Resendiz-Alcaraz v. Ashcroft

Docket No. 03-13275

(11th Cir. Filed Sept. 10, 2004).

Petitioner Fidencio Resendiz-Alcaraz, a Mexican citizen, seeks review of a final removal order, which the Board of Immigration Appeals (BIA) affirmed.  Resendiz-Alcaraz entered the U.S. illegally in 1984.  Ten years later, he pled guilty to a Missouri charge of possession of less than thirty-five grams of marijuana, a class A misdemeanor under that state's law.  After a year of probation, the state court expunged Petitioner's conviction.  In 2001, the Immigration and Naturalization Service (INS) initiated removal proceedings because he had entered the U.S. without being admitted or paroled and had been convicted of a controlled substance offense.  Resendiz-Alcaraz seeks cancellation of removal, arguing that the state court expungement renders him free of a "conviction" for immigration purposes.  By statute, an alien is eligible for cancellation of removal when he can prove he has been continuously physically present in the U.S. for ten years, has good moral character, has no "conviction" of certain offenses, and that either he or his U.S. citizen/LPR spouse, parent, or child would suffer "exceptional and extremely unusual hardship" if he were removed.  The Immigration Judge (IJ) refused to grant Petitioner this relief and denied his motion for reconsideration, based on a prior BIA decision that a state court expungement does not absolve an alien of his drug conviction for immigration purposes.  The BIA affirmed.

The Court of Appeals for the Eleventh Circuit first holds that it lacks subject matter jurisdiction to review Resendiz-Alcaraz' final removal order because he remains a removable alien who committed an enumerated statutory offense, as his conviction evidences.  The Court rejects Petitioner's argument that because his state court expungement resulted from a rehabilitative initiative like that of the Federal First Offender Act (FFOA), he should receive the same treatment as if FFOA applied.  Under FFOA, expunged simple possession convictions are not treated as "convictions" under federal law.  The Court explains that the BIA used to treat state court expungements for first-time drug offenders similarly until Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.  Under IIRIRA, an alien has a "conviction" for immigration purposes if a judge or jury finds him guilty or he pleads guilty or no contest to the offense and a judge imposes punishment.  Resendiz-Alcaraz satisfies both of these conditions because he pled guilty and served a one-year probation.  Although IIRIRA effectively nullifies a state court expungement for immigration purposes, the Court defers to the BIA's explanation that Congress intended to create a more uniform definition of "conviction" to replace the inconsistencies that resulted from giving effect to various state expungement systems. 

Next, the Court considers Petitioner's constitutional challenges to IIRIRA.  Resendiz-Alcaraz argues that the statute violates equal protection because an alien prosecuted under federal law may avoid removal via the FFOA's recognition of expungements whereas an alien prosecuted under state law has no such opportunity.  The Court cites Congress' plenary power over the admission and exclusion of aliens and its ability to make distinctions among them.  Immigration legislation receives the most lenient form of judicial review.  It needs merely a "rational basis" to be upheld, and the challenger bears the burden to prove otherwise.  In holding that the different treatment for aliens prosecuted under federal and state law has a rational basis, the Court cites the Third Circuit's reasoning.  Congress recognizes expunged federal convictions because it is familiar with the federal justice system and can rest assured that an offender with an expunged conviction will not likely commit a serious crime in the future.  In contrast, Congress worries that overburdened state courts might allow a dangerous offender to plead to simple possession and therefore be eligible for an expunged conviction not recognized as a "conviction" under federal law.  Finally, the Court rejects Petitioner's argument that he was not given procedural due process.  Indeed, the Court notes that Resendiz-Alcaraz was given notice of the charges of removal and their basis.  He had an opportunity to contest the charges and his removability before an IJ and the BIA and to contest the BIA's characterization of his state conviction.  Therefore, the Court affirms the BIA's decision that Petitioner's conviction remains a "conviction" for immigration purposes, despite the state court expungement.