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Nunez-Reyes v. Holder Reverses Ninth Circuit Expungement Position

By Robyn Hagan Cain on July 15, 2011 | Last updated on March 21, 2019

The Ninth Circuit confirmed this week that the past can come back to haunt you, even when it’s been expunged. In a surprising policy shift, the court reversed its equal protection holding in Lujan-Armendariz v. INS so that expungement of a state-law conviction for simple drug possession no longer insulates an alien from deportation.

The court’s opinion in Nunez-Reyes v. Holder affirms a Board of Immigration Appeals decision to deny Flavio Nunez-Reyes’s application for cancellation of removal. Nunez-Reyes, a native and citizen of Mexico who entered the U.S. in 1992, pleaded guilty in California state court to felony and misdemeanor drug charges in 2001. Although the state dismissed the charges after Nunez-Reyes satisfied the terms of his probation, the federal government used the expunged simple drug possession conviction as grounds to charge Nunez-Reyes as removable.

The Nunez-Reyes decision demonstrates a change in the Ninth Circuit's interpretation of the Federal First Offender Act, which disallows the use of a successfully expunged federal conviction for immigration disqualification. Prior to Nunez-Reyes, the Ninth Circuit was the only appellate circuit to rule that aliens convicted of federal drug crimes should not be treated more leniently than aliens convicted of state drug crimes. The court now says that equal protection does not require the courts to treat all drug crime expungements equally because state and federal first offender programs differ, and not all states permit expungement.

Aliens with past state drug expungements can breathe a sigh of relief: the Ninth Circuit's holding in Nunez-Reyes holding will only apply prospectively.

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