Skip to content

Flavio Nunez-Reyes v. Holder (en banc)

Today, July 14, 2011, is a dark day for immigration law in the Ninth Circuit. The en banc court overruled Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and held that state rehabilitative relief for a single conviction for possession of a controlled substance does not protect against immigration consequences. Attorneys who watched the brutal oral argument in this case (the video is available on the court's website) anticipated this outcome, but at least it came with a small consolation prize.

The Ninth Circuit held that its decision in Nunez-Reyes would have only prospective effect, citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) as authority for prospective application. Since the decision applies prospectively, Lujan-Armendariz continues to protect noncitizens "convicted" of simple possession before Nunez-Reyes's publication date of July 14, 2011. For noncitizens convicted after that date, Lujan-Armendariz is overruled. (The Court did not address whether noncitizens convicted "on" the publication date would continue to benefit from Lujan.)

Significantly, the language of Nunez-Reyes strongly supports the idea that the critical fact is whether the noncitizen pled guilty or no contest before the publication date. Persons who pled before today gave up their constitutional rights (to trial by jury, to confront witnesses, etc.) in reliance on Lujan-Armendariz, so they should not be "hoodwinked" into being deported for doing so. Whether they actually completed the requirements for rehabilitative relief before today, however, would seem to be irrelevant. Thus, expungements and other rehabilitative relief obtained after today should still be effective, so long as the plea occurred before today. The court did not explicitly say this, but the reasoning implies it.

Nunez-Reyes also overruled the court's recent decision in Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), and held that state rehabilitative relief did not protect against immigration consequences for a conviction of being under the influence of a controlled substance. Unlike Lujan, though, the court overruled Rice retroactively because it was such a recent decision that there was less reliance on it. It also distinguished being under the influence from possession, holding that the former was not a lesser offense (even though in California the former is a misdemeanor and the latter can be a felony). The court reasoned that dangerous behavior might accompany being under the influence of methamphetamine, but would not necessarily accompany simple possession. In short, though, rehabilitative relief does not protect against removal for being under the influence of a controlled substance, even if the plea occurred before today.

Nunez-Reyes does suggest, though, that possession of paraphernalia IS a lesser offense to possession (at least where the defendant pleads down from possession to paraphernalia). So, noncitizens would continue to benefit from Lujan if the paraphernalia plea occurred before today.

Read the opinion at