Thursday, April 25, 2002
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Misdemeanor Weapons Violator Subject to Deportation Even if Conviction Is Expunged, Appeals Court Rules
By a MetNews Staff Writer
Federal courts cannot review INS orders for the deportation of convicted firearms violators, even if the conviction has been expunged pursuant to state law, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The decision upholds an order that Jose Roberto Ramirez-Castro, a Honduran national, be deported as a consequence of his misdemeanor conviction of possessing a concealed firearm. The panel dismissed Ramirez’s petition for review, invoking a section of the 1996 immigration law that deprives courts of jurisdiction to review deportation orders based on convictions of certain crimes, including those involving guns.
Ramirez was placed on probation by the Los Angeles Municipal Court in 1991. One condition was that he serve 65 days in jail.
The INS began deportation proceedings while Ramirez—who came to the United States in 1978 and became a legal resident through the amnesty provision of the 1986 immigration law 11 years later—was on probation. An immigration judge ruled he was deportable, and he appealed to the Board of Immigration Appeals.
While the BIA appeal was pending, he completed probation and obtained an expungement under Penal Code Sec. 1203.4. He then moved to block deportation on the ground that he was no longer a convicted offender.
The BIA disagreed, reasoning that expungement under a rehabilitation statute such as California’s does not alter the status of a conviction for immigration purposes. Judge Susan Graber, writing yesterday for the Ninth Circuit, agreed and said the petition had to be dismissed under the 1996 law.
The judge distinguished Lujan-Armendariz v. Immigration and Naturalization Service, 222 F.3d 728 (9th Cir. 2000), in which the court held that the mandatory deportation provision—which generally applies to drug crimes—does not apply to first-time drug offenders whose convictions have been withheld or expunged under state law.
The court reasoned that because defendants whose convictions have been withheld under the Federal First Offender Act—which applies only to first-time drug offenders convicted of simple possession—are not treated as having been convicted for immigration purposes, those whose convictions have been expunged under state law should not be treated that way either.
The rule is the same, the panel added, whether the drug conviction has been withheld or set aside under a general rehabilitation law, such as Sec. 1203.4, or a law which, like the federal act, is specific to drug offenders.
But that decision does not extend to other crimes, such as weapons violations, Graber said.
The Ninth Circuit, she noted, has previously held that an expunged felony conviction remains a conviction for immigration purposes. Nothing in the 1996 statute, she said, indicates that an expunged misdemeanor conviction should be treated differently, nor is there any federal law equivalent to the First Offender Act regarding weapons convictions.
Congress, she suggested, intended to create a uniform rule, to which Lujan-Armendariz creates a single, limited exception.
Judge A. Wallace Tashima concurred in the opinion. Senior Judge Warren Ferguson concurred separately.
Ferguson suggested that a different result might obtain if a conviction is set aside under a law that treats an expungement as eliminating all adverse consequences. Sec. 1203.4 is not such a law, he noted, since it a conviction expunged under that law remains a conviction for purposes of any suspension or revocation of a driver’s license.
The case is Ramirez-Castro v. INS, 00-71589.
Copyright 2002, Metropolitan News Company