I. Introduction

Approximately “70 million people in the United States have a criminal record.”^[1] In the United States, the total “foreign-born population (documented and undocumented) hit 47 million in April of 2022.”^[2] In the Fiscal Year of 2020, Enforcement and Removal Operations (“ERO”) of the U.S. Immigration and Customs Enforcement (ICE) conducted 103,603 administrative arrests where 90 percent of those arrests had criminal convictions or pending criminal charges at the time of the arrest."^[3] Altogether there were more than “374,000 criminal convictions and pending charges, and ICE ERO enforcement activities resulted in 4,360 criminal arrests, 4,479 charges, and 5,397 convictions.”^[4] As of late 2022, “ICE held 30,001 in ICE detention and out of 30,001 people 69.1% of them had no criminal record.”^[5]

In 2017, a post-conviction relief petition was filed on behalf of J.G., an undocumented woman charged with endangering the welfare of her grandson; C.L.^[6] J.G. entered her plea of guilty after being in police custody for over a month.^[7] Shortly after her guilty plea, she was sentenced to three years of probation, with credit for time served of 134 days.^[8] J.G. pled guilty because it was her first and only time in jail, and she was a caregiver to her ill father.^[9] Absence from her caregiving duties caused a great deal of hardship, so pleading guilty allowed J.G. to expedite her release and take advantage of her non-custodial plea offer.^[10] However, when J.G. made her plea, she was under the impression from her attorney that if she did not plead guilty, she was going to spend an exceeding amount of time in jail with or without a trial because she was also being held on an immigration detainer.^[11] Given the circumstances, J.G.'s guilty plea was taken under duress. Nevertheless, years later, she sought counsel to file a post-conviction relief petition because she faced the possibility of deportation. After much work from her attorney, the Somerset County Superior Court granted J.G.'s post-conviction relief petition.

Stories like J.G. are common. Presidential administrations, from Ronald Reagan’s to Joe Biden’s, have removed numerous people who have committed a crime and were not legal.^[12] Any United States citizen convicted of committing a crime can get an expungement or file a petition for post-conviction relief. Whether these options are available to alleviate the hardships of a criminal record depends on the crime an individual was charged with. Undocumented people have more obstacles to relieving themselves of criminal convictions.

Some of those obstacles include gaining employment, limited housing access, and other difficulties in obtaining basic needs and services. Despite those efforts to take legal action, undocumented people will still face detainment with ICE and potential deportation. In pursuit of their objectives, legal institutions have weighed in on the issue. Congress and courts around the country have attempted to use legal means to resolve immigration issues concerning criminal convictions. As a result, “non-citizens may still face deportation for a ‘conviction’ under federal immigration law even if under state or federal criminal law they have avoided the conviction by pleading no contest or entering into deferred adjudication program.”^[13] On January 25, 2017, “President Donald Trump signed an executive order called ‘enhancing public safety in the interior of the United States’ which expanded immigration enforcement priorities and called for a dramatic increase in the administration’s new priorities.”^[14] Some of these priorities included “people who have ‘been convicted of any criminal offense,’ people charged with but not yet convicted of any crime, and anyone who has ‘committed acts that constitute a chargeable offense.’”^[15] Cleaning a record is possible for immigrants, although some limitations are presented. This article reviews the legal history regarding the nexus of crimes and deportation, how it started, and where we are today. This article also compares post-conviction relief petitions and expungements to explore which conviction relief process is better, if any, by exploring cases and the conviction relief processes.

II. Consequences of being charged with a crime if undocumented

State and federal law, judicial procedure, and prosecutorial practices impose extraordinary burdens on non-citizen criminal defendants. The Immigration and Nationality Act § 237 (8 U.S.C. 1227) defines “classes of deportable aliens” and lists which criminal offenses will lead to deportation.^[16] For much of immigration law’s history, “immigration judges, state and federal sentencing judges in criminal cases concerning non-citizens, were initially granted a large measure of equitable discretion.”^[17] In 1882, the first major immigration law, the Immigration Act, was enacted, “which gave the government the power to deny entry to ‘convicts’ and in 1891.”^[18] The Immigration Act created the I.N.S. (“Immigration and Natural Services”) to enforce U.S. immigration law until it was replaced by the Department of Homeland Security in 2003.^[19] Initially, when Congress first enacted laws that could lead to immigrant deportation in 1988, “only serious crimes such as murder, drug trafficking, and firearms trafficking were deportable offenses.”^[20]

In the late 20^th century, “congress amended the immigration code which heralded the rise of criminal history, very broadly defined … and as a result of the statutory shift, considerations of equity enter the deportation system (if at all) primarily through the discretionary decisions of enforcement actors on federal and state levels.”^[21] In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) strengthened the U.S. immigration laws. As a result, “non-citizens who are convicted of relatively minor crimes, including misdemeanors, face harsh immigration consequences because this act expanded criminal grounds for inadmissibility and deportability.”^[22] The IIRIRA “restricted the relief available to non-citizens seeking admission into the United States.”^[23] Initially, the Board of Immigration Appeals (BIA)^[24] “started to address the issue of post-conviction relief in the 1940s and 1950s and held that post-conviction relief, which did not challenge the merits of the convictions, were effective to eliminate the grounds for deportation.”^[25] Over the years, addressing the issue of post-conviction relief has turned into a tug-of-war between laws changing, acts being enforced by ICE, and presidential administrations changing how to deal with immigration in general. Among federal programs, only in applications for Deferred Action for Childhood Arrival (DACA) status do criminal convictions not count against applicants.^[26] Moreover, the Chevron doctrine, plays a role in how criminal convictions affect possible deportation.^[27] Chevron is an interpretive rule that compels judicial deference. . . to administrative action.^[28] Although it is not mentioned much in recent cases from the BIA, the Chevron doctrine has historically played a role when both the courts and the BIA interpret convictions. The Chevron doctrine “shifted power from courts to agencies by creating a space within which judges were required to defer to agency interpretations of statutes . . . and judges were permitted to replace the agency’s interpretations with their own.”^[29] Chevron “demanded deference to agency interpretation from judges, at least in the range of cases where congressional intent was clear.”^[30] As a result, how criminal records affect possible deportation can be up to agencies and not (entirely) up to courts or statutes.

Undocumented people can be deported for crimes defined as crimes to “deceive, damage, or threaten the public welfare and trusts.”^[31] There are “twenty-eight offenses, including crimes that are neither aggravated nor felonies under criminal law.”^[32] However, they are explicitly categorized as “aggravated felonies, crimes involving moral turpitude, [and] controlled substance offenses.”^[33] Moreover, the federal government “expanded the deportation consequences of criminal offenses in other ways [using federal law treat] deferred adjudication programs as convictions for immigration purposes if the defendant must plead guilty to qualify.”^[34] For example, the IIRIRA defines “conviction” for purposes of an expungement and post-conviction relief petition:

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.^[35]

This legal apparatus compels guilty pleas. Under the current system, whether non-citizens are charged with a crime “depends upon state and federal criminal processes [that] identify, charge, and convict . . . [in] these criminal proceedings th[at] form the basis grounds for deportation in the federal immigration system.”^[36] Within this legal framework, undocumented people charged with a crime—balancing financial matters, family obligations, uncertain of whether they will be deported, and who are often first-time offenders—will usually take a guilty plea to avoid any more time detained.

A. The Start of the Tug of War Between State and Federal Laws in the Supreme Court

Non-citizen criminal defendants must navigate both state and federal law. The lines between state and federal jurisdiction have evolved. Before the Supreme Court resolved the balance between state and federal authority in Arizona v. United States, 567 U.S. 387 (2012), “a number of states passed laws attempting to give state and local officials a larger role in enforcing restrictions on certain aspects of immigration law.”^[37] In 2012, the Supreme Court settled the balance and “struck down most of the challenged provisions of Arizona’s omnibus law, which essentially had created a state-level branch of the federal immigration enforcement system . . . .”^[38] Notably, the Court wrote that “the equity in the deportation scheme today depends almost entirely on the exercise of prosecutorial discretion.”^[39] Addressing the challenged statutory provisions of the Arizona statute, the Court explained that “its preemption rulings in light of the value of the executive’s implementation of equity through control over enforcement decisions, emphasiz[e] the risk posed to the ‘integrated scheme’ of regulation created by congress . . . .”^[40] The Court “recognized the executive’s role in setting deportation policy encompassing decisions not to enforce laws against deportable citizens.”^[41] Yet the outcome in Arizona was mixed. The Court ruled that the federal government has “broad, undoubted power over immigration and alien status but the lower courts in Arizona erred in deciding that federal law also preempts Arizona’s requirement for law enforcement officers to verify the legal status of all arrestees and detainees.”^[42] By allowing the state to exercise powers historically left to the federal government, Arizona marks the modern division of power between state and federal immigration authorities.

B. The Sixth Amendment and the Special Risk of Unfairness

The Supreme Court’s ruling in Padilla v. Kentucky, 559 U.S. 356 (2019), imposed an affirmative duty on defense attorneys to warn criminal defendants of the deportation consequences that will flow from a guilty plea. Yet, efforts by state courts to apply the holding in Padilla have been flawed, much like the problems stemming from federal and state actions that affect immigration. As a result, even after Padilla, a non-citizen criminal defendant, often pleads guilty without realizing the deportation consequences.

In that case, Padilla was “arrested for transporting a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.”^[43] After entering a guilty plea, Padilla claimed, “that his counsel not only failed to advise him of the consequence of being deported prior to entering the guilty plea, but that he ‘didn’t have to worry about immigration status since he had been in the country so long.’”^[44] Relying on this legal advice, Padilla’s guilty plea nonetheless guaranteed his deportation.^[45] Padilla appealed after his post-conviction relief petition was denied without the benefit of an evidentiary hearing.^[46] On appeal, the Supreme Court reviewed Padilla’s case according to the Strickland standard^[47], “the performance prong . . . [of] which provides that counsel’s representation must not f[a]ll below an objective standard of reasonableness and the prejudice prong, which requires a reasonable probability that the deficient performance affected the result.”^[48]

Reviewing Padilla’s ineffective assistance of counsel claim under the Strickland standard, the court determined that “Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of 8 U.S.C. § 1227(a)(2)(B)(i), which specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.”^[49] After making his guilty plea, his attorney offered Padilla false reassurance that he would not be deported. Therefore, the court ruled that his counsel’s representation fell below an objective standard of reasonableness.^[50]

The Supreme Court did not, however, discuss “the prejudice requirement of a claim of ineffective assistance of counsel under the second prong of Strickland and did not reach this issue because the Kentucky courts had held that under no circumstances could affirmatively misadvise constitute ineffective assistance of counsel, because the immigration consequences were collateral.”^[51] The Padilla Court ultimately “held that affirmative misadvise about the immigration consequences of a plea could constitute ineffective assistance, but that a failure to advise was also a violation of counsel’s duty.”^[52]

The constitutional holding in Padilla supports equity for non-citizen criminal defendants at risk of deportation by recognizing that such persons are vulnerable to a “special risk” in such proceedings and protecting them from it.^[53] After Padilla, criminal defense attorneys now had an obligation to inform their clients about potential immigration consequences of certain criminal pleas and convictions.^[54] The Court also found that “in some circumstances a criminal defense attorney is obligated to affirmatively and accurately advise a non-citizen client about the deportation consequences of a plea and failure to provide this advice may constitute ineffective assistance and will preclude removal based on that criminal activity.”^[55] This duty arises only when it’s clear that a client will be deported based on their guilty plea and convictions. It also requires state courts to determine whether the attorney’s analysis of immigration law is correct.^[56] Under this standard, a defense attorney must investigate and relay that information to a client, whether the certainty of deportation is apparent.^[57] In reviewing whether an attorney complied with the standard, a state court must determine “whether the deportation consequence is obvious to determine whether the clear advice duty applies and if it does, the court has to then decide whether the defense attorney satisfied that duty by correctly advising their non-citizen client about that consequence.”^[58] While the Padilla decision may have determined that there is a facet of the Sixth Amendment right to counsel that requires an explanation of the deportation consequences of taking a particular criminal plea question remains.

The application of the ruling in Padilla has not been perfect. The complexity of the Sixth Amendment prompts courts to “determine whether deportation is a ‘clear’ consequence of pleading guilty to a particular criminal offense . . . which stems in large part from the INA, regulatory provisions enacted to implement the INA, and the decisions of the BIA and federal courts regarding the proper analysis of the INA’s requirements.”^[59] Yet, state courts are left to interpret immigration laws that they are not equipped to interpret. As a result, “courts will routinely misinterpret removal law resulting in incorrect adjudication of Padilla claims or avoiding the analysis of immigration law that Padilla obligates them to perform.”^[60] For a state court to determine (since Padilla) “whether a defense attorney accurately advised an undocumented client about deportation as a result of pleading guilty, the state court must have the capacity to itself analyze the crime-related grounds for removal.”^[61]

Despite the Court’s holding in Padilla, “non-citizens commonly plead guilty to petty offenses without knowing that deportation will result . . . .” ^[62] But when defendants understand that a plea “may result in immigration consequences, time pressures and other endemic obstacles frustrate the ability to bargain for immigration safe disposition or mount a defense.”^[63] Further, Padilla does nothing to help non-citizen criminal defendants who have no legal counsel at all.^[64] Often, such persons plead guilty, with the risk of incarceration, without the benefit of a lawyer.^[65] As it stands, non-citizen defendants are often either “not informed of their right to counsel or told that they must negotiate directly with prosecutors, following which the defendants almost invariably waive counsel and plead guilty.”^[66] Still, the Padilla decision was a positive step toward improving equity for non-citizen criminal defendants caught between courts and the immigration system. Since this decision, many undocumented people with prior convictions have filed post-conviction relief petitions or expungements to relieve themselves of the deportation consequences.

III. Post-Conviction Relief

Post-conviction is defined as “the legal process which takes place after a criminal trial resulting in a conviction, guilty plea, or no-contest . . . .”^[67] A defendant may file a post-conviction challenge to a conviction or sentence after receiving a guilty verdict.^[68] The purpose of petitioners filing a post-conviction relief petition is to exonerate or modify an excessive or illegal sentence.^[69] If a judge approves the petition, the petitioner’s conviction is vacated, or an adjusted sentence is granted.^[70] However, a vacated conviction on the merits is not a conviction for immigration purposes.^[71] Therefore, anyone who is a non-citizen “with final orders of removal who secure qualifying post-conviction relief must additionally contend with the motion to reopen before an immigration judge or the BIA.”^[72] The most common forms of post-conviction relief are “motions for re-sentencing to avoid a conviction for an aggravated felony or other inadmissible or deportable crime, reducing the conviction from a felony to a misdemeanor, motion to withdraw a guilty or no-contest plea.”^[73]

When filing a post-conviction relief petition, “to eliminate the conviction for immigration purposes, counsel must vacate on a ground of legal invalidity that existed at the time the conviction first occurred.”^[74] The most common reasons for relief in this form are “lack of jurisdiction, newly discovered evidence, illegal sentence, improper application of jail and gap-time credit, and ineffective assistance of counsel.”^[75] Some exceptions to request an extension to file the petition (should they be needed) are “denial of a state constitutional right, an excessive sentence where the laws of any given state were not followed, a court that lacks jurisdiction to issue a sentence, or any other reason that represents a collateral attack on the conviction for habeas corpus or any other right.”^[76]

After Padilla, one of the most significant grounds of legal invalidity was created: ineffective assistance of counsel.^[77] Although an immigrant doesn’t need to vacate the original sentence on this ground for immigration purposes, the criminal court or prosecutor will sometimes disagree unless the sentence is legally invalid.^[78] Post-conviction relief petitions are determined on their own merits. When a petition is being considered, favorable factors that could work in favor of the petitioner are the number of years the person has lived in the U.S. or whether they have been an influential and respected member of the community.^[79]

Some challenges presented when filing a post-conviction relief petition are “when non-citizens plead guilty to a crime . . . the constitutional violation occurs in criminal court, but the penalty complained of occurs in federal immigration court, so people filing petitions to seek relief from a consequence that may be realized years later, over which the state criminal court has no jurisdiction.”^[80] Another challenge is the consequences of removal and the potential bar on reentry into the country being very harsh. As a result, many non-citizens will wish to challenge their plea after the sentence has been served, the person has been released, and supervision has ended.^[81] Finally, “significant time may elapse before the non-citizen even discovers the plea made him or her removable, often once a Notice to Appear in immigration court is severed, which at this point the mechanisms available to challenge the conviction [are] extremely limited.”^[82] Moreover, depending on a “particular state’s statute, there may be strict custodial requirements, strict timeliness, due diligence requirements, and the inconsistencies between the definition of conviction under state law and the INA causing a non-citizen to become removable without any possibility of raising post-conviction relief claims under state post-conviction relief statutes.”^[83]

Post-conviction relief, to avoid deportation, is not always available to a non-citizen criminal defendant, depending on the charges. For example, in a recent case, State v. Alvarez, Alvarez was “indicted for first- and second-degree sexual assault and was recommended a sentence of two years’ probation in exchange for his guilty plea to fourth-degree criminal sexual contact or third-degree criminal restraint.”^[84] Alvarez’s defense counsel “recommend he consult with immigration counsel about the deportation consequences of the plea and provided him with the names of three immigration lawyers along with a list of questions Alvarez should put to the one he selected.”^[85] When Alvarez retained one of the immigration lawyers, the immigration lawyer advised the defense counsel that “he pled guilty to shoplifting in New York in 2016, a crime of moral turpitude, and would therefore make him deportable.”^[86] The advice that was given from the immigration attorney to the defense attorney was to get “pre-trial intervention not conditioned on a guilty plea.”^[87]

Since Alvarez rejected the plea offer and took his case to trial, he was found guilty and convicted of first-degree aggravated sexual assault under N.J.S.A. 2C: 14-2(a)(7) and sentenced to 15 years in State prison, subject to periods of parole ineligibility and supervision required. ^[88] Alvarez filed a petition for post-conviction relief alleging that “his plea counsel and the lawyer he retained to provide him immigration advice were both ineffective because they provided him incorrect advice on his ability to accept the plea and avoid deportation.”^[89] Alvarez “claimed that his plea counsel’s failure to correct the immigration lawyer’s mistake about his criminal history resulted in incorrect advice on which he relied in rejecting his plea and that if he wasn’t provided this advice, he would have accepted in the plea which resulted in no jail time and avoid deportation.”^[90] The Superior Court of New Jersey concluded that, after applying the Strickland standard, the first prong was not met because the immigration lawyer did not enter an appearance in Alvarez’s criminal case, so “plea counsel was not responsible to identify and bring to the attention of immigration counsel factual errors in that lawyer’s advice that could affect that lawyer’s opinion.”^[91] The second prong was also not met because “Alvarez could not have lawfully accepted a plea to either criminal sexual contact or criminal restraint, regardless of any deficient advice about the deportation consequences of either and thus cannot establish prejudice resulting from the advice.”^[92]

Post-conviction relief and whether immigration status is affected by criminal convictions can depend on the way a court disposes of a criminal trial. In 2021, State v. Florencio-Santiago, a state appellate court, granted Florencio-Santiago’s petition for post-conviction after initially denying the petition.^[93] Florencio-Santiago was charged with second-degree assault and pled guilty to this charge.^[94] As part of his plea agreement, “the State of Maryland agreed to ask that the court dispose of the charge through probation before judgment.”^[95] Mr. Florencio-Santiago “was granted a probation before judgment and paced on supervised probation for 360 days with the special condition that he stayed away from the victim in the case.”^[96] Since Florencio-Santiago “was granted Deferred Action for Childhood Arrivals (DACA) status, pleading guilty to second-degree assault related to domestic violence put his status in jeopardy.”^[97] When he filed for post-conviction relief, he testified that “his attorney never asked him about his immigration status and never told him that he could be deported for pleading guilty to a charge that was domestically related.”^[98] Instead, his attorney testified that he advised Florencio-Santiago about the possibility of being deported, along with his DACA status being at risk.^[99] It was initially decided that Florencio-Santiago’s attorney provided ineffective assistance of counsel because “he failed to ask about his immigration status before he pled guilty, failed to discuss the consequences of pleading guilty with his law firm’s immigration team, and failed to advise him that a guilty plea in a domestic violence case would prevent him from renewing his DACA status.”^[100] The Court of Appeals reversed the decision to grant the post-conviction relief petition because “in the Maryland Postconviction Procedure Act, it didn’t authorize a court to grant relief in a case in which the trial court granted the defendant a probation before judgment and never entered a guilty verdict.”^[101] Relying on precedent, it was concluded that “the criminal proceeding resulting in the probation before judgment could not be collaterally attacked by a post-conviction proceeding unless the probation before judgment is subsequently revoked and a formal judgment is entered.”^[102]

When people file for post-conviction relief petitions, they hope their petition is granted and their sentence is vacated. However, immigrants who run into legal issues face much more than a petition being denied. As shown in these cases, and many more, immigrants who have filed post-conviction relief petitions have been met with the challenge of having the petition approved and appealing their deportation to the B.I.A. in the hopes that they remain in the country.

IV. Expungements

Expungements do not usually help a non-citizen convicted defendant avoid deportation. Expungement in the law is “the process by which a record of criminal conviction is destroyed or sealed rom state or federal record . . . the expungement order directs the court to treat criminal convictions as if they never occurred.”^[103] Expungement petitions are mainly proceedings in state court and, on rare occasions, federal court. Each state has laws about whose records and convictions can be expunged.^[104] Expungements only remove an arrest or conviction record from the system without altering the legal legitimacy of a conviction; however, getting an expungement doesn’t help with immigration-related issues.^[105] Expungements, “rarely offer any benefit for immigration purposes because I.C.E. maintains its own records that are unaffected by state-level expungements mechanisms.”^[106] Even if an individual gets an expungement petition approved, it does not affect their immigration status, and immigration law will still treat those who have obtained expungements as convicts.^[107]

In addition to not helping a person avoid deportation, an expungement petition may make it more difficult for a non-citizen person to apply for immigration services. For example, “expunging the actual criminal record may complicate immigration proceedings by eliminating the documentation that is required for certain immigration applications.”^[108] Another issue is that filing for an expungement could “put the person at risk contact with immigration authorities, generally.”^[109] In some jurisdictions, the criminal record may be destroyed on a state level if the expungement petition is granted. However, immigration authorities will still have a record of the initial arrest because ICE maintains its own database of criminal records.^[110] Furthermore, applicants for immigration relief are “generally required to report all arrests and convictions including expunged records, and, if they fail to do so, they can be denied relief. Finally, since clients have the burden of proving what happened in their criminal case, expungements may hinder their ability to obtain necessary documentation to do so.”^[111]

Even if an expungement petition is granted by a particular state, depending on the crime being expunged, federal immigration agencies can still reject the expungement petition for certain crimes.^[112] Initially, in 1999, the BIA. “overturned precedent by interpreting the definition of conviction under the 1996 IIRIRA to void the effect of an expungement, even though the act did not expressly address the consequences of expungement.”^[113] Since then, courts nationwide have been determining if expungements would relieve petitioners from being deported.

Since the definition of conviction was placed in the IIRIRA statute, the B.I.A. decided in a variety of cases where undocumented people had their records expunged but still dealt with the promise of being deported. For example, the BIA decided in Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (B.I.A. March 3, 1999) “he pled guilty to possession of more than three ounces of marijuana, which was a felony in Idaho and since this was his first controlled substance offense, the Idaho court sentenced him to a fine and three years’ probation.”^[114] Afterward, in 1994, Roldan-Santoyo “petitioned for an expungement, based on his compliance with the terms of probation, and the court eventually vacated his guilty plea.”^[115] Even though the expungement petition was granted, the immigration judge ruled that the petitioner remained convicted for immigration purposes and the BIA affirmed this order."^[116] It was determined that despite having the expungement petition approved, because “the federal definition provided for what constitutes a conviction for immigration purposes . . . it was determined that a state action that purports to abrogate what would otherwise be a conviction . . . has no effect on determining whether an alien has been convicted for immigration purposes.”^[117]

In 2000, the Ninth Circuit decided if Hector Tito Lujan-Armendariz (Lujan) was still convicted even with expunging his state record for federal immigration purposes. Lujan was “found guilty of first-time simple possession and attempted simple possession or narcotics.”^[118] The state court “suspended imposition of his sentence and ordered him to serve five years of probation, so subsequently the INS sought to deport him based on the offense.”^[119] The decision from the BIA to deport Lujan was denied because “the new definition of ‘conviction’ for immigration purposes doesn’t repeal either the Federal First Offender Act (FFOA) or the rule that no alien may be deported based on an offense that could have been tried under the act, but is instead prosecuted under state law, where the findings are expunged.”^[120] The court noted in this opinion that “[C]ongress did not attempt to alter the longstanding BIA rule that convictions that are subsequently overruled, vacated, or otherwise erased no longer have any effect for immigration or most other purposes.”^[121]

Nine years later, in Nunez-Reyes v. Holder, Nunez-Reyes was charged with one felony count of possession of methamphetamine and one misdemeanor count of being under the influence of methamphetamine and pled guilty to both counts.^[122] Shortly after, “the federal government issued a notice for Nunez-Reyes to appear, charging him with being removable, so he conceded removability but applied for adjustment of status and cancellation of removal and the immigration judge denied all forms of relief and still ordered for removal.”^[123] Though the state court dismissed the conviction, Nunez-Reyes was ineligible for any relief under federal law, and the BIA affirmed the immigration judge’s decision.^[124] Although historically, the answer to whether a state-court conviction for simple possession that was later expunged is still a conviction for federal immigration purposes has varied across state courts, this court concluded that "the constitutional guarantee of equal protection doesn’t require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal conviction that has been expunged under the FFOA.^[125] INS counsel “offered no reason . . . why congress would have wanted aliens found guilty of federal drug crimes to be treated more leniently than aliens found guilty of state drug crimes.”^[126] Nunez-Reyes was convicted “of being under the influence of methamphetamine and is not a lesser crime than simple possession . . . and its thus qualitatively different from any federal conviction for which FFOA treatment would be available.”^[127] Nunez-Reyes shows that expungement in one justice system may not translate into any protection from deportation in another.

Other undocumented people who filed for expungements for non-drug-related crimes have faced the same scrutiny from the BIA as Nunez-Reyes, often with the same result. In addition, because Congress did not define what a “conviction” was under the IIRIRA, despite filing an expungement, many people have been deported for criminal convictions even after their convictions were expunged.^[128]

Throughout the years, much of what has occurred with immigrants and filing post-conviction relief petitions occurred with expungements. Although a criminal record has been vacated or expunged, there is still the issue of appealing a deportation order with a BIA. Because of the definition of conviction under the IIRIRA, anyone who appeals an order for deportation will have their appeal denied and deported. Overall, what should be a solution to decrease the number of deported individuals turned into a funnel to have more individuals deported for crimes as minor as a traffic ticket and as severe as a murder charge.

V. Suggestions to the battle between conviction relief and the immigration system

Every day, the tension between state and federal laws unnecessarily threatens individuals who plead guilty to criminal charges with the possibility of deportation. Congress created one definition of “conviction” for expungement and another for post-conviction relief; that verbiage comes with its own set of issues. Across the board, based on state statutes and the IIRIRA, conviction has different definitions. So, when cases are brought up to be expunged, or a petition for post-conviction relief is granted, undocumented people are still deported because the BIA determined that they were convicted of a crime. States “lack the incentive to expend time and resources addressing what is ultimately viewed as a federal immigration issue . . . "^[129] At the same time, immigration courts are federal civil courts, with no expertise in state criminal law and no power to overturn criminal convictions in the state courts.”^[130] One solution to resolve the issue that non-citizens face when filing any petition would be to adopt one definition. If “federal immigration courts interpret the definition of conviction under the INA, they may avoid deporting convicted persons for convictions that are invalid under Padilla.”^[131]

As another proposal, states should adopt standards that build on the Padilla rule. States should expressly require courts to advise undocumented people of deportation risks imposed on courts a duty to investigate and prohibit misinforming clients of immigration consequences before entering a plea.^[132] Additionally, Congress should “make a change in the system for it to operate with greater uniformity between state courts and federal immigration courts in the treatment of criminal convictions.”^[133] At the federal level, Congress should pass legislation that supports greater uniformity between state courts and federal immigration courts in the treatment of criminal convictions.^[134] Congress “could let courts and state legislatures work out the necessary changes, [and the] U.S. Supreme Court could resolve the circuit splits regarding immigrational issues and states could pass statutes requiring their courts to give immigration advisals.”^[135] Finally, if Congress should “eliminate minor crimes from the categories of deportable offenses, [which may] reduce the number of requests for post-conviction relief.”^[136]

VI. Conclusion

Immigrants who are convicted of crimes have more consequences than just a criminal record. The modern deportation system “subjects millions of long-term non-citizens to detention and removal, with little opportunity for formal consideration of whether these severe sanctions are justified in individual cases.”^[137] Since the enactment of IIRIRA, numerous people have submitted petitions hoping to delay deportation. Unfortunately, any guilty plea by a non-citizen criminal defendant—even a first-time offender—lends to the dead end of deportation. Many of the cases mentioned illustrate that courts are unwilling to depart from the language and interpretation of conviction outlined in the IIRIRA. Judicial and legislative changes that safeguard undocumented individuals would benefit the judicial system by reducing the number of post-conviction and expungement petitioners. Unchanged, non-citizen criminal defendants are simply not free from the particular risk of unfairness that the Supreme Court addressed in Padilla. By ignoring this problem, the justice system hurts people and makes its job harder.