9th Circuit Overrules Lujan-Armendariz and its Federal First Offender Act Exception

Acknowledging that it was out of line with eight other circuit courts, the Ninth has chosen to explicitly overrule its decision in Lujan-Armendariz v. INS, 222 F.2nd 728 (9th Cir. 2000), which held that an a single state court conviction for simple drug possession, later expunged by the state court based on rehabilitation, was no longer a conviction for any legal purpose, including immigration.

The Lujan case created a significant exception in immigration law that permitted many non-citizens to be eligible for a variety of immigration benefits, but only in the Ninth Circuit. In fact, the case was of special interest to me, as I have successfully used it to assist a number of clients. Last year, I wrote an article published in Lexis-Bender’s Immigration Bulletin, a national immigration law journal, pointing out this odd and potentially useful difference in rules of admissibility and removal for the Ninth Circuit.

Basically, the Ninth Circuit has had a legal standard for simple drug possession offenders that is more forgiving than all of the other circuits. I found it fascinating that one rule of federal immigration law could apply in California (or any other state in the Ninth), but then not apply in another state, such as Virginia or New York. Nonetheless, that is the way our system works with the federal circuit courts, and it is incumbent upon attorneys to find such nuances in the law and use them to their client’s advantage. There may some day come a day when we will have a unified court system for immigration matters, such as is the case for bankruptcy courts, but that day in not here or even near.

In any event, along now comes the decision of Nunez-Reyes v. Holder, (No. 05-74350 Filed July 14, 2011), which does away with this legal inequity, by explicitly overruling the 11 year old Lujan decision. Immigration advocates knew this might be coming, but it was nonetheless disappointing to find the Court explicitly acquiescing to the reasoning and rule of the other eight Circuit Courts, particularly when the original decision was based on a sound interpretation of the Equal Protection Clause.

The one positive point to the Nunez-Reyes decision, from an immigrant advocate’s point of view, is the decision is to be applied prospectively. This means that it will only apply to convictions after the issuance of the decision. The decision explicitly acknowledged Padilla v. Kentucky in regards to the fact that non-citizens enter into plea agreements based in part on immigration considerations. Presumably, then, a person who has a simple drug possession conviction in recent years—but has not yet completed rehabilitation or had the conviction expunged—such a person could still avail themselves of the Ninth’s former exception.