One Strike, You're Out: The Ninth Circuit Denies Second Chance for First-Time Drug Offenders

Abstract

On July 14, 2011, in Nunez-Reyes v. Holder, the U.S. Court of Appeals for the Ninth Circuit filed an en banc opinion overruling Lujan-Armendariz v. INS in holding that, for immigration purposes, constitutional equal protection did not require treating state drug crime convictions that are expunged under state law the same as federal convictions expunged under the Federal First Offender Act. The court also overruled Rice v. Holder, holding that being under the influence of a drug is not a lesser offense than simple possession. In so doing, the Ninth Circuit frustrated Congress’s intent in enacting the Federal First Offender Act, and hindered courts’ ability to ensure equal protection of similarly situated aliens.