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 Now 8 C.F.R. § 1003.1(h)(1)(ii) (2004).

705

In re Erick MARROQUIN-Garcia, Respondent

File A90 509 015 - Los Angeles

Decided by Attorney General January 18, 2005

Decided by Board February 21, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The federal definition of “conviction” at section 101(a)(48)(A) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000), encompasses convictions, other than

those involving first-time simple possession of narcotics, that have been vacated or set

aside pursuant to an expungement statute 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. 

(2) An alien whose firearms conviction was expunged pursuant to section 1203.4 of the

California Penal Code has been “convicted” for immigration purposes.

FOR APPLICANT: Jay J. Tanenbaum, Esquire, Sherman Oaks, California

FOR DEPARTMENT OF HOMELAND SECURITY: Joe D. Whitley, General Counsel

BEFORE THE ATTORNEY GENERAL

(January 18, 2005)

In 1997, the Board of Immigration Appeals requested that its decision in In

re Marroquin, A90 509 015 (BIA Feb. 21, 1997), be certified for review

pursuant to the provision now codified at 8 C.F.R. § 1003.1(h)(1)(ii) (2004).

The request for certification is granted and, for the reasons set forth in the

accompanying opinion, the decision of the BIA is reversed and remanded for

further proceedings.

OPINION

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
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 After the initial deportation order was entered in this manner, 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, United States Code.

706

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. See In re Roldan, 22 I&N Dec. 512, 523 (Mar. 3, 1999)

(“Roldan”). 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. See 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.

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 5 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. See In re Marroquin, A90 509 015, slip op. at

2 (BIA Feb. 21, 1997) (“Marroquin”).

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
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707

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 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.

See Cal. Penal Code § 1203.4(a) (West Supp. 2004). The Superior Court

granted Marroquin-Garcia’s motion for relief under this expungement statute

on December 18, 1994, and ordered Marroquin-Garcia’s “felony charge

reduced . . . to a misdemeanor,” his plea of guilty set aside and vacated, and

the complaint against him dismissed. See Marroquin, at 2.

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

1996) (“Luviano”), 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. See Luviano, 21 I&N Dec. at 237 (citing In re Ibarra-Obando,

12 I&N Dec. 576 (BIA 1966; A.G. 1967); In re G-, 9 I&N Dec. 159 (BIA

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
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 There, the Attorney General held that Congress’s progressive strengthening of the

(continued...)

708

therefore that decision was still controlling. Hence, the BIA found,

Marroquin-Garcia could not be deported based on the firearms offense. See

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, 

[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 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 In re

Ibarra-Obando, supra; In re G-, supra. 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 (BIA, A.G. 1959).3 In 1970, Congress carved out
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 (...continued)

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. See id.

709

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. See 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 ( BIA 1995); In re Werk, 16 I&N Dec. 234, 235-36 (BIA

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 convicted 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 liberty 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
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 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 In re Ozkok. Under Ozkok, an alien was considered “convicted”

when: (1) the alien had been found guilty or pleaded guilty or nolo contendre 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. See Ozkok,

19 I&N Dec. at 551-52.

710

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 federa1 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 (BIA

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 the

INA.4 See Joint Explanatory Statement of the Committee of Conference, H.R.

Conf. Rep. No. 104-828 at 199, 223. 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. See 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’srule for determining whether a state court

conviction that had been formally entered, but subsequently vacated or set

aside, constituted a “conviction” under the INA. See id. The BIA determined
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 See Roldan, 22 I&N Dec. 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 in the Idaho state court for early release from probation and

dismissal of the charge in accordance with the withheld judgment”); id. at 530 (Bd. Member

Villageliu, dissenting in part and concurring in part) (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”).

711

that the new statutory definition of “conviction” simply codified and refined

the rules that the BIA had set forth in In re Ozkok, for determining whether,

in 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. See 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. See id. 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.” Id.

After the BIA referred its decision in this case to me, the Board issued its

opinion in Roldan, supra. 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 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,
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712

[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. See id. The BIA thus overruled Luviano and Marroquin. See id.

at 512.

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 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. See 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. See 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.
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 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.” Id.

713

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. See Luviano, 21 I&N Dec. at 247-48 (Hurwitz,

dissenting). 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.” See Adams v.

County of Sacramento, 1 Cal. Rptr. 2d 138, 141 (Cal. Ct. App. 1991); accord
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 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.” Cal. Penal Code § 1203.4(a). 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.” Id. 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 control any firearm capable of being concealed

upon the person or prevent his or her conviction under Section 1202.1.” Id. 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 (Hurwitz, dissenting);

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)).

714

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. Board of Medical Examiners, 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 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
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715

“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 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.
Cite as 23 I&N Dec. 705 (A.G. 2005) Interim Decision #3507

8

 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. See H.R. 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.

716

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

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

Lujan-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-side 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
Cite as 23 I&N Dec. 705 (A.G. 2005) Interim Decision #3507

717

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 Salazar-Regino, 23 I&N Dec. 223,

(BIA 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 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.