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                                                     No. 96-70431
                                                     INS No.

Petitioner,                                           No. 99-70359

v.                                                    INS No.
SERVICE,                                              OPINION

Petitions for Review from the
Board of Immigration Appeals

Argued and Submitted
March 16, 2000--San Francisco, California

Filed August 1, 2000

Before: Henry A. Politz,1 Stephen Reinhardt, and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Reinhardt

1 The Honorable Henry A. Politz, Senior Circuit Judge for the Fifth Cir-
cuit Court of Appeals, sitting by designation.



Jose A. Bracamonte and Dorothea P. Kraeger, Phoenix, Ari-
zona, for petitioner/appellant Hector Tito Lujan-Armendariz;
Katherine Brady, Immigrant Legal Resource Center, Marc
Van Der Hout, Donald Ungar, and Robert Jobe, San Fran-
cisco, California, for petitioner/appellant Mauro Roldan-


David W. Ogden, Acting Assistant Attorney General; Mark
C. Walters, Assistant Director; and Margaret Perry, Depart-
ment of Justice, Washington, D.C., for respondent/appellee.



REINHARDT, Circuit Judge:

This case involves two long-time residents found guilty of
first time simple possession, and attempted simple possession,
of narcotics, respectively. The INS seeks to remove them
from the country, even though in both cases state courts have
held that the petitioners are no longer "convicted" under state
law, because both petitioners have received the benefit of
state rehabilitative statutes. We hold that the petitioners
before us do not presently stand "convicted" within the mean-
ing of the immigration laws, and that they, therefore, are not
subject to removal. We also hold that the Federal First
Offender Act was not repealed in whole or in part by the
recent amendments to the immigration laws,2 and that persons
whose offenses would qualify for treatment under the First
Offender Act but who are convicted and have their convic-
tions expunged under state laws may not be removed on
account of those offenses.3


The facts with respect to the consolidated petitions before
us are straightforward. Hector Tito Lujan-Armendariz (here-
2 See 8 U.S.C. S 1101(a)(48), discussed infra passim.
3 Under the new immigration laws, aliens are now ordered "removed"
rather than "deported." Both the petitioners here were initially placed in
deportation proceedings under the old law, and therefore are technically
subject to deportation rather than removal. Because the distinction
between the two terms is of no relevance to the resolution of this case, we
use the terms interchangeably.


inafter "Lujan") filed the first petition. Lujan has been in the
United States since 1982 and became a legal resident in 1987.
In 1989 he was convicted of attempted possession of narcotic
drugs (cocaine) under Arizona law (A.R.S. S 13-3408), which
was his first offense related to controlled substances. The state
court suspended imposition of his sentence, and instead
ordered him to serve five years of probation (and also to pay
a fine). Subsequently, the INS sought to deport Lujan based
on the offense.4 At a hearing before an Immigration Judge,
Lujan conceded he was deportable, but sought to depart vol-
untarily. This request was denied, and the IJ ordered Lujan
deported. The BIA affirmed this decision.

When a significant change in the applicable law occurred,5
Lujan sought an order from state court expunging his convic-
tion. The state court entered an order "vacating the judgment
of guilt and dismissing the charges against the defendant as
stated in the application herein." Although the court's order
mentioned no particular statute, both parties agree that the
expungement occurred under Arizona Revised StatutesS 13-
907. That statute provides that, upon application and fulfill-
ment of relevant conditions, a judge "shall set aside the judg-
ment of guilt, dismiss the accusations or information and
order that the person be released from all penalties and dis-
abilities resulting from the conviction."6 Lujan then filed a
4 The drug offense made him deportable by reason of his having been
convicted of attempting to violate a controlled substance law, under for-
mer 8 U.S.C. S 1252(a)(2)(B) (1994) (repealed), now codified at 8 U.S.C.
S 1227(a)(2)(B).
5 The change was our decisions in Garberding v. INS, 30 F.3d 1187,
1189 (9th Cir. 1994), and Paredes-Urrestarazu v. INS, 36 F.3d 801, 811
(9th Cir. 1994), and the ensuing BIA decision in Matter of Manrique, Int.
Dec. 3250 (BIA 1995). We describe the change and the decisions in detail
6 The Arizona Statute cannot be used to expunge certain serious
offenses, such as those involving the use of a deadly weapon or serious
physical injury. In addition, the release "from all penalties and disabilities"
is subject to some exceptions not relevant here.


motion to remand his case to an Immigration Judge, arguing
that the conviction no longer made him deportable (and also
that he could adjust his status based on his marriage to a U.S.
citizen). The BIA denied his motion, holding that despite the
state's action, Lujan stands "convicted" for immigration pur-
poses. Lujan petitioned for review.

Mauro Roldan-Santoyo (hereinafter "Roldan") first entered
the United States in 1982, and has been a legal resident since
1988. In 1993 he pled guilty, in Idaho, to simple possession
of marijuana (under Id. St. S 37-2732), which was his first
offense relating to controlled substances. Following the plea,
the court withheld judgment, but ordered Roldan to serve
three years of probation, to pay several fines, and to serve up
to ninety days in jail, at his probation officer's discretion. The
court further stated that if Roldan successfully completed the
probation, he could seek to have the charges dismissed, or
alternatively to have the crime reduced to a misdemeanor.

Based on the state proceeding, the INS sought to deport
Roldan in 1994. Roldan then sought expungement of his
offense in state court, on the basis of his compliance with the
terms of probation up to that time. The state of Idaho did not
contest his motion, and the charges were dismissed. The state
court's order stated that "It is herewith ordered that defendant
is discharged from court probation. It is further ordered that
this charge is dismissed pursuant to the withheld judgment
and as far as this matter is concerned defendant shall not be
considered a convicted felon under federal or state laws."
Although the state court cited no law under which it was act-
ing, both parties agree that the court acted pursuant to Idaho
Code S 19-2604(1), which provides for the dismissal of cases
where the judgment was withheld and the defendant has com-
plied with the requisite probationary conditions. In spite of the
state court's order, the INS argued, and the Immigration


Judge found, that Roldan stands "convicted" for immigration
purposes, and was thus deportable.7

Roldan appealed to the Board of Immigration Appeals.
While the appeal was pending, Congress enacted, for the first
time, a statutory definition of a conviction for immigration
purposes. Thus, the Board considered Roldan's claim under
the new definition.8 Sitting en banc, a divided Board of Immi-
gration Appeals affirmed the decision of the Immigration
Judge, holding that under the new definition the state court's
order expunging Roldan's offense could not be given effect.
Four Board Members dissented. Roldan petitioned for review.


Initially, we must consider a jurisdictional issue. The INS
alleges that the petitioners are removable by reason of their
having been convicted of the criminal offenses described
above. Our jurisdiction has been limited in cases involving the
removal of aliens who have been convicted of certain criminal
offenses. See generally 8 U.S.C. S 1252.9 We do retain juris-
diction, however, to determine whether or not petitions chal-
lenging deportation orders are subject to the jurisdictional bar.
Put another way, when an alien petitions for review of a
removal order, we retain jurisdiction to determine whether we
7 The IJ also found Roldan ineligible for suspension of deportation, rul-
ing that such relief was retroactively eliminated by the new immigration
law. We reached the opposite conclusion in Magana-Pizano v. INS, 200
F.3d 603, 610 (9th Cir. 1999). However, because we find that Roldan is
not subject to deportation, he need not apply for suspension of deportation.
8 The new definition appears to apply retroactively. See Illegal Immigra-
tion Reform and Immigrant Responsibility Act S 322(c). In any event,
Roldan makes no statutory or constitutional challenge to the BIA's deci-
sion to apply the new definition in his case.
9 Specifically, the first petition (filed by Lujan-Armendariz) is governed
by S 440(a) of the Anti-Terrorism and Effective Death Penalty Act, and
the second (filed by Roldan-Santoyo) is governed byS 309(c)(4)(G) of the
Illegal Immigration Reform and Immigrant Responsibility Act.


have jurisdiction to consider the petition. Magana-Pizano v.
INS, 200 F.3d 603, 607 (9th Cir. 1999); Aragon-Ayon v. INS,
206 F.3d 847, 849 (9th Cir. 2000). Here, we hold that we do
have jurisdiction to entertain the petitions because, as we
explain below, neither petitioner stands "convicted" for pur-
poses of the immigration laws. Thus, neither petitioner falls
within the class of persons whose challenges to removal we
are precluded from reviewing.10


Because the history of the legal developments in this area
gives much-needed context to the question before us, we will
describe that history in some detail.

Courts have long dealt with the problem of what effect to
give, for immigration and other purposes, to a finding of guilt
that has been expunged under a state rehabilitation statute.
The broad term "rehabilitation statute" describes a variety of
long existing state laws that allow people found guilty of cer-
tain crimes to have their records cleared, usually based in part
on their good behavior for a period of time following the find-
ing of guilt.11 In the immigration context, the BIA held in
10 Even where jurisdiction by way of petition for review has been barred,
federal district courts retain jurisdiction to entertain habeas petitions filed
by criminal aliens challenging their removal. Flores-Miramontes v. INS,
212 F.3d 1133, (9th Cir. 2000); Magana-Pizano v. INS, 200 F.3d 603 (9th
Cir. 1999). The district court decisions regarding such petitions may of
course be appealed to the courts of appeal.
11 For purposes of this opinion, it is necessary to distinguish between
two types of rehabilitative laws. In some types, which we will refer to as
"vacatur" or "set-aside" laws, 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 dis-
missed by the judge. Lujan's conviction was set aside under such a law.
In other types, which we will refer to as "deferred adjudication" laws, 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


1951 that an alien could not be deported on the basis of a
crime where the finding of guilt had been expunged. Matter
of O-T-, 4 I&N Dec. 265 (BIA 1951). Later, however, the
Attorney General held that this rule did not apply to drug
offenses: such offenses could result in deportation even if
they were expunged. Matter of A-F-, 8 I&N Dec. 429 (AG
1959). This remained the rule for all drug offenses until 1970,
when Congress adopted the Federal First Offender Act (here-
inafter "the First Offender Act" or "the Act"), a rehabilitation
statute that applies exclusively to first time drug offenders
who are guilty only of simple possession.12 Both before and
after the passage of the Act, the broad schemes for the reha-
bilitation of offenses under state law continued to serve as an
important means of lessening the consequences of certain
convictions, including avoiding deportations which would
otherwise be excessively harsh.
then during or after a period of good behavior, the charges are dismissed
and the judge orders the defendant discharged. Roldan's offense was
expunged under the latter type of law.

When referring to both types of laws, we will call them "rehabilitative"
or "rehabilitation" laws, or "expungement " laws. We realize that "ex-
pungement" is to some extent a misnomer, because under a deferred adju-
dication statute there is no conviction to expunge, as no conviction is ever
entered. However, even in such cases, certain findings or other records
may be expunged. More important, the use of the term "expungement"
significantly facilitates our discussion. Thus, while the federal law which
we describe in some detail -- the Federal First Offender Act -- is a
deferred adjudication law, rather than a vacatur or set-aside law, we will
sometimes use the term "expungement" when referring to what occurs
under that law, as well as under the various types of state statutes.

When discussing findings of guilt, guilty pleas, and the formal judgment
and record of the offenses committed by those who receive the benefit of
expungement laws, we will ordinarily refer to "findings of guilt" or "of-
fenses" rather than "convictions," (except where the statute expressly pro-
vides for entry of a conviction) because the question whether such persons
stand "convicted" is the ultimate issue we must resolve in such cases.
Although this produces awkward syntax at times, in the end we believe it
facilitates an understanding of the issues.
12 The Act is currently codified at 18 U.S.C. S 3607.


The First Offender Act is a limited federal rehabilitation
statute that permits first-time drug offenders who commit the
least serious type of drug offense to avoid the drastic conse-
quences which typically follow a finding of guilt in drug
cases. The Act allows the court to sentence the defendant in
a manner that prevents him from suffering any  disability
imposed by law on account of the finding of guilt. Under the
Act, the finding of guilt is expunged and no legal conse-
quences may be imposed as a result of the defendant's having
committed the offense. The Act's ameliorative provisions
apply for all purposes.

The rule prescribed in the First Offender Act has been
applied in deportation cases regardless of whether the finding
of guilt was obtained under the federal statute or under state
law. Equally important, the rule applies regardless of the pro-
cedural differences associated with the various state statutes.
While some state procedures allow, as does the First Offender
Act, for deferral of conviction itself, such that no judgment of
conviction is entered after a finding of guilt, under other state
procedures a judgment of guilt is entered, but later erased. See
supra note 11. As we explain below, both this court and the
BIA have held that such distinctions are irrelevant for pur-
poses of the First Offender Act. Garberding v. INS, 30 F.3d
1187, 1189 (9th Cir. 1994); Matter of Manrique , Int. Dec.
3250 (BIA 1995). In sum, the protection against deportation
that results from the Act's expungement of first-time simple
possession drug offenses has been applied not only with
respect to offenses expunged directly under the Act, but also
in the case of offenses expunged under state rehabilitative
laws, regardless of whether the state law allows for the entry
of a judgment of conviction and its later expungement or pro-
vides for a deferred adjudication procedure similar to that uti-
lized in the Act. Garberding, 30 F.3d at 1190-91.

Before proceeding further, it is important to recognize that
the differing rules for expungements generally and for
expungements of first time drug possession offenses reflect


two different policies, exist for two different reasons, and
have spawned two distinct bodies of law. The general state
laws allowing for expungements have existed for as long as
states have sought to determine the appropriate treatment of
criminal offenders, and have applied to various offenses based
on various policy rationales. The BIA's decisional law regard-
ing expungements, which has developed over a substantial
period of years, has aimed at adopting a consistent rule for
determining when those state rehabilitative schemes should be
given effect for purposes of the federal government's immi-
gration laws -- that is, for determining under what circum-
stances, if any, the federal government may consider someone
"convicted" when the state determines not to do so. The ques-
tion of what effect to give state rehabilitation laws necessarily
arises whenever the federal government seeks to deport some-
one on the basis of a finding of guilt that was both entered and
expunged under state law. It may also arise when a finding
has been entered but has not yet been expunged. 13 In contrast,
the BIA's rule regarding first time drug possession offenses
was adopted when Congress passed the First Offender Act in
1970.14 At that time drug possession was widespread, particu-
13 Actually, there are two related problems concerning state rehabilita-
tion laws which correspond to the two different kinds of rehabilitative stat-
utes. One problem concerns whether the federal government should
consider a person "convicted" despite his having had his conviction
vacated or set aside under state law. The other concerns whether the fed-
eral government should consider a person convicted where adjudication
has been deferred (and no conviction has technically been entered), but the
person has not yet successfully completed his probation, and thus the
record of the offense has not yet been expunged. See supra note 11. The
BIA's most recent attempt to deal with these problems came in Matter of
Ozkok, 19 I&N Dec. 546 (BIA 1988). In that case, the BIA stated, with
respect to the first problem, that a conviction that had been expunged
could not support a deportation order. With respect to the second, concern-
ing a defendant's status while in the process of a deferred adjudication, the
BIA held that some kinds of pending deferred adjudication proceedings
bar deportation, but others do not, depending on the nature of the proce-
dural mechanism involved. We discuss Ozkok in detail below.
14 The Act was passed as part of the Comprehensive Drug Abuse Pre-
vention and Control Act of 1970, Pub. L. No. 91-513 (1970). It was origi-
nally codified at 21 U.S.C. S 844(b).


larly among young people, many of whom were otherwise
law-abiding, and the Act was designed to ensure that the vari-
ous harsh consequences that normally flow from a criminal
conviction would not affect individuals found guilty of a first-
time simple drug possession offense. While the BIA's general
policy had been to refuse to recognize the expungement of
drug convictions, the Act overrode that policy in part, and
compelled the BIA to adopt an exception to its rule -- an
exception for people found guilty of first-time simple drug

It is with this background in mind that we must examine
the change in law which is the subject of these petitions for
review. In 1996, Congress passed, as part of a broad series of
changes to the immigration laws, a federal definition of "con-
viction" for immigration purposes. It is evident that the new
definition represents a Congressional attempt to clear up the
general confusion over when a conviction exists for immigra-
tion purposes, in light of the various state procedures govern-
ing expungement. Congress expressed dissatisfaction with the
BIA's somewhat legalistic approach to this question and with
the somewhat arbitrary way in which the BIA applied its
expungement rules to persons whose cases were processed
under substantively similar but procedurally different state stat-

While it is clear that the new definition substantially
changes the BIA's prior rules governing how it determines
when a conviction occurs under state rehabilitative laws, we
must decide whether, in addition, the new definition also
repeals in part the Federal First Offender Act, and thus the
rule that bars deportation of first-time drug offenders guilty
only of simple possession. If we find the Act is not repealed,
we must also decide whether the rule applying the Act's pro-
15 See, e.g., H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess. 224
(1996). The legislative history is discussed further in note 23, infra.


tection to identical offenses prosecuted and expunged under
state law remains in force.

A. Expungement of First Time Simple Drug Possession

[1] Although the BIA had ruled, in Matter of A-F-, prior to
the enactment of the First Offender Act, that it would not rec-
ognize expungements of any drug convictions, that broad a
rule could not survive the passage of the Act. The First
Offender Act allows persons who have never previously vio-
lated the narcotics laws and are found guilty of first time sim-
ple drug possession to have the charges dismissed without
entry of a conviction, provided that the judge deems them
suitable for such treatment. The law applies to citizens and
aliens alike, and allows those who benefit from it to avoid
having their offenses used against them for any purpose. The
statute provides that a case disposed of under its provisions
"shall not be considered a conviction for the purpose of a dis-
qualification or a disability imposed by law upon conviction
of a crime, or for any other purpose." 18 U.S.C. S 3607(b)
(emphasis added); Garberding, 30 F.3d at 1189.16 In short, the
16 The relevant portions of the Act state that:

      (a) . . . If a person found guilty of [simple possession of a con-
      trolled substance]

      (1) has not, prior to the commission of such offense, been con-
      victed of violating a Federal or State law relating to controlled
      substances; and

      (2) has not previously been the subject of a disposition under
      this subsection;

      the court may . . . place him on probation for a term of not more
      than one year without entering a judgment of conviction. At any
      time before the expiration of the term of probation, if the person
      has not violated a condition of his probation, the court may, with-
      out entering a judgment of conviction, dismiss the proceedings
      against the person and discharge him from probation. At the expi-
      ration of the term of probation, if the person has not violated a


statute constitutes a broad Congressional effort to afford pro-
tection to first time drug possessors against the harsh conse-
quences that follow from a drug conviction.

Following the Act's passage, the BIA held that, consistent
with the Act, a first time drug possession offense expunged
under its provisions could not be used as a predicate for
deportation. Matter of Werk, 16 I&N Dec. 234 (BIA 1977). At
that time, some states had "counterparts" to the federal gov-
ernment's Act -- parallel laws which provided for the
expungement of a first offense for simple possession of nar-
cotics under state law. The BIA held that aliens receiving
relief under such statutes also would not be subject to deporta-
tion. Id.

However, under the BIA's initial rule, not all aliens whose
first-time drug possession offenses were expunged under state
expungement laws could receive relief. Some of the states did
not have exact counterparts to the First Offender Act, but
instead utilized general rehabilitation statutes. General reha-
bilitation laws were not necessarily limited to expungement of
drug possession offenses or expungement of first offenses.
The BIA initially held that if a state's rehabilitation statute
was broader than the federal Act, a defendant who received
the benefit of an expungement under that state's statute
remained subject to deportation, even if the crime involved
was only a first offense of simple drug possession (i.e., even
if the offense could have been expunged under the Act had
      condition of his probation, the court shall, without entering a
      judgment of conviction, dismiss the proceedings against the per-
      son and discharge him from probation . . . .

      (b) . . . A disposition under subsection (a) . . . shall not be con-
      sidered a conviction for the purpose of a disqualification or a dis-
      ability imposed by law upon conviction of a crime, or for any
      other purpose.

18 U.S.C. S 3607.


the crime been prosecuted under federal law). Matter of
Deris, 20 I&N Dec. 5 (BIA 1989).

In Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994),
we rejected the rule that only expungements under exact state
counterparts to the Act could be given effect in deportation
proceedings, because the rule was inconsistent with the equal
protection guarantees of the Constitution. Id.  at 1190 (citing
Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974)). We held
that there was no rational basis for treating two persons found
guilty of the identical conduct differently based on the breadth
of the rehabilitation statutes in their respective states, when
both persons were eligible for relief under their own state's
law and both would have been eligible had the state law been
an exact counterpart of the federal Act. "Had[Garberding]
possessed her marijuana in Michigan, Virginia or Wisconsin,
she would not have been subject to deportation. . . . distin-
guishing Garberding for deportation because of the breadth of
Montana's expungement statute, not because of what she did,
has no logical relation to the fair administration of the immi-
gration laws or the so-called `war on drugs.' " Garberding, 30
F.3d at 1191. Thus, under Garberding, persons who received
the benefit of a state expungement law were not  subject to
deportation as long as they could have received the benefit of
the federal Act if they had been prosecuted under federal law.

Subsequently, in Paredes-Urrestarazu v. INS, 36 F.3d 801,
811 (9th Cir. 1994) (hereinafter "Paredes"), a case involving
a California pre-trial diversion program, we set forth the cor-
ollary of the Garberding rule, and held that persons found
guilty of a drug offense who could not have received the ben-
efit of the federal Act were not entitled to receive favorable
immigration treatment, even if they qualified for such treat-
ment under state law. Id. at 812.17 We emphasized, however,
that the petitioner in Paredes would be entitled to relief if he
17 Although Paredes dealt with the section of the Act concerning youth
offenders, its reasoning applies equally to the other portions of the statute.


met the requirements of the federal law, id. at 811, because it
would be "anomalous" to give effect to the federal expunge-
ment statute while not giving effect to its state counterparts;
we found no rational reason to reach different results based on
"the mere fortuity that the state, and not the federal govern-
ment, prosecutes an alien for a particular offense. " Id. at 812.
Nevertheless, because the petitioner was not eligible for relief
under the federal Act, we concluded that he could not receive
the benefit of the state's rehabilitation law.

The rule we declared to be constitutionally required was
formally adopted by the BIA in Matter of Manrique, Int. Dec.
3250, 1995 BIA Lexis at *14. In its decision, the BIA cited
both Garberding and Paredes, and held that in simple drug
possession cases any alien "who has been accorded rehabilita-
tive treatment under a state statute will not be deported if he
establishes that he would have been eligible for federal first
offender treatment under the provisions of [the Federal First
Offender Act] had he been prosecuted under federal law." Id.,
1995 BIA Lexis at *9. Under the law as it stood after Gar-
berding, Paredes, and Manrique, the petitioners here would
not have been subject to removal.18
(Text continued on page 9178)
18 The BIA held, in part, that petitioner Lujan-Armendariz did not qual-
ify for relief because his conviction did not involve a deferred adjudication
of guilt, but instead involved a vacatur. It is true that the Federal First
Offender Act involves deferred adjudication of guilt rather than vacatur,
and that under the state law Lujan's conviction was entered and then
vacated rather than deferred. Nonetheless, Lujan was entitled to relief
under the rule we established in Garberding, and the BIA implemented in
Manrique. We held in Garberding that the determining factor is whether
the petitioner would have been eligible for relief under the federal law and
in fact received relief under a state law, not whether the particular state
law at issue utilizes a process identical to that used under the federal gov-
ernment's scheme. Garberding, 30 F.3d at 1191. We stressed that the criti-
cal question is not the nature of the state's expungement statute but rather
"what [the petitioner] did." Id.

The test adopted by the BIA in Manrique, which implemented our deci-
sion, makes clear that Lujan qualifies for relief. Under that test, an alien


qualifies for relief if he is a first offender, is guilty only of simple posses-
sion, has not previously been accorded first offender treatment, and "[t]he
court has entered an order pursuant to a state rehabilitative statute under
which the alien's criminal proceedings have been deferred pending suc-
cessful completion of probation or the proceedings have been or will be
dismissed after probation." Manrique, Int Dec. 3250, 1995 BIA Lexis at
*9 (emphasis added). Lujan unquestionably meets the first three criteria.
While the BIA held that he did not meet the fourth, this is incorrect. An
Arizona court entered an order pursuant to a state rehabilitative statute dis-
missing the proceedings against him after he completed a term of proba-
tion. As should be obvious from our decisions in Garberding and Paredes
and the BIA's decision in Manrique, relief does not depend upon whether
or not the state rehabilitative statute in question is best understood as
allowing for "vacaturs," "set-asides,""deferred adjudications," or some
other procedure. Rather, the relevant question is whether the person
involved could have received relief under the Federal First Offender Act
and does receive relief under a state rehabilitation statute. In short, if the
person's crime was a first-time drug offense, involved only simple posses-
sion or its equivalent, and the offense has been expunged under a state
statute, the expunged offense may not be used as a basis for deportation.

We note one qualification. The BIA's decision in Manrique, unlike our
decision in Garberding, appears to limit its rule in one potentially impor-
tant respect. Under Manrique, it appears that an otherwise eligible
offender can only qualify for relief if he receives probation, as opposed
to imprisonment, and then later has the record of his sentence expunged.
Because Lujan, like Roldan, was sentenced to probation (although his pro-
bation included a jail term), we need not decide if this limitation consti-
tutes an acceptable interpretation of our rule in Garberding. In practice,
there are probably few, if any, first time drug offenders found guilty of
simple possession who are sentenced to imprisonment rather than proba-
tion (with or without a jail term) and who are not otherwise deportable.

The INS has made no attempt, on appeal, to defend the BIA's reasoning
regarding the procedure governing Lujan's expungement, and does not
argue before us that the protections of the First Offender Act are inapplica-
ble to vacaturs as opposed to deferred adjudications. Rather, the INS now
argues that, for purposes of immigration law, the new definition eliminates
all of the protections of the Act -- i.e. that the First Offender Act has in
effect been partially repealed and first time drug offenders who are guilty
only of simple possession are to be deported. In the alternative, it argues
that, even if the Act remains fully in effect, the BIA has properly deter-


B. Expungement of Offenses for Crimes Generally Under
      State Law

As we stated earlier, the BIA held as early as 1951 that
offenses for crimes expunged under state rehabilitation laws
would not count as convictions for deportation purposes.
While the BIA subsequently excluded drug offenses from this
rule, the law concerning expungements for other offenses
continued to develop. Although the law was relatively simple
when there were only a few state rehabilitation statutes, it
became more complex as the number and diversity of those
statutes increased. Indeed, as the INS explained in its brief,
there was considerable debate within the agency over the pro-
priety of the general rule that expungements under state law
should be honored for purposes of federal immigration law,
regardless of the nature of the offense. Opponents argued that
the effect of the rule was to allow aliens to escape deportation
based on lenient state policies, despite the fact that they had
committed criminal offenses and would otherwise be eligible
for deportation based on the straightforward application of
federal statutes in an area traditionally dominated by consider-
ations of federal policy. Nonetheless, the BIA adhered to its
rule that offenses expunged under state law could not serve as
the basis for deportation, although in some cases the INS
urged the opposite result. See e.g., Matter of G-, 9 I&N Dec.
159 (BIA 1960). The BIA felt compelled to honor expunge-
ments outside the narcotics context because, inter alia, it con-
cluded that it owed deference to dispositions under state law.
See id.

A related but distinct set of problems arose because of the
existence of one particular form of rehabilitation statute,
known as "deferred adjudication" laws. Under such laws, a
mined that it will no longer recognize similar expungements of first-time
drug possession offenses under state statutes. See discussion infra, section


person found guilty (or who pled guilty) could be put on pro-
bation even though no conviction was ever entered. Then, if
that person violated the terms of probation, further proceed-
ings might or might not be necessary before the person could
be convicted and sentenced. In deferred adjudication cases, it
was not clear whether a conviction existed sufficient to sup-
port a deportation order prior to the completion of proceed-
ings, because, while guilt had been established, no judgment
of conviction had been entered. In short, the INS was not cer-
tain whether it could deport persons who were still in a
deferred adjudication status, even though it was free to deport
persons whose convictions had not yet been vacated or set
aside. In 1955 the Supreme Court held, in an extremely short
per curiam opinion, that where a Massachussetts rehabilitative
procedure, which resembled at least some forms of contempo-
rary deferred adjudication laws, was employed, the alien,
whose case had been placed in an "on-file" status, had not
been convicted and could not be deported. Pino v. Landon,
349 U.S. 901 (1955) (per curiam).19 After this decision, the
BIA attempted to develop a uniform federal standard for pur-
poses of determining whether a defendant had been "convict-
ed," and thus whether he could be deported even though he
was in deferred adjudication status.20 

The most recent attempt by the Board to create a uniform
standard came in Matter of Ozkok, 19 I&N Dec. 546 (BIA
19 The Massachussetts law at issue is described in the First Circuit's
opinion which the Supreme Court reversed. Pino v. Nicolls, 215 F.2d 237,
241-42 (1st Cir. 1954) reversed by Pino v. Landon, 349 U.S. 901 (1955)
(per curiam). Pino's case was placed under "on-file" status and his sen-
tence was suspended following a finding of guilt. He argued that he could
force the district court to enter judgment and then take an appeal, after
which his conviction could be reversed. Id. at 242. The existence of this
possibility, he claimed, precluded a finding that a final conviction existed
for immigration purposes.
20 The BIA had previously adopted one definition to deal with this prob-
lem in Matter of O-, 7 I&N Dec. 539 (BIA 1957) and then a different one
in Matter of L-R-, 8 I&N Dec. 269 (BIA 1959).


1988).21 The definition announced in that case drew a sharp
line between two different kinds of deferred adjudication stat-
utes. Under the Board's decision, a deferred adjudication
would be considered a conviction for deportation purposes if
a formal judgment of conviction could be entered immedi-
ately following a probation violation, but not if further pro-
ceedings were required first. The BIA stated that

       As in the past, we shall consider a person con-
      victed if the court has adjudicated him guilty or has
      entered a formal judgment of guilt . . . .

       Where adjudication of guilt has been withheld,
      however, further examination of the specific proce-
      dure used and the state authority under which the
      court acted will be necessary. As a general rule, a
      conviction will be found for immigration purposes
      where all of the following elements are present:

      (1) a judge or jury has found the alien guilty or
      he has entered a plea of guilty or nolo contendere or
      has admitted sufficient facts to warrant a finding of

      (2) the judge has ordered some form of punish-
      ment, penalty, or restraint on the person's liberty to
      be imposed . . . and
21 Within the category of "deferred adjudication" statutes, there are those
which allow for an entry of conviction immediately upon the defendant's
violation of the terms of release, and those which require further proceed-
ings before a conviction can be entered following a violation of release
conditions. In addition, other state laws effectively defer adjudication by
allowing for the withdrawal of a guilty plea and dismissal of the indict-
ment after a probationary period, and through other similar state law pro-
cedures. For a description of these and other state procedures, see Matter
of Ozkok, 19 I&N Dec. 546, 550 (BIA 1988) (collecting cases describing
different state law rehabilitative procedures). See also n. 13 supra.


      (3) a judgment or adjudication of guilt may be
      entered if the person violates the terms of his proba-
      tion or fails to comply with the requirements of the
      court's order, without availability of further proceed-
      ings regarding the person's guilt or innocence of the
      original charge. . . .

       We note that a conviction for a crime involving
      moral turpitude may not support an order of deporta-
      tion if it has been expunged. We shall continue in
      this regard to follow the rule which was set forth by
      the Attorney General in Matter of G-, supra, and
      subsequently reaffirmed in Matter of Ibarra-
      Obando, 12 I&N Dec. 576 (BIA 1966, A.G. 1967),
      and Matter of Gutnick, 13 I&N 672 (BIA 1971).

Ozkok, 19 I&N Dec. at 551-52.22 

Notably, the Board's decision in Ozkok left intact the long-
standing rule that, in general, a conviction "may not support
an order of deportation if it has been expunged. " Id. at 552.
Thus, under Ozkok, regardless of the form of deferred adjudi-
cation, once a defendant has completed the requisite term of
probation and has succeeded in having his offense expunged,
he no longer stands convicted.

Ozkok's primary focus was on the resolution of the ques-
tion whether persons whose cases are being processed under
a deferred adjudication statute may be deported after a finding
of guilt but before completion of probation and the expunge-
ment of their record. See, e.g., Matter of Garcia, 19 I&N Dec.
270, 274 (BIA 1985) (finding defendant not "convicted" for
purposes of deportation where defendant was subject to
deferred adjudication, and INS sought to deport him prior to
22 Both Matter of Gutnick and Matter of G- clearly involve convictions
which were entered and later expunged, rather than deferred adjudications.
See Gutnick, 12 I&N Dec. at 576-77; G-, 9 I&N Dec 159, 159 (BIA 1960).


expiration of probationary period). The third prong of the test
quoted above deals with this subject by distinguishing
between the two types of deferred adjudication statutes.
Under the third Ozkok prong, when the state statute in ques-
tion provides that upon a probation violation a judgment of
conviction may be entered without further proceedings, the
defendant stands "convicted," but when the statute requires
further proceedings prior to entering the conviction and
imposing punishment, no "conviction" occurs. The rule
adopted in Ozkok may have made some sense from a strictly
legalistic standpoint, but it made the question of an alien's
deportability depend on the procedural niceties of the particu-
lar statutory provision rather than on anything having to do
with the alien's criminal conduct or the court's assessment of
it. As a result, it failed to end the debate over the effect to be
given deferred adjudications in deportation cases in general.

C. The New Federal Definition of Conviction in the
      Immigration Statute

[2] In 1996, as part of a broad series of changes to the
immigration laws, Congress for the first time decided to deal
explicitly with the meaning of the word "conviction." It
enacted a statutory definition of that term for immigration
purposes. That definition provides that:

      The 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 with-
      held, 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 punish-
      ment, penalty, or restraint on the alien's liberty to be


8 U.S.C. S 1101(a)(48)(A).

Without question, the new definition eliminated the distinc-
tion between the different types of deferred adjudication stat-
utes set forth in the third prong of the Ozkok  definition. It is
clear that Congress intended the new definition to mean, gen-
erally, that a conviction occurs prior to the time the probation-
ary period begins in cases processed under state deferred
adjudication laws, regardless of whether the state statute
requires further proceedings prior to the formal entry of a
judgment of conviction in the event of a probation violation.
The BIA's decision in Ozkok is specifically discussed in the
legislative history of the new definition, and Congress
adopted verbatim the first two sub-parts of the Ozkok defini-
tion, while notably omitting the third.23 

The INS argues, however, that the effect of the definition
goes further. According to the INS, the new definition not
only eliminates the specific rule that where further proceed-
ings are required a deferred adjudication does not constitute
23 The Joint Conference Report for the new immigration statute dis-
cusses deferred adjudications under Ozkok in some detail. While it
expresses general approval of Ozkok's approach, it adds that Ozkok "does
not go far enough". The report concludes that "by removing the third
prong of Ozkok, [the new definition] clarifies Congressional intent that
even in cases where adjudication is `deferred,' the original finding or con-
fession of guilt is sufficient to establish a `conviction' for purposes of the
immigration laws." H.R. Conf. Rep. No. 104-828, at 224 (1996). While
Congress specifically commented on the need to eliminate the BIA's
bifurcated rule regarding deferred adjudications, it did not mention the
rule, cited with approval by the BIA in Ozkok , that expunged convictions
cannot serve as the basis for deportation. Thus, it appears that Congress
was concerned primarily, as had been the BIA, with the question whether
aliens could be deported during the period that followed a determination
of guilt but preceded the expungement of the offense, and not with
attempting to alter the longstanding rule that convictions that are subse-
quently overruled, vacated, or otherwise erased no longer have any effect
for immigration or most other purposes (or, as in the case of the Federal
First Offender Act, have no effect for any other purpose.)


a conviction, it also eliminates the general rule that convic-
tions expunged under state rehabilitative laws may not serve
as the basis for deportation. The INS's position is that, as a
result of the recent statutory amendment, even after a convic-
tion (or the record involved in a deferred adjudication) has
been expunged under a state rehabilitative statute, the court's
earlier determination of guilt must still be treated as a convic-
tion for immigration purposes.

[3] Although we find the INS's argument highly unpersua-
sive, see inter alia note 24 supra, we need not resolve the
question definitively in order to decide the case before us. The
question we must decide is not what effect the new definition
has on state expungements under state rehabilitation laws in
general, but whether the new definition repeals the First
Offender Act in whole or in part, and, along with it, the rule
we established in Garberding and Paredes , which requires
similar treatment for first-time simple drug possession
offenses prosecuted and expunged under state laws. As we
have explained, the Act prohibits the use of offenses
expunged pursuant to its provisions "for any purpose," and
that rule has been extended to similar state expungements.24
Therefore, unless the new definition is construed as repealing
24 At oral argument, counsel for the INS implied that Garberding and
Paredes did not stand for the proposition that equal protection requires
that the INS treat federal and state expungement statutes similarly. This is
incorrect. While it is true that the facts in Garberding concerned different
treatment under parallel state statutes, rather than federal and state statutes,
it is evident that our reasoning in that case applies equally in both con-
texts. Moreover, we have explicitly stated that no rational basis exists for
affording relief to an alien under the federal expungement law while deny-
ing relief to identically situated aliens who qualify for similar treatment
under state expungement laws. Paredes, 36 F.3d at 811. The BIA also rec-
ognized that there is no rational basis for such a distinction. Matter of
Werk, 16 I&N Dec. 234 (BIA 1977); Matter of Manrique, Int. Dec. 3250
(BIA 1995) (citing Garberding and Paredes). Most important, INS coun-
sel offered no reason, and we cannot conceive of any, why Congress
would have wanted aliens found guilty of federal drug crimes to be treated
more leniently than aliens found guilty of state drug crimes.


the Act, insofar as it applies to immigration laws, the petition-
ers are entitled to prevail here.25 Ultimately, the INS squarely
meets this issue by asserting not only that the new definition
of the term "conviction" prevents the agency, as a general
matter, from recognizing rehabilitative actions taken by the
states pursuant to deferred adjudication and other state reha-
bilitative laws, but also that it repeals the First Offender Act,
insofar as it applies to deportation proceedings. 26


[4] Straightforward principles of statutory construction
require that we reject the INS's argument that the enactment
of the statutory definition of the term "conviction" serves to
partially repeal the Federal First Offender Act. The text of the
new immigration law does not on its face repeal the Act.
Indeed, the new law does not mention the Act. Thus, if there
is a repeal, partial or whole, it must be by implication. In gen-
eral, repeals by implication are "heavily disfavored," and may
be found only where two statutes are in irreconcilable conflict
or where one statute entirely displaces another. NLRB v.
Kolkka, 170 F.3d 937, 941 (9th Cir. 1999). In either case, the
repeal must be "clear and manifest." The Supreme Court has
set forth the applicable rule as follows:
25 As explained earlier, both Lujan and Roldan would have been eligible
for relief had they been prosecuted under the Act, and under Garberding
and Paredes they are entitled to receive the same protections as a result
of the expungements entered under state law.
26 Despite the parties' apparent beliefs, we cannot resolve this case by
reference to the rules governing the treatment of expungements under state
law generally. The BIA's rule, since at least 1959, has been that state
expungements do not erase drug offenses, and the only exception to this
rule is for offenses that could have been expunged under the First
Offender Act. Thus, whether or not the INS may, in general, deport some-
one based on a conviction expunged under state law is irrelevant in this
case. Because both petitions before us involve first time drug possession
offenses, we must resolve this matter by determining whether the First
Offender Act survives the adoption of the new definition, and then, if it
does, whether Garberding and Paredes  bar petitioners' deportations.


      It is, of course, a cardinal principle of statutory con-
      struction that repeals by implication are not favored.
      [citing cases] There are, however, two well-settled
      categories of repeals by implication (1) where provi-
      sions in the two acts are in irreconcilable conflict,
      the later act to the extent of the conflict constitutes
      an implied repeal of the earlier one; and (2) if the
      later act covers the whole subject of the earlier one
      and is clearly intended as a substitute, it will operate
      similarly as a repeal of the earlier act. But, in either
      case, the intention of the legislature to repeal must be
      clear and manifest.

Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976)
(internal quotations omitted); see also In re Glacier Bay, 944
F.2d 577, 581 (9th Cir. 1991).

[5] Irreconcilable conflict will not be found merely because
two statutes compel different results in a particular case.
Radzanower, 426 U.S. at 155; United States v. Batchelder,
442 U.S. 114, 122 (1979). Rather, there must be a "repugnan-
cy" between the words or purposes of the two statutes. Don-
aldson v. United States, 653 F.2d 414, 418 (9th Cir. 1981). If
the statutes are capable of coexistence, it is the duty of the
courts to regard each as effective. Id. Put another way, even
when two statutes are in some conflict, "[r]epeal is to be
regarded as implied only if necessary to make the[later-
enacted law] work, and even then, only to the minimum
extent necessary." NLRB v. Kolkka, 170 F.3d 937, 941 (9th
Cir. 1999) (internal quotation omitted).

Here, neither category of repeal by implication is applica-
ble, and in any event the legislature's intent is not "clear and
manifest." The second category of implied repeals obviously
does not apply. It is clear that the new immigration statute
was not intended to "cover the whole subject" of the Federal
First Offender Act. Therefore, the only question that requires


discussion is whether two laws are in irreconcilable conflict.
There are three reasons we find no such conflict.

A. Irreconcilable Conflict

[6] First, whatever the purpose of the new definition of
"conviction" as it affects state convictions in general, the pro-
vision need not be read as effecting an implied partial repeal
of the First Offender Act. The two statutes may be construed
in a manner that resolves any potential conflict by establish-
ing a narrow exception to the later statute for proceedings
subject to the earlier Act: under such a construction of the
new definition, a conviction occurs whenever there is a find-
ing or admission of guilt coupled with some punishment,
except where that finding is directly subject to the First
Offender Act or would be subject to it and has been expunged
pursuant to a state rehabilitation statute.

[7] Both this court and the Supreme Court have found no
irreconcilable conflict where, by creating minor exceptions to
later-enacted statutes based on earlier ones, both statutes can
be preserved. The closest analogy may be found in Donaldson
v. United States, 653 F.2d 414 (9th Cir. 1981), where we con-
sidered two statutes imposing different duties on the United
States Navy in its capacity as the operator of a lake resort.
Donaldson broke his neck when he dove into a reservoir oper-
ated, partly for recreational purposes, by the Navy. The
earlier-enacted statute imposed stringent duties upon resort
owners, with which the Navy did not comply. However, the
later-enacted statute, which applied to all real property own-
ers, stated that the owner "owes no duty of care to keep the
premises safe for . . . any recreational purpose. " Id. at 416 n.1.

[8] We found no conflict, holding that the resort provision
"can continue as a minor exception to the general rule set
forth in [the later statute] without shredding the protection of
landowners that the latter section was intended by the legisla-
ture to forge. At most this leaves a small puncture in a broad


shield." Id. at 418. The relationship between the statutes
before us is analogous to that in Donaldson. Even if the INS's
interpretation of the new law were generally correct and the
new definition did eliminate the effect of rehabilitative stat-
utes in the immigration context generally, the First Offender
Act could continue to function as a "minor exception," cover-
ing only one small category of first-time offenses -- a minor
exception that would not frustrate the broad purposes of the
new definition.

Other cases have reached similar results. In Radzanower,
the Supreme Court declined to find an implied repeal of an
earlier-enacted venue provision for national banks, even
though a later-enacted inconsistent venue provision for securi-
ties actions applied, by its terms, to a broad class of institu-
tions that included national banks. 426 U.S. at 153. 27 As in
Donaldson, the Court found that the earlier provision estab-
lished a narrow exception to the broad, later-enacted provi-
sion, rather than holding that the two statutes were in
irreconcilable conflict.

We have also declined to find irreconcilable conflict in a
recent case involving a later-enacted immigration statute and
an earlier-enacted statute concerning a different area. In
NLRB v. Kolkka, 170 F.3d 937 (9th Cir. 1999), we considered
an employer's argument that as a result of the passage of the
Immigration Reform and Control Act (IRCA), undocumented
aliens were no longer protected by the National Labor Rela-
tions Act (NLRA). Although the earlier-enacted statute, by its
terms, protected the alien workers, the defendant argued that
the provision had been partially repealed by implication -- in
the immigration context -- because IRCA makes it illegal to
employ undocumented workers. Id. at 940. We found no
27 The older law stated that national banks could only be sued in the dis-
trict in which they were established, while the later law stated that any
defendant in a suit to enforce a duty created under the Securities Exchange
Act could be sued wherever the transaction at issue took place. Id. at 150.


irreconcilable conflict, holding instead that both statutes could
be preserved. Specifically, we concluded that an employer
could not, in order to enforce IRCA, violate the NLRA and
expressly rejected the employer's argument that the later stat-
ute effected "an implied [partial] statutory repeal" of the ear-
lier act. Id. at 941.

[9] These cases alone dictate our conclusion that there is no
irreconcilable conflict between the two statutes at issue here,
and therefore no basis for finding an implied repeal. We need
only construe the later-enacted immigration law as subject to
the minor exception required by the provisions of the earlier-
enacted First Offender Act. Under the construction that prece-
dent requires us to adopt, the small number of aliens who
commit first time simple drug possession offenses that are
expunged are not subject to removal on account of those
offenses, but all others "convicted" of drug or other offenses
covered by the immigration laws, are. Thus, we follow the
mandate of Supreme Court and Ninth Circuit precedents in
rejecting the suggestion of repeal by implication where the
earlier statute can be preserved by reading a minor exception
into the later statute.

B. The Purpose of the New Definition

There is a second reason that the applicable rules of statu-
tory construction require us to reject the INS's argument. In
order for us to find an implied repeal, it would have to be
clear that Congress intended to repeal the First Offender Act;
or, to put it in the words of Radzanower,"the intention of the
legislature to repeal [would have to be] clear and manifest."
426 U.S. at 154 (internal quotation omitted). However, as our
description of the statutory and legislative history reveals, it
seems quite apparent that Congress's purpose in enacting the
new definition of the term "conviction" was not to work a
repeal of the Act, in whole or in part. Instead, the purpose of
the amendment appears to have been to establish the time at
which a particular type of proceeding, specifically, deferred


adjudication, results in a conviction for immigration purposes
-- not to alter the long-standing rule that a conviction entered
but subsequently vacated or set aside cannot serve as the basis
for a deportation order. Under the interpretation we find most
probable, Congress intended, as a general matter, to allow for
the deportation of aliens found guilty under state laws prior to
the time their offenses were actually expunged, regardless of
whether or not the finding was formally a "conviction" as a
matter of state law -- more particularly, regardless of whether
or not the entry of conviction had been deferred. We do not
believe, however, that Congress intended to eliminate the
longstanding rule that when a conviction or finding of guilt
has actually been expunged, it may not thereafter be used as
the basis for removal. As we explained above, both the legis-
lative history and the language of the statute, viewed in rela-
tion to the prior administrative case law, particularly Ozkok,
make the interpretation we favor by far the most likely one.

[10] If, as we believe, Congress intended to address only
the question of the time at which certain proceedings result in
a conviction, then the new definition obviously does not
impliedly repeal the First Offender Act for purposes of immi-
gration law.28 But we need not finally resolve the question of
Congress's purpose in enacting the new definition. It is
enough to conclude that Congress did not demonstrate a
28 Construing the statute as determining the time at which a conviction
occurs, as a general matter, would leave open the question whether the Act
precludes deportation of an alien who has received a deferred adjudication
but has not yet had his proceedings expunged because he has not com-
pleted his term of probation and therefore has not yet satisfied a judge that
dismissal of the offense is warranted. Our review of the history and pur-
pose of the Act strongly suggests that such a person is protected by the
Act's provisions, and our analysis of the law regarding repeals by implica-
tion suggests that no implied repeal occurred in that respect either. (What-
ever the case, the result would be applicable to first-time drug possession
offenders prosecuted under state statutes, as well.) However, we need not
resolve this issue in order to decide the petitions for review before us. In
both cases here, the pertinent findings had already been expunged before
the BIA decisions were issued.


"clear and manifest" intention to repeal the Federal First
Offender Act, in whole or in part;29 and we so conclude, with-
out the slightest hesitation here. Accordingly, under Radza-
nower, we are required to hold that no implied repeal

C. Implied Exceptions

Third, the INS's argument that the new definition's all-
29 The INS relies heavily on Dickerson v. New Banner Institute, Inc.,
460 U.S. 103 (1983), superseded by statute, 18 U.S.C. S 921(a)(20), in
which the Supreme Court held that convictions expunged under state law
could still be used to penalize gun ownership by felons under federal law.
The Court went on to find that the firearms restriction at issue in Dicker-
son was designed "to keep firearms out of the hands of presumptively
risky people," and in fact applied even to those under indictment prior to
any finding of guilt. Id. at 112 n.6. Congress superseded the Court's hold-
ing on this point by amending the federal gun control statute so that a con-
viction expunged under state law could not be considered a conviction
under federal law for purposes of the federal gun control laws. United
States v. Brebner, 951 F.2d 1017, 1021 (9th Cir. 1991). However, Dicker-
son may remain good law for the proposition that, in general, the question
of what counts as a conviction for purposes of a federal law remains a
question of federal law. See United States v. Sherbondy, 865 F.2d 995,
1005 (9th Cir. 1988).

Dickerson does not support the INS's position for three reasons. First,
there is no discussion of the Federal First Offender Act in Dickerson, and
the petitioner in that case would not have qualified for relief under the Act,
as his crime did not involve narcotics. 400 U.S. at 107. Second, as the
Court explained, "the terms `convicted' and`conviction' do not have the
same meaning in every federal statute. In some statutes those terms specif-
ically are made to apply to one whose guilty plea has been accepted . . . .
In other federal statutes, however, the term `convicted' is clearly limited
to persons against whom a formal judgment has been entered." Id. at 112
n.6. Thus, Dickerson supports the proposition that we must determine the
meaning of "conviction" under the new immigration law by looking to the
normal principles of statutory construction, not by reference to the federal
gun control laws. Third, the Court in Dickerson  held only that state reha-
bilitative laws could not displace the federal definition of a conviction for
purposes of the gun laws, because the latter was a question of federal law.
Here, both statutes at issue are federal.


inclusive language does not permit an implied exception for
the First Offender Act is wholly unpersuasive in light of its
concession that the definition contains other implied excep-
tions. The INS concedes, and we agree, that Congress did not
intend that a conviction subsequently overturned on the merits
(either because of a finding of insufficient evidence or
because of a basic procedural inadequacy, such as a violation
of the right to counsel), could serve as the basis for deportation.30
Thus, the INS acknowledges that a court's subsequent treat-
ment of a conviction, after it has been entered, may in some
cases serve to prohibit its use for immigration purposes. If this
is so, it appears evident that a federal statute barring deporta-
tion in cases in which a court has expunged a particular kind
of conviction does not necessarily conflict with the new defi-
nition. Because the exception we imply eliminates any poten-
tial inconsistency in the two statutes, ordinary principles of
statutory construction preclude us from finding an implied
repeal of the earlier one, in whole or in part. There is simply
no irreconcilable conflict between the statutes. Moreover, the
INS's recognition that a reversed conviction is of no force or
effect lends still further support to the view that the new defi-
nition was intended to establish when a conviction occurs, not
whether or how it can be rendered without further legal conse-

The INS attempts to limit the implications of its concession
by arguing that while a conviction cannot be given effect for
immigration purposes if it is reversed, it can be given effect
if it is merely vacated or set aside. As we have noted, the new
30 The INS's concession, while not extending to all reversals, is not lim-
ited to reversals that have to do with the defendant's guilt. The concession
also covers reversals that occur because of a fundamental procedural
defect, such as the absence of counsel, discrimination in jury selection, or
a violation of the right to self-representation, even when the evidence of
guilt is overwhelming. See Neder v. United States, 527 U.S. 1, 8 (1999).
We see no basis in the statute for limiting in any manner the class of
reversed convictions that the INS may not use as the basis for a deporta-
tion order.


definition by its terms draws no such distinction. If the statute
truly provided an exhaustive, all-inclusive, inflexible defini-
tion of conviction, such that no subsequent event could
change its status, then a vacated conviction might support a
deportation order. But that is clearly not what this statute
does. As the INS concedes, some limiting construction of the
new definition is required; such a limitation must necessarily
be made by the judiciary. Because the limitation is required
by virtue of the provisions of the statute itself, we do not sim-
ply create a statutory exception, but rather implement the
Congressional intent implicit in the statute's terms.31

Further support for the view that Congress did not intend
to bar any and all exceptions to the new definition's literal
terms can be found in its failure to provide any indication in
the immigration statute that the new law was intended to dis-
place the Federal First Offender Act. Had Congress intended
to partially repeal the Act by passing the new definition of
conviction, it could easily have done so by express reference
to the Act, or at the least by including a "notwithstanding any
other law" provision with respect to the new definition. Such
provisions are found elsewhere in the new immigration stat-
31 At oral argument, INS counsel cited our decision in Beltran-Leon v.
INS, 134 F.3d 1379 (9th Cir. 1998), in support of the claim that we have
already established the rule that guilt is sufficient, without more, to sup-
port a removal order. Of course, if that were true with respect to offenses
covered by the Federal First Offenders Act, then Beltran-Leon would be
in conflict with Garberding and Paredes . The INS's interpretation of
Beltran-Leon is far too broad. In that case we said only that a particular
common law writ -- the writ of audita querela -- cannot be given effect
for deportation purposes absent a defect in the underlying legal proceed-
ings. Id. at 1380. We relied on Doe v. INS, 120 F.3d 200, 203 (9th Cir.
1997), in which we held that for a writ of audita querela to issue, there
must be a legal defect in the underlying conviction or sentence, which was
absent in Beltran-Leon's case. Neither Petitioner here has sought the bene-
fit of the writ of audita querela; instead both rely on state rehabilitation
statutes. In addition, we note that Beltran-Leon was convicted of the sale
of cocaine, and therefore could not have received relief under the Federal
First Offender Act.


ute. See, e.g., 8 U.S.C. S 1252. We assume that Congress was
aware of the Act and the line of case law related to it when
the new definition was enacted. Lorillard v. Pons, 434 U.S.
575, 580 (1978) (stating that Congress is presumed to be
aware of administrative and judicial interpretations). Accord-
ingly, its failure to mention the Act, directly or indirectly, pro-
vides a final reason that we are compelled to conclude that
Congress did not intend its repeal.

D. Avoiding the First Offender Act Issue

The INS argues that we should resolve this case without
deciding whether the First Offender Act has been repealed. In
support of this argument, it contends that the BIA did not
actually decide that the Act was repealed, but only determined
that state expungement laws that are counterparts to the Act
are no longer to be given effect for immigration purposes. We
acknowledge, in fairness to counsel for the INS, that the
BIA's decision is far from a model of clarity. In fact, it is
extremely difficult to follow its reasoning. However, two con-
siderations lead us to the firm conclusion that the BIA did
decide that the Act was repealed.32

First, the Board stated that Congress deliberately did not
codify an exception for first offenders in the new definition,
despite its awareness of the Act. Roldan, 1999 BIA Lexis at
*37-41. Second, the Board noted that Congress had made an
exception to the rule that drug convictions result in deporta-
tion -- for certain marijuana offenses -- and stated that Con-
gress could have made a similar exception for first-time
32 We note that at oral argument, INS counsel apparently recognized the
weakness in her interpretation of the BIA's decision, and argued on the
merits that the new definition of "conviction " in the immigration statute
repeals, by implication, the Federal First Offender Act. Further support for
our reading of the BIA's decision comes from Board Member Rosenberg,
who dissented on the ground that the new definition did not repeal the Act,
and advanced an argument almost identical to that which we set forth here.
Apparently, Board Member Rosenberg read the BIA's decision as we do.


simple drug possession offenses had it chosen to do so. Id.
These statements make it clear that, whereas the Board
accepted the existence of certain exceptions specified in other
parts of the immigration statute, it concluded that the excep-
tion for first-time drug possession offenses specified in the
Federal First Offender Act did not survive the enactment of
the new definition.

In any event, even if we were incorrect, and the BIA did in
fact decide that expungements under state law are no longer
to be given effect without deciding whether the provisions of
the Federal First Offender Act were partially repealed by
implication, it would still be necessary to decide whether the
Act was repealed before the BIA decision could be upheld.
Our decisions in Garberding and Paredes  establish that aliens
may not be treated differently based on the "mere fortuity"
that they happen to have been prosecuted under state rather
than federal law, or under different state laws, as there is no
rational basis for distinguishing among the affected groups.
Paredes, 36 F.3d at 811-12; Garberding, 30 F.3d at 1191.
Here, both petitioners could have been prosecuted under the
Federal First Offender Act and their offenses have already
been expunged under state law. Thus, if the Act has not been
repealed, they cannot be deported for those offenses. Id. See
also Section VI, infra.

E. Chevron Deference

Finally, the INS argues that we should adopt the BIA's
construction of the relevant statutes even if we disagree with
it, placing great weight on the need for Chevron  deference.
Chevron v. Natural Resources Defense Council, 467 U.S. 837
(1984). Chevron holds that an agency's interpretation of a
statute must be accorded deference where Congress has left a
gap for it to fill or where it makes a reasonable interpretation
of a provision that is ambiguous or uncertain. Chevron, 467
U.S. at 844; INS v. Aguirre-Aguirre, 526 U.S. 415 (1999).
Chevron deference is predicated on the assumption that a stat-


ute's ambiguity constitutes an "implicit delegation" to the
agency to interpret the statute. See Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1314

Under Chevron, we are first required to analyze the law
applying normal principles of statutory construction, and then
to defer to the agency if, after performing that analysis, we
conclude that the statute is ambiguous or uncertain. 467 U.S.
at 843 n.9; INS v. Cardoza-Fonseca, 480 U.S. 421, 446
(1987); Yang v. INS, 79 F.3d 932, 935 (9th Cir. 1996). In this
case, as we have explained, supra, application of the normal
principles of statutory construction dictate a clear and
unequivocal answer to the issue before us: the Federal First
Offender Act was not repealed by implication, in whole or in
part. See National Credit Union Admin. v. First Nat'l Bank &
Trust Co., 522 U.S. 479, 501-02 (1998) (finding the statute
unambiguous after applying traditional canons of statutory
construction). Accordingly, the statute is not ambiguous or
uncertain and there is no occasion to apply Chevron's defer-
ence rule. See Gorbach v. Reno, _______ F.3d _______, No. 98-35723,
2000 WL 991814, at *4 (9th Cir. July 20, 2000)(en banc); Id.
at *10 (Thomas J. concurring).


Finally, the INS argues that even if Congress did not repeal
the Federal First Offender Act, the BIA was nonetheless free
to abandon its rule, adopted in Manrique, which provides that
aliens whose offenses are expunged under state statutes
affording relief similar to that provided by the Act may not be
deported because of those offenses. The INS asserts that, even
if it is still required to refrain from deporting persons because
of offenses expunged under the First Offender Act, the BIA's
decision that persons may not be deported for identical
offenses expunged under state statutes was simply a policy
choice, and that any such determination must be left entirely
to the discretion of the agency.


We have already rejected this argument, supra , and we will
not repeat our analysis in detail here. Suffice it to say that the
BIA is not free to adopt any policy it chooses with respect to
state rehabilitative laws, regardless of its arbitrariness or lack
of constitutionality. Our decisions in Garberding and Paredes
require, as a matter of constitutional equal protection, that the
benefits of the Act be extended to aliens whose offenses are
expunged under state rehabilitative laws, provided that they
would have been eligible for relief under the Act had their
offenses been prosecuted as federal crimes. Paredes, 36 F.3d
at 811-12; Garberding, 30 F.3d at 1191. As there is no ratio-
nal basis for a federal statute that treats persons adjudged
guilty of a drug offense under state law more harshly than
persons adjudged guilty of the identical offense under federal
law, the petitioners may not be deported for their first-time
simple drug possession offenses.


We hold that the new definition of "conviction " for immi-
gration purposes does not repeal either the Federal First
Offender Act or the rule that no alien may be deported based
on an offense that could have been tried under the Act, but is
instead prosecuted under state law, where the findings are
expunged pursuant to a state rehabilitative statute. Both
Lujan's and Roldan's petitions involve first-time drug
offenses for simple possession, and both offenses were
expunged under state law. Therefore, the petitioners may not
be deported on account of those offenses.

For the foregoing reasons, the petitions for review are
GRANTED, and petitioners' removal orders are hereby


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