Immigrant Legal Resource Center, www.ilrc.org § N.2 Definition of Conviction
April 2019
• The conviction can have taken place in any jurisdiction – any state or country.
The conviction
must have been treated under some form of rehabilitative relief in that jurisdiction. The particular
type of rehabilitative relief does not matter.
• It was the person’s first drug conviction/s. The Lujan-Armendariz benefit should apply to
multiple pleas in the same, first hearing as long as the person has no drug priors.
• The conviction was for simple possession,
possession of paraphernalia or another offense less
serious than possession and not covered under federal law,
or giving away a small amount of
marijuana,
but Lujan-Armendariz does not apply to convictions for being under the influence.
• The person was not found to have violated probation,
and did not participate in any earlier
diversion program, including pretrial diversion.
Arguably these two disqualifiers do not apply
to people who were under age 21 when they committed the offense, because they come within a
different FFOA provision, 18 USC § 3607(c).
Example: Yali resides in California, but she pled guilty to a first drug offense, possession of
cocaine, in January 2011 in New York. She completed probation conditions there without a
problem and had no prior pre-plea diversion. She received an expungement under New York
law in July 2018. She does not have a conviction for any immigration purposes, as long as the
proceedings arise within Ninth Circuit states, including California. But if she were to move
back to New York, she would have a conviction for immigration purposes.
WARNING: NINTH CIRCUIT ONLY: This benefit is only recognized in immigration proceedings
held in Ninth Circuit states. If ICE detains an undocumented resident of California and transports her to
detention and removal proceedings in Texas, or if a permanent resident takes a trip and is stopped when
re-entering the U.S. at the Miami airport, the disposition will be treated as a conviction.
III. Not a Conviction: Pretrial Diversion, Pen C § 1000 (January 1, 2018)
For a conviction to exist under immigration law, the defendant must plead guilty or nolo contendere
before a judge, or the judge must find the person guilty. INA § 101(a)(48)(A), 8 USC § 1101(a)(48)(A).
As of January 1, 2018, California has a pretrial diversion program. See Pen C § 1000 et seq., amended
effective Jan. 1, 2018 by AB 208 (Eggman). The program does not require a guilty plea. Rather, a
Dillingham v. INS, 267 F.3d 996 (9
th
Cir. 2001) (foreign rehabilitative relief eliminates foreign conviction).
See, e.g., discussion of different types of rehabilitative relief in Lujan-Armendariz at n.18.
The FFOA provides that the person must not have been convicted of a drug offense “prior to the commission of
the” instant offense. 18 USC § 3607(a)(2). A person can use Lujan-Armendariz to eliminate multiple offenses pled
to in the same hearing. See Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1219 (9th Cir. 2016).
The FFOA requires the person to have been charged with an offense listed at 21 USC § 844. See 18 USC 3607(a)
(first sentence). Section 844 includes simple possession, whether felony or misdemeanor.
Cardenas- Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).
21 USC § 841(b)(4) provides that a conviction for “distributing a small amount of marijuana for no remuneration
shall be treated as provided in section 844 of this title and section 3607 of Title 18 [the FFOA].”
Nunez-Reyes, supra.
Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009).
De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007).