Treatment of Expunged State Convictions Under the 

Immigration and Nationality Act

Under the definition of “conviction” contained in the Immigration and Nationality Act, for a conviction 

not involving a first-time simple possession of narcotics, an alien remains convicted, and thus 

removable under the Act, notwithstanding a subsequent state action to vacate or set aside the 

conviction that does not reflect a judgment about the merits of the underlying adjudication of guilt.

January 18, 2005

OPINION IN DEPORTATION PROCEEDINGS

The Board of Immigration Appeals (“BIA” or “Board”) referred its decision in 

this matter for my review pursuant to 8 C.F.R. § 3.1(h)(1)(ii) (1997).1 In its decision, 

the BIA determined that a new federal definition of “conviction” did not undermine 

Attorney General precedent that held that a person convicted of a firearms offense 

under state law is not subject to deportation under section 241(a)(2)(C) of the 

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(2)(C) (1994),2 if that 

conviction has been subsequently “expunged.” Pending my decision, the BIA 

reversed itself and concluded that the new federal definition of “conviction” means 

that an alien remains convicted notwithstanding a subsequent state action to expunge 

the conviction. In re Roldan, 22 I. & N. Dec. 512, 523 (B.I.A. 1999). The Ninth 

Circuit subsequently reversed the BIA’s decision in Roldan with respect to aliens 

convicted of first-time drug possession offenses under state law. Lujan-Armendariz 

v. INS, 222 F.3d 728, 750 (9th Cir. 2000). The Ninth Circuit’s decision does not 

affect the applicability of Roldan to firearms offenses, but, in light of the Ninth 

Circuit’s decision, I find it appropriate to certify the Board’s decision and set forth 

clearly the Executive Branch’s interpretation of the relevant statute.

For the reasons stated below, I find that the new federal definition of “conviction” means that for a conviction not involving first-time simple possession of 

narcotics, an alien remains convicted, and thus removable under current section 

237 of the INA, notwithstanding a subsequent state action to vacate or set aside the 

conviction. The BIA’s decision is reversed and remanded.

1 Now 8 C.F.R. § 1003.1(h)(1)(ii) (2004). 2 After the initial deportation order was entered in this matter, former section 241 of the Immigration and Nationality Act was redesignated as section 237 by section 305(a)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, 

3009-598. The redesignated provision has been codified, with modifications that are not relevant here, 

as section 1227 of title 8, U.S. Code.

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Opinions of the Office of Legal Counsel in Volume 29

I. 

A. 

Erick Marroquin-Garcia entered the United States without inspection in 1980.

He adjusted to the status of lawful permanent resident alien pursuant to section 

245A of the INA in December of 1989. See 8 U.S.C. § 1255a (1994). He pleaded 

guilty to unlawful possession of a firearm under California law on October 22, 

1990. He was convicted in state court and placed on five years’ probation. The 

state court ordered, as conditions of probation, that Marroquin-Garcia spend 365 

days in the county jail and pay $100 restitution and the costs of his probation. In re 

Marroquin, A90 509 015, slip op. at 2 (B.I.A. Feb. 21, 1997).

The Immigration and Naturalization Service (“INS”) instituted deportation 

proceedings against Marroquin-Garcia on the basis of his state firearms conviction. On September 13, 1994, an immigration judge ordered Marroquin-Garcia 

deportable pursuant to what was then section 241(a)(2)(C) of the INA. See 

Marroquin at 2. At that time, section 241(a)(2)(C) of the INA stated in pertinent 

part that “[a]ny alien who at any time after entry is convicted under any law of 

purchasing . . . possessing, or carrying . . . any weapon, part, or accessory, which 

is a firearm or destructive device (as defined in section 921(a) of title 18) in 

violation of any law is deportable.” 8 U.S.C. § 1251(a)(2)(C) (1994).

During the pendency of his appeal to the BIA, Marroquin-Garcia filed a motion 

in the Superior Court for the County of Los Angeles for relief pursuant to section 

1203.4(a) of the California Penal Code. Section 1203.4(a) provides, inter alia, that

[i]n any case in which a defendant has fulfilled the conditions of 

probation for the entire period of probation, or has been discharged 

prior to the termination of the period of probation, or in any other 

case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under 

this section, the defendant shall, at any time after the termination of 

the period of probation, if he or she is not then serving a sentence for 

any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or 

her plea of guilty or plea of nolo contendere and enter a plea of not 

guilty . . . [and] the court shall thereupon dismiss the accusations or 

information against the defendant and except as noted below, he or 

she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.

The Superior Court granted Marroquin-Garcia’s motion for relief under this 

expungement statute on December 18, 1994, and ordered Marroquin-Garcia’s 

2 
Treatment of Expunged State Convictions Under the INA

“felony charge reduced . . . to a misdemeanor,” his plea of guilty set aside and 

vacated, and the complaint against him dismissed. Marroquin at 2.

Relying on the BIA’s decision in In re Luviano, 21 I. & N. Dec. 235 (B.I.A. 

1996), Marroquin-Garcia argued on appeal to the BIA that the expungement of his 

conviction meant that he had not been “convicted” for purposes of section 

241(a)(2)(C) of the INA. As discussed more fully below, the BIA had held in 

Luviano that prior Attorney General opinions compelled the conclusion that an 

alien whose conviction for a non-narcotics-related offense had been expunged 

pursuant to section 1203.4(a) of the California Penal Code had not been “convicted” for purposes of section 241(a)(2)(C) of the INA. 21 I. & N. Dec. at 237 (citing 

In re Ibarra-Obando, 12 I. & N. Dec. 576 (B.I.A. 1966; A.G. 1967)); In re G–, 

9 I. & N. Dec. 159 (B.I.A. 1960; A.G. 1961). At the time the BIA was deciding 

Marroquin, the Board’s decision in Luviano was pending before the Attorney 

General. In light of a new federal definition of “conviction,” enacted in section 

322(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 

1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628, the BIA 

decided Marroquin-Garcia’s appeal rather than wait for the Attorney General’s 

decision in Luviano. In Marroquin, the BIA concluded that the new federal 

definition of conviction did not affect the Board’s decision in Luviano and 

therefore that decision was still controlling. Hence, the BIA found MarroquinGarcia could not be deported based on the firearms offense. Marroquin at 6.

Before addressing the merits of the Board’s decision, I will first review the 

relevant history of this issue in greater detail.

B. 

Prior to the enactment of the new federal statutory definition, the INA did not 

define “conviction.” The federal courts, the Attorney General, and the BIA were 

therefore provided with little legislative guidance as to how to interpret the 

statutory provisions that subjected to deportation those persons who had been 

“convicted” of certain types of offenses. Two distinct lines of Attorney General 

precedent developed that addressed the effect of an expungement on a conviction 

that would otherwise provide a basis for an order of deportation under the federal 

immigration laws. Before discussing these lines of precedent, however, I must 

clarify the term “expungement.” Throughout this opinion I will use the term 

expungement to refer to the process of clearing a defendant’s record of a prior 

conviction. This expungement is achieved generally through two means: either a 

statute permits a deferred adjudication of a conviction such that a judgment is 

never entered, or a court vacates or sets aside a judgment of conviction from the 

books under a rehabilitative statute. As the Ninth Circuit has described the 

difference,

3 
Opinions of the Office of Legal Counsel in Volume 29

[under a] “vacatur” or “set-aside” [statute], a formal judgment of 

conviction is entered after a finding of guilt, but then is erased after 

the defendant has served a period of probation or imprisonment and 

his conviction is ordered dismissed by the judge. . . . [Under a] “deferred adjudication” [statute], no formal judgment of conviction or 

guilt is ever entered. Instead, after the defendant pleads or is found 

guilty, entry of conviction is deferred, and then during or after a period of good behavior, the charges are dismissed and the judge orders 

the defendant discharged.

Lujan-Armendariz v. INS, 222 F.3d 728, 735 n.11 (9th Cir. 2000).

Returning to the Attorney General precedents, first, there were Attorney General decisions that held that aliens who had been convicted of what section 

241(a)(4) of the INA termed “crimes of moral turpitude,” such as forgery or fraud, 

were not subject to deportation if their convictions had been expunged. See IbarraObando, 12 I. & N. Dec. 576; In re G–, 9 I. & N. Dec. 159. Second, there was an 

Attorney General decision that held that aliens who had been convicted of what 

section 241(a)(11) termed “narcotics offenses,” such as the distribution of 

marijuana, were subject to deportation even if their conviction had been expunged. 

See In re A–F–, 8 I. & N. Dec. 429 (B.I.A., A.G. 1959).3 In 1970, Congress carved 

out a narrow exception for simple federal possession offenses when it enacted the 

Federal First Offender Act (“FFOA”). The FFOA applies only to first-time drug 

offenders who are guilty only of simple possession. It expunges such convictions 

(after the successful completion of a probationary period) and was intended to 

lessen the harsh consequences of certain drug convictions, including their effects 

on deportation proceedings. Under the FFOA, no legal consequences may be 

imposed following expungement as a result of the defendant’s former conviction.

18 U.S.C. § 3607 (2000). After considering the effect of the FFOA, the BIA 

announced an exception to the holding of In re A–F–, finding that a first-time 

simple drug possession offender, whose conviction was set aside pursuant to a 

state statute, would not be deported if he or she would have been eligible for 

treatment under the FFOA had the charges been filed in federal court. See In re 

Manrique, 21 I. & N. Dec. 58, 64 (B.I.A. 1995); In re Werk, 16 I. & N. Dec. 234, 

235–36 (B.I.A. 1977).

At the time that the BIA decided Luviano, neither of the existing lines of administrative precedent addressed directly the circumstance at issue in Luviano,

which concerned the effect of an expungement on a person who had been convict3 There, the Attorney General held that Congress’s progressive strengthening of the deportation 

laws with respect to aliens who had committed narcotics offenses that would subject them to 

deportation under what was then section 241(a)(11) of the INA revealed Congress’s intent to subject 

such aliens to deportation even if their convictions had been technically “expunged” pursuant to section 

1203.4(a) of the California Penal Code.

4 

 
Treatment of Expunged State Convictions Under the INA

ed of what the former section 241(a)(2)(C) termed a “firearms” offense. Nevertheless, the BIA concluded in Luviano that the prior Attorney General opinions had 

established a rule that applied to all convictions that were not narcotics-related and 

that had been expunged. The BIA concluded that this rule precluded such convictions from serving as the basis for an order of deportation.

After the BIA issued its decision in Luviano, Congress enacted section 322(a) 

of IIRIRA, which amended the INA to define the term “conviction” for the first 

time. The new definition provides:

[t]he term “conviction” means with respect to an alien, a formal 

judgment of guilt of the alien entered by a court or, if adjudication of

guilt has been withheld, where

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient 

facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or 

restraint on the alien’s theory to be imposed.

IIRIRA § 322(a), 110 Stat. at 3009-628; INA § 101(a)(48)(A), 8 U.S.C. 

§ 1101(a)(48)(A) (2000). Because Congress passed the new federal statutory 

definition during the pendency of respondent’s appeal, the new statutory 

definition of “conviction” applies here. See IIRIRA § 322(c), 110 Stat. at 3009-

629 (explaining that the new statutory definition shall apply “to convictions . . . 

entered before, on, or after the date of the enactment of [IIRIRA]”). On May 31, 

1996, after the enactment of IIRIRA, the Commissioner of the INS referred the 

Board’s decision in Luviano to the Attorney General.

The Attorney General’s review of the Luviano decision was pending at the time 

Marroquin-Garcia’s appeal came to the BIA, but in light of the new federal 

definition in IIRIRA, the BIA concluded that it should decide the merits of 

Marroquin-Garcia’s appeal, rather than wait for the Attorney General’s decision in 

Luviano. In construing this new federal definition, the BIA determined that the 

statutory text did not make clear whether, or to what extent, Congress intended to 

treat expunged convictions, of any type, as “convictions” for purposes of the 

immigration laws. The BIA therefore turned to the legislative history. It relied 

primarily on a joint explanatory statement in the conference report to the IIRIRA 

that addressed the new definition. See Marroquin at 4–5. The joint explanatory 

statement made particular mention of the BIA’s pre-Luviano decision in In re 

Ozkok, 19 I. & N. Dec. 546 (B.I.A. 1988), in which the BIA had established rules 

for determining whether a state court’s decision to withhold an adjudication of 

guilt prior to the entry of a formal judgment of conviction—as opposed to vacating 

or setting aside a conviction already entered—precludes a judge’s or jury’s finding 

of guilt, or a defendant’s plea of guilty, from being deemed a “conviction” under 

5 
Opinions of the Office of Legal Counsel in Volume 29

the INA.4 H.R. Conf. Rep. No. 104-828, at 199, 223 (1996). The BIA noted that, 

in contrast to the joint explanatory statement’s relatively detailed discussion of 

Ozkok, “there was no discussion whatsoever” of the BIA and Attorney General 

decisions that had established the rules for determining whether formal judgments 

of conviction that had been entered and subsequently vacated or set aside constituted “convictions” under the INA. Marroquin at 5.

The BIA concluded from the joint explanatory statement’s express reference to 

Ozkok, and its failure to mention the other type of expungement decisions, that 

Congress did not intend for the INA’s new definition of “conviction” to supplant 

Luviano’s rule for determining whether a state court conviction that had been 

formally entered, but subsequently vacated or set aside, constituted a “conviction” 

under the INA. Id. The BIA determined that the new statutory definition of 

“conviction” simply codified and refined the rules that the BIA had set forth in 

Ozkok, for determining whether, the circumstance in which a formal judgment of 

conviction has been withheld prior to entry, a finding of guilt constitutes a 

“conviction” under the INA. Id. The BIA therefore held that, notwithstanding the 

new federal statutory definition of “conviction,” Luviano continued to control 

when a conviction had been vacated or set aside, and thus Marroquin-Garcia had 

not been “convicted” for purposes of section 241(a)(2)(C) of the INA because his 

conviction for a non-narcotics-related offense had been set aside pursuant to the 

same California expungement law in Luviano. Marroquin at 6.

The BIA referred this matter for my review as well. “If the Attorney General 

ultimately determines that a conviction for a firearms offense survives for 

immigration purposes despite a state procedure for expungement, the [Immigration 

and Naturalization] Service is free to reinstate deportation proceedings against the 

respondent here,” the BIA explained. Id. “At present, however, the [Immigration 

and Naturalization] Service cannot seek the respondent’s deportation under section 

241(a)(2)(C) of the Act on the basis of a criminal case in which the plea of guilty 

has been set aside and vacated and the charges have been dismissed.” ld.

After the BIA referred its decision in this case to me, the Board issued its opinion in Roldan. In that case, the BIA considered whether an expunged narcotics 

conviction could form the basis for an order of deportation in light of the new 

definition of conviction in IIRIRA. Although Roldan appears to involve a deferred 

adjudication,5 the BIA found “it necessary to reconsider . . . the effect to be given 

4 Over the years, the BIA had wrestled with the question of when a “conviction” occurs under state 

statutes providing for varying degrees of deferred adjudication. It settled on a three-factor definition in 

Ozkok. Under Ozkok, an alien was considered “convicted” when: (1) the alien had been found guilty or 

pleaded guilty or nolo contendere or had admitted sufficient facts to warrant a finding of guilty; (2) the 

judge had ordered some form of punishment; and (3) a judgment of guilt could be entered without 

further proceedings relating to guilt if the person violated terms of his probation or other court order. 

19 I. & N. Dec. at 551–52. 5 See id., 22 I. & N. Dec. at 514 (“the [state court] withheld adjudication of judgment, sentenced 

him to 3 years’ probation and imposed several monetary penalties”); id. (“the respondent filed a motion 

6 

 
Treatment of Expunged State Convictions Under the INA

to any state action, whether it is called setting aside, annulling, vacating, cancellation, expungement, dismissal, discharge, etc., of the conviction, proceedings, 

sentence, charge, or plea, that purports to erase the record of guilt of an offense 

pursuant to a state rehabilitative statute,” 22 I. & N. Dec. at 520. The BIA 

determined that Congress intended to establish a uniform federal rule that 

precluded the recognition of subsequent state rehabilitative expungements of 

convictions. More precisely, the BIA found that because Congress clearly intended 

that an alien with a deferred adjudication should be considered convicted, 

Congress also must have intended that an alien with a “technical erasure of the 

record of conviction” should be considered convicted. Id. at 521. As the BIA 

stated,

[i]t simply would defy logic for us, in a case concerning a conviction 

in a state which effects rehabilitation through the technical erasure of 

the record of conviction, to provide greater deference to that state’s 

determination that a conviction no longer exists. Under either scenario, the state has decided that it does not consider the individual convicted based on the application of a rehabilitative statute.

. . . Congress clearly does not intend that there be different immigration consequences accorded to criminals fortunate enough to violate 

the law in a state where rehabilitation is achieved through the expungement of records evidencing what would otherwise [have been] 

a conviction under section 101(a)(48)(A), rather than in a state where 

the procedure achieves the same objective simply through deferral of 

judgment.

Id. Based on its examination of the statutory text and legislative history, the BIA 

concluded that it would “interpret the new definition to provide that an alien is 

considered convicted for immigration purposes upon the initial satisfaction of the 

requirements of section 101(a)(48)(A) of the Act, and that he remains convicted 

notwithstanding a subsequent state action purporting to erase all evidence of the 

original determination of guilt through a rehabilitative procedure.” Id. at 523. The 

BIA qualified its holding by noting that its decision did not address the situation 

where a state court vacates a conviction on the merits or on grounds relating to a 

statutory or constitutional violation. Id. The BIA thus overruled Luviano and 

Marroquin. Id. at 512.

in the Idaho state court for early release from probation and dismissal of the charge in accordance with 

the withheld judgment”); id. at 530 (Board Member Villageliu, dissenting in part and concurring in 

part, joined by Chairman Schmidt and Board Members Rosenberg and Guendelsberger) (characterizing 

majority’s discussion of IIRIRA’s definition in relation to vacated convictions as dicta). But see id. at 

513 (describing respondent as “a first offender whose guilty plea was vacated”).

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Opinions of the Office of Legal Counsel in Volume 29

In Lujan-Armendariz, the Ninth Circuit considered the BIA’s decision in Roldan. The court was skeptical of the BIA’s conclusion that the new definition 

covered vacated or set-aside convictions as well as deferred adjudications. See id., 

222 F.3d at 742. The Ninth Circuit noted that the amendment said nothing about 

vacated convictions and could well be interpreted to establish only when a 

conviction occurred without determining what might be the effect of a later 

expungement. Id. at 741–42. The court did not decide this issue, however, and 

concluded instead that because the new definition in IIRIRA did not repeal the 

FFOA, equal protection principles mandated that aliens whose convictions had 

been expunged pursuant to state law were still entitled to the same treatment as 

those whose convictions had been expunged under federal law. Id. at 748–50.

Therefore, an alien could not be deported based on a state conviction of simple 

possession where that conviction was expunged by the state, if a federal simple 

possession conviction could have been expunged under the FFOA. In other words, 

because the new definition of conviction did not repeal the FFOA, if an alien’s 

conviction for a simple possession narcotics offense was expunged under a state 

equivalent of the FFOA, that conviction could not serve as the basis for an order of 

deportation, because, had the alien received the expungement under the FFOA, 

that conviction could not form the basis for the order of deportation. See id. at 750. 

With this history in mind, I now turn to the question of the proper interpretation 

of “conviction,” at least with respect to non-narcotics cases. 

II. 

A. 

As set forth above, the relevant statutory provision defines a “conviction” to be 

“a formal adjudication of guilt of the alien entered by a court.” INA 

§ 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A). This definition, though broad, is 

clearly not intended to encompass convictions that have been formally entered but 

subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf.

In re P–, 9 I. & N. Dec. 293 (A.G. 1961) (concluding that conviction set aside 

pursuant to writ of coram nobis for a constitutional defect could not serve as basis 

for order of deportation). Subsequently set-aside convictions of this type fall 

outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien’s guilt.

This same logic, however, suggests that a different conclusion is warranted for 

convictions such as the one at issue in this case. As was noted in dissent in 

Luviano, state laws that authorize the subsequent expungement of a conviction

typically do so for reasons that are entirely unrelated to the legal propriety of the 

underlying judgment of conviction—reasons, in other words, that are unrelated to 

concerns about the factual basis for, or the procedural validity of, the conviction.

8 
Treatment of Expunged State Convictions Under the INA

21 I. & N. Dec. at 247–48 (Board Member Hurwitz dissenting, joined by Board 

Member Vacca). These state expungement laws authorize a conviction to be 

expunged in order to serve rehabilitative ends and without reference to the merits 

of the underlying adjudication of guilt. Id. Such expunged convictions would 

appear, therefore, to survive as formal adjudications of guilt entered by a court.

Here, the state expungement law that provided relief for Marroquin-Garcia 

permits state courts to provide relief to all convicted defendants who seek it and 

have either completed their terms of probation or have been discharged prior to the 

termination of their probation. See Cal. Penal Code § 1203.4(a).6 It affords a 

remedy that is readily distinguishable from, for example, an appellate court’s 

reversal of a conviction on the merits, which is available only to persons who can 

demonstrate that the entry of the initial conviction was in error. Consistent with 

this conclusion, section 1203.4(a) of the California Penal Code does not, for 

purposes of California law, “eradicate a conviction or purge [the] defendant of the 

guilt established thereby.” Adams v. Cnty. of Sacramento, 1 Cal. Rptr. 2d 138, 141 

(Cal. Ct. App. 1991); accord id. (explaining that the provision “‘was never 

intended to obliterate the fact that defendant has been ‘finally adjudged guilty of a 

crime’”) (quoting Meyer v. Bd. of Med. Exam’rs, 206 P.2d 1085 (1949)). Indeed, a 

defendant who receives relief from the California provision still remains subject to 

certain state law civil disabilities that result from the initial entry of a formal 

adjudication of guilt, i.e., the entry of a judgment of conviction.7

For these reasons, the relief provided by the California expungement law does 

not reflect a judgment about the merits of the underlying adjudication of guilt. It 

does not provide relief equivalent to a decision on appeal (or in a collateral 

proceeding) that reverses or vacates a judgment of conviction for insufficiency of 

6 Section 1203.4(a) of the California Penal Code also authorizes state courts to provide the same 

relief in any “case in which a court, in its discretion and the interests of justice, determines that a 

defendant should be granted the relief available under this section.” 7 Section 1203.4(a) of the California Penal Code provides that “in any subsequent prosecution of 

the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the 

same effect as if probation had not been granted or the accusation or information dismissed.” In 

addition, the provision states that “the order [granting relief] does not relieve [the defendant] of the 

obligation to disclose the conviction in response to any direct question contained in any questionnaire 

or application for public office, for licensure by any state or local agency, or for contracting with the 

California State Lottery.” Finally, the provision provides that “[d]ismissal of an accusation or 

information pursuant to this section does not permit a person to own, possess, or have in his or her 

custody or contro1 any firearm capable of being concealed upon the person or prevent his or her 

conviction under Section 12021.” California law further provides that numerous professional and 

business licenses may be denied, revoked, or suspended as a result of a conviction, notwithstanding that 

fact that it has been expunged pursuant to section 1203.4(a). See Luviano, 21 I. & N. Dec. at 246–47 

(Board Member Hurwitz dissenting, joined by Board Member Vacca); see also Ramirez-Castro v. INS,

287 F.3d 1172, 1175 (9th Cir. 2002) (noting that “California Penal Code section 1203.4(a) provides 

only a limited expungement even under state law”); Garcia-Gonzales v. INS, 344 F.2d 804, 808 (9th 

Cir. 1965) (explaining that it is “sheer fiction to say that the conviction is ‘wiped out’ or ‘expunged’” 

by section 1203.4(a)).

9 

 
Opinions of the Office of Legal Counsel in Volume 29

the evidence or for procedural errors at trial. It serves only to ameliorate certain of 

the punitive consequences that attend a court’s legally valid finding of guilt. Even 

though the initial judgment of conviction has been set aside pursuant to section 

1203.4(a), the merits of the underlying judgment have not been called into 

question and adverse legal consequences continue to follow from it. Thus, that 

judgment would still appear to fall squarely within the plain language of the new 

federal statutory definition of “conviction,” which defines a “conviction” under the 

INA to be “a formal judgment of guilt of the alien entered by a court.” INA 

§ 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

The conclusion that the phrase “a formal judgment of guilt of the alien entered 

by a court” should be construed to encompass, by its plain terms, convictions that 

have been vacated or set aside pursuant to expungement statutes like section 

1203.4(a) finds additional support in the treatment that the new federal statutory 

definition of “conviction” accords an “adjudication of guilt [that] has been 

withheld.” Id. The new federal statutory definition of “conviction” clearly 

provides that a defendant who has been found guilty by a judge or jury, or has 

pleaded guilty, has been “convicted” for purposes of the INA if the judge has 

“withheld a formal adjudication of guilt” but has nevertheless imposed penalties or 

restraints upon the defendant’s liberty. Id. This part of the new federal statutory 

definition of “conviction” ensures that a defendant who has been found guilty of 

unlawful conduct, and has been punished for that conduct, will not avoid deportation by utilizing a state court procedure that spares the defendant from technically 

being adjudged “convicted.”

The congressional determination that even some state court decisions to withhold adjudications of guilt prior to the entry of a judgment of conviction should be 

counted as convictions under the INA supports the more modest conclusion that 

the phrase “a formal judgment of guilt of the alien entered by a court” encompasses judgments of conviction that, at least in the ordinary case, have been 

entered but then vacated or set aside for reasons that do not go to the legal 

propriety of the original judgment and that continue to impose some restraints or 

penalties upon the defendant’s liberty. A conviction that has been vacated or set 

aside pursuant to a law like the California statute ordinarily does not differ in 

substance from the type of state court decision to withhold an adjudication of guilt 

prior to entry that Congress has explicitly deemed to constitute a “conviction.” The 

relief that the court provides in each type of case does nothing to call into question 

the propriety of the underlying adjudication of guilt.

Indeed, this case well illustrates the point. Even though Marroquin-Garcia’s 

conviction has been set aside under section 1203.4(a), the underlying judgment of 

guilt still counts as a “conviction” under California law, and he not only has been 

subjected to punishment as a consequence of that conviction but also remains 

subject to various civil disabilities as well. The existence of these continuing legal 

disabilities certainly suggests that, for purposes of determining whether the initial 

10
Treatment of Expunged State Convictions Under the INA

adjudication of guilt may serve as the basis for an order of deportation, the 

expungement in question should not be equated with a court’s setting aside a 

conviction on the merits in a collateral proceeding or on appeal.

Because even an “adjudication of guilt [that] has been withheld” may constitute 

a “conviction” under the new federal definition that Congress has enacted, there 

would appear to be no reason to construe the phrase “a formal judgment of guilt 

entered against the alien by a court” to exclude expunged convictions of the type 

at issue here. Indeed, in light of the treatment that the new federal statutory 

definition accords certain state court decisions to withhold an adjudication of guilt 

prior to the entry of a conviction, the conclusion that the new federal statutory 

definition fails to encompass the broad category of expunged convictions identified in Luviano would lead to anomalous results.

For example, an alien defendant who requested a state court to withhold an 

adjudication of guilt prior to the entry of a conviction could in many cases be 

subject to deportation. By contrast, an alien who was equally culpable of the same 

offense but waited until after the conviction had been entered to seek the relief that 

a provision such as the California expungement law may provide would not be 

subject to deportation. Under such an approach, a convicted alien who had been 

found guilty, had served a substantial period of time in prison, and whose conviction had been subsequently vacated, could end up in a more favorable position for 

purposes of federal immigration law than an alien who had never had a conviction 

entered against him or her and had never served any time in prison for the offense.

It is doubtful that Congress would have intended to provide greater relief under the 

immigration laws to alien defendants who had been convicted and served long 

prison terms than to equally culpable alien defendants who had never been 

formally convicted and who had been subject to comparatively minor restraints on 

their liberty. There would appear to be little basis, therefore, for construing the 

seemingly plain definition of “conviction” that Congress has now enacted to 

accord such disparate treatment to equally culpable aliens.8

B.

As discussed above, the Ninth Circuit reached a different conclusion only with 

respect to a narcotics offense that would have fallen within the Federal First 

Offender Act had the charges been brought in federal court. See Lujan8 My conclusion is, as was demonstrated in the Board’s decision in Roldan, 22 I. & N. Dec. at 514–

19, consistent with a proper reading of the legislative history underlying the enactment of 8 U.S.C. 

§ 1101(a)(48)(A). Congress “deliberately broaden[ed]” the meaning of conviction and made guilt—not 

rehabilitation—the dispositive factor in determining whether an individual is to be removed from the 

United States. H.R. Conf. Rep. No. 104-828, at 224 (1996). Legislators noted that “there exist in the 

various States a myriad of provisions for ameliorating the effects of a conviction. As a result, aliens 

who have clearly been guilty of criminal behavior and who Congress intended to be considered 

‘convicted’ have escaped the immigration consequences normally attendant upon a conviction.” Id.

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Opinions of the Office of Legal Counsel in Volume 29

Armendariz, 222 F.3d at 750. With respect to offenses that do not fall within the 

FFOA or a state equivalent, the Ninth Circuit held that the BIA’s interpretation in 

Roldan—i.e., that the new definition of conviction covers vacated or set aside state 

convictions as well as deferred adjudications—was a permissible construction of 

the new statutory definition of conviction. See Murillo-Espinoza v. INS, 261 F.3d 

771, 774 (9th Cir. 2001). And other circuits to address the issue have agreed with 

the BIA that a vacated conviction falls within the new definition of conviction. See 

Renteria-Gonzalez v. INS, 322 F.3d 804, 812–14 (5th Cir. 2002) (applying plain 

meaning of new IIRIRA definition to find that vacated federal conviction for 

trafficking in aliens remained conviction for purposes of INA); United States v. 

Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (applying the plain language of new 

definition to find that vacated conviction for possession of controlled substance 

constituted conviction for sentencing purposes; “no provision excepts from this 

definition a conviction that has been vacated”).

Because this case does not involve a conviction for a narcotics offense and a 

subsequent rehabilitation either under the FFOA or state law, I do not decide 

whether the Ninth Circuit was correct in concluding that the new definition of 

conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, 

equal protection guarantees require that an alien with a state conviction who 

would have been eligible for FFOA relief had the conviction been rendered in 

federal court receive the same treatment as a alien with a federal conviction. I do 

note, however, that at least three circuits disagree with the Ninth Circuit. See 

Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems 

plain that rational-basis review is satisfied here”); Gill v. Ashcroft, 335 F.3d 574, 

579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining 

to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697–99 (8th Cir. 2002) 

(disagreeing with Ninth Circuit and declining to address possible repeal of 

FFOA by IIRIRA because no equal protection violation for treating alien 

convicted under state law differently from alien convicted under federal law 

where the sentences were dissimilar and Congress could have intended to 

provide relief only for federal convictions, over which Congress would have 

control). Indeed, although the BIA acquiesces in the decision in the Ninth 

Circuit, it correctly declines to follow it outside of that circuit. See In re SalazarRegino, 23 I. & N. Dec. 223, 235 (B.I.A. 2002) (“[E]xcept in the Ninth Circuit, a 

first-time simple drug possession offense expunged under a state rehabilitative 

statute is a conviction under section 101(a)(48)(A) of the [INA].”). *

There remains the final question whether the expungement that MarroquinGarcia received in this case removes that conviction from the scope of the new 

federal statutory definition of “conviction.” As has already been noted, section 

* Editor’s Note: The Ninth Circuit subsequently overruled Lujan-Armendariz in Nunez-Reyes v. 

Holder, 646 F.3d 684, 689 (9th Cir. 2011) (en banc), stating that “we now agree with the BIA and our 

sister circuits.”

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Treatment of Expunged State Convictions Under the INA

1203.4(a) of the California Penal Code does not serve to provide relief that is 

based on a judgment about the legal propriety of the underlying judgment of 

conviction. It merely provides a means by which certain defendants who have 

been lawfully convicted and subjected to punishment may be relieved of many, 

though not all, of the remaining legal consequences that normally attend an 

adjudication of guilt. Therefore, notwithstanding the relief that petitioner received 

under section 1203.4(a) of the California Penal Code, he has been “convicted” for 

purposes of what was then section 241(a)(2)(C) of the INA.

JOHN D. ASHCROFT

Attorney General

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