Christopher John Dillingham v. Immigration and Naturalization Service

*1012 FERNANDEZ, Circuit Judge,

Dissenting:

Dillingham argues that as a matter of constitutional law expungements in all of the countries of the world must be treated in the same manner as expungements within the United States because anything less would violate the principle of equal protection. I disagree.

While Congress could, no doubt, so decree, it is not compelled to do so by the Constitution. As in other equal protection claims, what we must ask is whether there was a rational basis for the choice made here. See City of New Orleans v. Dukes, 427 U.S. 297, 303 , 96 S.Ct. 2513, 2516-17 , 49 L.Ed.2d 511 (1976); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir.1999); Cecelia Packing Corp. v. United States Dep’t of Agric., 10 F.3d 616 , 625 (9th Cir.1993). And in the immigration area, that is applied in an even more relaxed manner than usual. See Nyquist v. Mauclet, 432 U.S. 1 , 7 n. 8, 97 S.Ct. 2120 , 2124 n. 8, 53 L.Ed.2d 63 (1977). That is because federal authority in this area is plenary. See Mendoza v. INS, 16 F.3d 335, 338 (9th Cir.1994). “The reasons that preclude judicial review of political questions ... dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” Mathews v. Diaz, 426 U.S. 67, 81-82 , 96 S.Ct. 1883, 1892 , 48 L.Ed.2d 478 (1976). We will only overturn a classification if it is “wholly irrational.” Id. at 83 , 96 S.Ct. at 1893.

I see nothing irrational in a determination that we will not treat aliens who obtain expungement of drug offenses in other countries in the same way that we treat those who obtain expungement of offenses in this country. Of course, under the Federal First Offender Act, 18 U.S.C. § 3607 , some simple drug possession convictions can be expunged. When they are, they are not used as a predicate for deportation; the Attorney General has so decided. On equal protection grounds, we have extended that to expungements under state laws. See Lujan-Armendariz v. INS, 222 F.3d 728, 737-38 (9th Cir.2000); Garberding v. INS, 30 F.3d 1187, 1191 (9th Cir.1994); see also Paredes-Urrestarazu v. INS, 36 F.3d 801, 811 (9th Cir.1994). One could question the idea that the Attorney General is required by the Constitution to treat state expungement statutes in the same way he treats the FFOA. Garberding itself did not say that, although it did decide that when the Attorney General determines that he will treat exact state counterparts of the FFOA in the way he treats the FFOA itself, he must then treat other state expungement statutes in a similar manner. Of course, for purposes of this case, that is neither here nor there.

As I see it, that is a far cry from stating that the Attorney General is equally required to treat the expungement statutes from all of the countries of the world in the same manner that he treats the FFOA and, by extension, state expungement statutes. It is no “mere fortuity” that foreign offenders are prosecuted in their own countries and not here. See Paredes, 36 F.3d at 812 . Nor do foreign expungement laws have anything to do with “ ‘uniform nationwide application of [our] immigration laws.’ ” Id. (citation omitted). In fact, foreign countries and their ways are not necessarily, or even particularly, the same as this country and its ways. A much more complex task is placed upon the shoulders of an administrative agency when it is told that it must not only review the varying ways and means of expunge-ments all over the world, but also the full records of aliens who have admittedly committed foreign offenses, not to mention the difficulties that can be encountered in authenticating the accuracy of those records.

*1013 Nor will it do to say that the burden will be on the alien. The next step in this process will most likely be a claim that the alien cannot be expected to get actual records from his country of origin. See Abovian v. INS, 219 F.3d 972, 978-79 (9th Cir.2000); Ramos-Vasquez v. INS, 57 F.3d 857, 862-63 (9th Cir.1995). And, even special authentication requirements for documents from other countries, where forgery may be rampant, are treated as suspect in this circuit. See Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.2001). That is not to say that it will be impossible to administer a system which requires ranging all over the world in that manner — we know that just as people can live in virtually any environment, they can ultimately live with and administer just about any kind of system, no matter how difficult. But it is to say that it is perfectly rational to decline to undertake that process. The Attorney General does not have to take on the burden of dealing with the rules and records of every country in the world simply because, at root, he decided to ignore convictions expunged under the FFOA.

In fine, equal protection does not require the progression we have here: recognition of FFOA expungements, to recognition of similar state statutes, to recognition of all state statutes and, finally, to recognition of enactments all over the world. To say that, does not enisle this country, although it does recognize that we are a separate nation. One world is a fine concept, but it is not a constitutional imperative. Not yet anyway.

Thus, I respectfully dissent.