 WL 596877, at *3 (9th Cir. Feb. 3, 2020).
But if a conviction is later vacated for defects in criminal procedures, the Immigration Consequences maybe eliminated. .” Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir. 2010) & Nath v. Gonzales, 467 F.3d 1185, 1189 (9th Cir. 2006).
If a drug conviction is reduced to misdemeanor for rehabilitative purposes, it still serves as a felony in the eyes of Immigration court. Prado, 2020 WL 596877.
There are some valuable exceptions. For Example for convictions before July 14, 2014, a simple drug possession which has been expunged is not grounds for removability. Federal First Offender Act (FFOA).
Also expunged two different drug offense happening at the same time falls under FFOA and if happened before July 14,2014 is a defense to removability. Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1219 (9th Cir. 2016).
Its important to know that FFOA only applies to possession not sales of contraband. Lopez, 901 F.3d at 1075.
The crime of possession of paraphernalia can also fall under protection of FFOA. But to receive FFOA the expungement MUST happen on federal laws not state laws! Romero, 568 F.3d at 1062.
Contrary to common belief, not Misdemeanors forgivable in Immigration Removal Courts. The Supreme Court in Lopez v. Gonzales, 549 U.S. 47 (2006), ruled that a state drug offense may only be an aggravated felony if the conduct is punishable under federal laws as felony.
However, an aggravated felony by federal definition, even when is misdemeanor in state is a felony for Immigration purposes. United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. 2005); United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir. 2002); and Habibi v. Holder, 673 F.3d 1082, 1088 (9th Cir. 2011).
A state felony petty theft was overruled to be an aggravated felony Lopez-Valencia v. Lynch, 798 F.3d 863, 872 n.6 (9th Cir. 2015). But a state conviction for misdemeanor sexual was removable (under Crimes of Moral Turpitude).Gonzales-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013).
Criminal Immigration has preserved some common grounds during the log years of the battle between Judges, Lawyers, Different levels of courts, but still is a subject of complexity and surprises. It is of great importance to contact a knowledgeable lawyer for consultation and representation.
This is a legal blog. It is not intended to be used as legal advice. This blog does not create Attorney-Client Relationship. For further information please contact the law offices of attorney Ramona Kennedy.
Ramona Kennedy (Attorney) received her Jurisprudence Doctorate in America and is a licensed attorney in California (USA). Ramona Kennedy is a member of American Immigration Lawyers Association (AILA) & Orange County Trial Lawyers' Association. Ramona Kennedy is fluent in English and Farsi (Persian).
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