Friday, July 15, 2011

Ninth Circuit Abandons Lujan-Armendariz Re: Minor Drug Offenses

From Kathy Brady of the Immigrant Legal Resource Center:

[Yesterday] the Ninth Circuit en banc withdrew from the Lujan-Armendariz decision and held that "rehabilitative relief" will no longer eliminate a first conviction for simple possession or a similar other minor drug offense.   Generally, rehabilitative relief is expungement or other withdrawal of plea after successful completion of probation, such as, in California, under DEJ, P.C. 1203.4, or Prop 36.   See decision in Nunez-Reyes v. Holder at www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf

The good news is that the opinion will apply only PROSPECTIVELY.  Convictions received after the date of publication of the opinion -- i.e. beginning July 15 or perhaps today -- will not get the benefit.   The Court held:

"For those aliens convicted before the publication date of this decision,  Lujan-Armendariz applies.   For those aliens convicted after  the   publication date  of   this  decision,   Lujan-Armendariz is overruled."

Example:  Marcy pled guilty to possession of meth in April 2011.  She will get it expunged in January 2012.  The expungement will get rid of the conviction for immigration purposes. For example, Marcy will be able to immigrate through a family visa petition. 
But if Tracy pleads guilty to the same offense on July 15, 2011, an expungement never will help.   She will need to get the conviction vacated on grounds of legal invalidity -- a difficult and expensive process.

In addition, the court held that being under the influence of a drug is not subject to Lujan, and it will apply that rule retroactively.

Example: Maurice pled guilty to being under the influence of methamphetamines, not to possession.  He completed probation and withdrew the plea in 2009, and thought this was all right under Lujan.  The Lujan rule still would apply to his conviction, because it occurred before July 14, 2011.   However, the court has held that under the influence never should have been covered by Lujan in the first place. Therefore in any immigration proceedings taking place today, he will have a conviction.

We'll analyze the decision later, but we want to get the word out, especially to immigration and criminal defense advocates in Ninth Circuit states.  Many thanks to the many people who worked so hard on amici briefs in Nunez, and who at least got the prospective-only ruling.

Katherine Brady
Senior Staff Attorney
Immigrant Legal Resource Center
1663 Mission Street, Suite 602
San Francisco CA 94103

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