Roberta Charmaine Garberding v. Immigration & Naturalization Service

Roberta Charmaine Garberding is a 42-year-old Canadian citizen in the United States as a lawful permanent resident. She pleaded guilty in Montana state court to possession of more than sixty grams of marijuana, a felony. She was placed on probation and imposition of sentence was suspended for three years.

When the Immigration Service learned of her criminal conviction it charged her with deportability under 8 U.S.C. § 1251 (a)(ll) (1988). Under this section, an alien who has been convicted of violating any law or regulation relating to a controlled substance (marijuana possession falls in this category) is subject to deportation.

Before her deportation hearing, the Montana state court permitted Garberding to withdraw her guilty plea and enter a plea of not guilty. The court then dismissed the marijuana possession charge nunc pro tunc, pursuant to Montana Code Annotated § 46-18-204.

At her deportation hearing, Garberding argued Montana’s expungement statutes are the functional equivalent of the Federal First Offender Act (FFOA), 18 U.S.C. § 3607 (1988). Had her conviction been expunged under the FFOA or a state expungement statute which was the exact counterpart of the FFOA, she…