At that time, the BIA had long acknowledged that an alien granted relief under the FFOA did not have a "conviction" for immigration purposes, and it similarly held that defendants granted relief under a state counterpart to the FFOA should be given the same treatment. See Matter of Deris, 20 I. N. Dec. 5, 11 (BIA 1989); Matter of Werk, 16 I. N. Dec. 234, 236-37 (BIA 1977) (concerning the predecessor statute to the current FFOA). However, in determining whether a state defendant was covered under this rule, the BIA generally focused on the procedural details of the state rehabilitative statute in question.
At that time, the BIA had long acknowledged that an alien granted relief under the FFOA did not have a "conviction" for immigration purposes, and it similarly held that defendants granted relief under a state counterpart to the FFOA should be given the same treatment. See Matter of Deris, 20 I. N. Dec. 5, 11 (BIA 1989); Matter of Werk, 16 I. N. Dec. 234, 236-37 (BIA 1977) (concerning the predecessor statute to the current FFOA). However, in determining whether a state defendant was covered under this rule, the BIA generally focused on the procedural details of the state rehabilitative statute in question.
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 IN Dec. 234 (BIA 1977). At that time, some states had "counterparts" to the federal government's Act โ parallel laws which provided for the expungement of a first offense for simple possession of narcotics under state law.
History has provided an ever-changing answer to that question. See In re 0-T-, 4 I. N. Dec. 265, 268 (B.I.A. 1951) ("yes"); In re A-F-, 8 I. N. Dec. 429, 445 (Att'y Gen.1959) ("no"); In re Werk, 16 I. N. Dec. 234, 235-36 (B.I.A. 1977) ("yes, in some circumstances"); Garberding v. INS, 30 F.3d 1187, 1190-91 (9th Cir. 1994) ("no"); In re Manrique, 21 I. N. Dec. 58, 62-64 (B.I.A. 1995) ("no"). Against that backdrop, in 1996, Congress enacted significant changes to our immigration laws, which included a new definition of the term "conviction."
See Rice, 597 F.3d at 957-58 (Ikuta, J., concurring) (arguing that we should revisit this rule); Ramirez-Altamirano v. Holder, 563 F.3d 800, 816-17 (9th Cir. 2009) (Ikuta, J., dissenting) (same); see also Dillingham v. INS, 267 F.3d 996, 1012-13 (9th Cir. 2001) (Fernandez, J., dissenting) (suggesting that the rule is incorrect but concluding that, "for purposes of this case, that is neither here nor there"). In the years following the 1970 enactment of the Federal First Offender Act ("FFOA"), the BIA held that an expunged state conviction for simple possession of drugs was not a "conviction" for purposes of the immigration laws, provided that the state expungement statute was a "state counterpart" to the FFOA In re Deris, 20 I. N. Dec. 5, 11 (B.I.A. 1989); In re Werk, 16 I. N. Dec. 234, 235 (B.I.A. 1977). In many states, the state expungement statute qualified as a "state counterpart" to the FFOA and an alien's expunged conviction generally had no bearing on his or her rights under the immigration laws.
After the FFOA was enacted, the BIA held that a drug offense that had been expunged under the FFOA โ or a state law "counterpart" to the FFOA โ was not a conviction for immigration purposes and could not serve as a basis for deportation. Matter of Werk, 16 I. N. Dec. 234, 236 (BIA 1977). The BIA defined a state law "counterpart" of the federal act to be a state rehabilitative statute that was not broader in scope than the FFOA.
After the enactment of the FFOA, the BIA ruled that a first-time drug possession offense expunged under the FFOA was not a conviction for immigration purposes. Matter of Werk, 16 I. N. Dec. 234, 236, 1977 WL 39259 (BIA 1977). This rule gradually was expanded to aliens with state convictions similar to those covered by the FFOA.
Earlier, the BIA had ruled that a first-time drug-possession offense expunged under the FFOA was not a conviction for immigration purposes. See Matter of Werk, 16 I N Dec. 234 (BIA 1977). The Ninth Circuit held that as a matter of due process, aliens who committed a state drug offense and were rehabilitated under a state statute that mirrored the FFOA, also did not have a conviction for immigration purposes.
After the enactment of the FFOA, however, the INS changed its policy on expungements. In Matter of Werk, 16 I. N. Dec. 234 (BIA 1977), the BIA held that a drug offense expunged under the FFOA, or under any of the various state law "counterparts" to the FFOA, was not a conviction for immigration purposes and, therefore, could not serve as a predicate for deportation. A state law "counterpart" was identified by the BIA as a state rehabilitative statute that was no "broader in scope than the FFOA."
The INS also considers Wisconsin Statute ยง 161.47 to be a counterpart to the FFOA. In re Werk, 16 I N Dec. 234 (BIA 1977). Because there is no rational basis for the BIA treating Garberding differently from an alien whose conviction for first time marijuana possession is expunged under a state statute which is the exact counterpart of the FFOA, singling her out for deportation is wholly irrational.