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Editor's Comments of the Day
In Lujan-Armendariz v. INS, No. 96-70431 (9th Cir. August 1, 2000) the Ninth Circuit vacated removal orders for petitioners who had had their first time drug offenses for simple possession expunged. Prior to IIRIRA an alien was eligible for relief from deportation for conviction of a drug offense if he were a first time offender, guilty only of simple possession, had not previously been accorded first offender treatment and where the court had entered an order pursuant to a state rehabilitative statute under which the alien's criminal proceedings had been deferred pending successful completion of probation or the proceedings had been or will be dismissed after probation. This form of relief is based on the federal First Offenders Act and similar state rehabilitative statutes. The Board of Immigration Appeals found that the definition of conviction introduced into immigration law by IIRIRA precluded this form of relief.
The District Court disagreed with the BIA and found that aliens who had their record for a first time offense of simple possession of a controlled substance expunged were still eligible for relief. First, the Court rejected the suggestion of repeal of this relief by implication because the First Offenders Act could be preserved by reading a minor exception into IIRIRA. Second, the Court found that the purpose of the definition of conviction in IIRIRA was to address the question of when certain proceedings result in a conviction, not to repeal the First Offenders Act. Third, the Court found that the INS had undercut its own argument by accepting other implied exceptions to the statutes all-inclusive language. The Court went on to reject the INS's argument that it need not determine that the First Offenders Act be repealed finding that aliens should not be treated differently based on the "mere fortuity" of where their cases happen to be prosecuted. Since the cases could have been prosecuted under the First Offenders Act but were prosecuted under state law, the relief was still available. Finally, the Court rejected INS's argument for deference to an agency's policy decision to treat expungements under state law as different from expungements under the First Offenders Act.
The Court held that the definition of conviction for immigration purposes in IIRIRA 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 tired under that act, but was instead prosecuted under state law where the findings are expunged pursuant to a state rehabilitative statute. The Court was aware of its role in shaping post-IIRIRA immigration law. It noted, "as INS concedes, some limiting construction on the new definition (of conviction) is required; such a limitation must necessarily be made by the judiciary."
Federal Register News of the Day
Bureau of Educational and Cultural Affairs Announces Open Competition for Community Connections Program: U.S. Hosting
The Office of Citizen Exchanges of the Bureau of Educational and Cultural Affairs requests proposals to organize and implement
Community Connections, a community-based, professional J-1 exchange program for business entrepreneurs and other professionals
from Russia, Ukraine, Moldova, Armenia, Belarus, Georgia, Azerbaijan and Kazakhstan.
Cases of the Day
Expunged Offense May Not Be Basis of Deportation
In Lujan-Armendariz v. INS, No. 96-70431 (9th Cir. August 1, 2000) the Ninth Circuit vacated the petitioners' removal orders
finding that the BIA had incorrectly determined that the definition of "conviction" for immigration purposes repealed the
1970 First Offender Act. The court found that the benefits of the First Offender Act should 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.
First Circuit Finds Willful Blindness No Excuse
In U.S. v. Singh, No. 99-2096 (1st Cir., July 28,2000)
the court ruled that the trial court lawfully convicted Singh for making
a false statement to acquire a Social Security card and for possessing counterfeit immigration documents based on the facts that
he paid an agency to procure new immigration documents, was transported to a different location with other aliens so that he
could obtain a social security card and signed a pre-prepared application indicating that he was a legal alien allowed to work.
Congressional News of the Day
Text of Latino and Immigrant Fairness Act of 2000
The full text of S. 2912, the "Latino and Immigrant Fairness Act of 2000," has become available. The bill extends NACARA benefits
to nationals of El Salvador, Guatemala, Honduras and Haiti, and advances the registry date.
[You need Acrobat to read this file.]
Observations on the Department of Justice's Fiscal Year 1999 Performance Report and Fiscal Year 2001 Performance Plan
This report by the General Accounting Office to Congress discusses the challenges facing the Department of Justice and observations
of the agency's performance measures. The report comments on two mission areas which the DOJ has identified for the
INS - to provide timely, consistent, fair, and high-quality services and to keep US borders secure
from illegal immigration.
INS News of the Day
New Appointments to Board of Immigration Appeals
The Executive Office for Immigration Review announces the appointment of Cecelia M. Espenoza, Juan P. Osuna and NoŽl A. Brennan
to the Board of Immigration Appeals.
Immigration News of the Day
Gore's Aides Faulted in INS Inquiry
The LA Times writes that political pressure from Vice President Al Gore's deputies was "one stimulus" driving a hurried,
mistake-prone effort by federal authorities to naturalize more than a million new citizens in 1996, including thousands
of possible criminals.
Graying Trieste Sets Stage For Europe
In an article on a study of Trieste, which has the oldest population in Europe, the Chicago Tribune cites a UN population
survey which found that over the next 50 years, Europe will either have to absorb 1.4 billion new immigrants or raise
its retirement age to 75.
ILW.COM Highlights of the Day
We Provide Valuable Services For Employers
Employers, you can find comprehensive immigration information for sponsorship of employees, find a lawyer, ask their question to a
lawyer in a live chat or meet with the community on discussion board.
ILW.COM Chats and Discussions of the Day
Chat with Stephen Berman, Esq.
Attorney Stephan Berman will answer questions on all
aspects of immigration law Thursday, August 3, 2000, at 9:00 p.m. Eastern (New York) time.