dissenting:
The majority today holds that an alien whose state drug conviction is eligible for expungement under a state rehabilitative statute, but whose conviction has not yet been expunged, is not afforded the protection extended to aliens who have been sentenced under the Federal First Offender Act. Because I believe the majority misunderstands and misapplies our precedent, I respectfully dissent.
Petitioner Daniel Chavez-Perez is a first time drug offender. On July 18, 2001, when he was nineteen years old, he was convicted of possession of methamphetamine, a Class C felony under Oregon law. He was sentenced to 20 days in jail, 36 months on probation, and monetary penalties. Because Chavez-Perez was convicted of a Class C felony, he was eligible for expungement of his conviction at any time more than three years after the judgment of conviction, provided that he had “fully complied "with and performed the sentence of the court.” Or.Rev.Stat. § 137.225(l)(a), (5)(a). When the INS commenced removal proceedings against him, Chavez-Perez was not yet eligible for expungement of his conviction because three years had not elapsed from the date of his conviction. More than three years have now elapsed, but the present record is silent as to whether he has “fully complied with and performed the sentence of the court.”
As a general rule, aliens whose convictions have been expunged are still subject to removal based upon their expunged convictions. That is, a “conviction” remains a *1294“conviction” for purposes of 8 U.S.C. § 1227(a)(2) regardless of whether and when it has been expunged. See Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir.2002). However, the Federal First Offender Act (“FFOA”), 18 U.S.C. § 3607, contains an exception to this general rule. The FFOA is a “deferred adjudication” statute under which no judgment of conviction is entered if a convicted first offender complies with the terms of his probation. The FFOA “allows the court to sentence the defendant in a manner that prevents him from suffering any disability imposed by law on account of the finding of guilt.” Lujan-Armendariz v. INS, 222 F.3d 728, 735 (9th Cir.2000) (emphasis in original). If an alien is convicted under the FFOA but no judgment is ever entered because of successful completion of probation, the alien may not be removed under 8 U.S.C. § 1227(a)(2).
In Garberding v. INS, 30 F.3d 1187 (9th Cir.1994), we held that the deportation of an alien whose drug conviction had been expunged under a state rehabilitative statute violated the Equal Protection Clause. The Montana state statute under which Garberding had been convicted differed in some respects from the FFOA. We held that the Equal Protection Clause required us to inquire into whether Garberding would have been eligible for relief under the FFOA if he had been convicted under that statute. That is, we held in Garberd-ing that the proper inquiry centered on what the alien had done, not on the peculiarities of the state statute under which he or she had been convicted and was entitled to expungement. See id. at 1191 (“Gar-berding had the bad luck or poor judgment to possess her marijuana in Montana.... It is this fortuitous circumstance, not Gar-berding’s conduct, which the INS used to distinguish her for deportation.... [Distinguishing Garberding for deportation because of the breadth of Montana’s ex-pungement statute, not because of what she did, has no logical relation to the fair administration of the immigration laws ....”). “Thus, under Garberding, persons who received the benefit of a state ex-pungement law were not subject to deportation as long as they could have received the benefit of the federal Act if they had been prosecuted under federal law.” Lujan-Armendariz, 222 F.3d at 738 (emphasis in original).
The Board of Immigration Appeals (“BIA”) implemented our holding in Gar-berding in Matter of Manrique, 21 I. & N. Dec. 58 (BIA 1995). In Manrique, the BIA established four criteria for determining which aliens must be given the protection of the FFOA:
[T]he policy of leniency in immigration proceedings shown to aliens subject to treatment under [the FFOA] will be extended to aliens prosecuted under state law who establish the following criteria:
1. The alien is a first offender, i.e., he has not previously been convicted of violating any federal or state law relating to controlled substances.
2. The alien has pled to or been found guilty of the offense of simple possession of a controlled substance.
3. The alien has not previously been accorded first offender treatment under any law.
4. The court has entered an order pursuant to a state rehabilitative statute under which the alien’s criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.
Id. at 64 (emphasis added). Note particularly the fourth criterion and its italicized language. Under Manrique, an alien is entitled to the protection of the FFOA not only if the criminal proceedings have been *1295deferred after probation, as in a deferred adjudication statute such as the FFOA, but also if such proceedings mil be dismissed after probation, as in an expungement statute such as the Oregon statute in this case. Chavez-Perez comes within the italicized language, for his criminal proceedings will be dismissed only after successful completion of probation.
In Lujan-Armendariz, we held that even after Congress had enacted a statutory definition of the term “conviction” in the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), 8 U.S.C. § 1101(a)(48)(A), “the rule we declared to be constitutionally required [in Garberding, which] was formally adopted by the BIA in Matter of Manrique [,]” continued to govern in first offender ex-pungement cases. 222 F.3d at 738. That is, “in simple drug possession cases any alien ‘who has been accorded rehabilitative treatment under a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the provisions of [the FFOA] had he been prosecuted under federal law.’ ” Id. (quoting Manrique, 21 I. & N. Dec. at 64). In Lujan-Armendariz, we specifically referred to the fourth criterion of Manrique. We wrote, “Under [Man-rique ], an alien qualifies for relief if he is a first offender, is guilty only of simple possession, has not previously been accorded first offender treatment, and ‘[t]he court has entered an order pursuant to a state rehabilitative statute under which the alien’s criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” 222 F.3d at 738 n. 18 (quoting Manrique, 21 I. & N. Dec. at 64) (first emphasis in original, second emphasis added).
Following Lujan-Armendariz, we explicitly applied Manrique’s fourth criterion in Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir.2000), to determine if an alien qualified for the protection extended by Garberding. Citing Manrique, we wrote, “To qualify for first offender treatment under federal law, a person must show that ... the court has entered an order pursuant to a state rehabilitative statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Id. at 1136 (emphasis added). We held that “Cardenas’s expungement meets the fourth prong of the Manrique test, and the BIA erred in concluding otherwise.” Id.
The majority tries to escape Manrique’s fourth criterion, and our adoption of that criterion in Lujan-Armendariz and Cardenas-Uriarte, in two ways. First, it contends that we have not adopted the relevant part of Manrique’s fourth criterion. It writes, “It is not clear that the fourth prong of the Manrique test has been adopted in this Circuit, at least in its entirety.” Maj. Op. at 1291 (emphasis added). Second, it contends that even if Manrique’s fourth criterion is applicable, I have misread it. I can understand why the majority wants to believe that we have not adopted all of Manrique’s fourth criterion, or that I have misread that criterion, for this is the only way it can escape the precedential force of our prior holdings. But the majority is wrong. I consider the majority’s contentions in turn.
First, as shown by the language just quoted from Lujan-Armendariz and Cardenas-Uriarte, we have indeed adopted Manrique’s fourth criterion “in its entirety.” In both Lujan-Armendariz and Cardenas-Uriarte, we quoted all of Manrique’s fourth criterion. Imjan-Ar-mendariz, 222 F.3d at 738 n. 18; Cardenas-Uriarte, 227 F.3d at 1136. In Lujan-Armendariz, we adopted and applied that *1296criterion. Having already adopted the criterion in Lujan-Armendariz, we applied it again in Cardenas-Uriarte. We have not, before this case, had occasion to apply Manrique’s fourth criterion to a case where the criminal proceedings “will be dismissed” (as distinct from “have been deferred” and “have been ... dismissed”). But the majority is clearly wrong in saying that we have not adopted the criterion “in its entirety.”
Second, the majority contends that I wish to “give meaning to the first ‘or’ in this prong [ie., in Manrique’s fourth criterion], but not to the second.” Maj. Op. at 1292 n. 9. I confess that I do not understand what the majority means. The operation of Manrique’s fourth criterion is quite straightforward. I quote it in its entirety:
4. [1] The court has entered an order pursuant to a state rehabilitative statute under which the alien’s criminal proceedings have been deferred pending successful completion of probation or [2] the proceedings have been or will be dismissed after probation.
Manrique, 21 I. & N. Dec. at 64 (bracketed numbers and emphasis added). The two alternative parts of the fourth criterion, indicated by the bracketed numbers and separated by the first “or,” take into account the two kinds of statutes under which the criterion may be satisfied. The first is a deferred adjudication statute, in which no judgment is entered pending successful completion of probation. The second is an expungement statute under which judgment is entered, but is expunged when and if probation is successfully completed. In turn, the expungement statute part of the criterion can be satisfied in two ways, as indicated by the second “or.” Either the proceedings have already been dismissed, or they “will be dismissed” after successful completion of probation.
The majority misquotes, and therefore misreads, Manrique’s fourth criterion. Purporting to quote Manrique, it writes, “But the Manrique language requires that ‘the court has entered an order ... under which the alien’s criminal proceedings ... will be dismissed after probation.’ ” Maj. Op. at 1292 n. 10. The majority has omitted significant parts of the text of the fourth criterion, as may be seen by comparing the majority’s quotation with the full criterion, quoted above. The language “the court has entered an order” applies to a deferred adjudication statute. However, by omitting some of the text of the fourth criterion, the majority makes it appear that this language applies to an expungement statute as well. Only by selectively quoting from Manrique’s fourth criterion can the majority conclude that a court order is necessary under an expungement statute. We made it very clear in Lujan-Armendariz that a court order is not necessary under an expungement statute. As we stated in Lujan-Armendariz, an alien can satisfy Manrique’s fourth criterion by showing that “[t]he court has entered an order pursuant to a state rehabilitative statute under which the alien’s criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” 222 F.3d at 738 n. 18 (emphasis in original). By selective quotation, the majority both misstates Man-rique’s fourth criterion, and disregards our prior precedent construing that very language.
Whether an alien attempts to meet Manrique’s fourth criterion by demonstrating the existence of a court order or by proving that the proceedings “have been or will be dismissed after probation” depends on the type of state rehabilitative provision involved. A court order, while a necessary part of a deferred adjudication *1297scheme, is not required when “the proceedings have been or will be dismissed after probation” pursuant to an expungement statute. Indeed, requiring an existing court order under an expungement scheme turns Manrique’s “will be dismissed” language into nonsense. Under Oregon’s expungement statute, for example, Chavez-Perez could not even apply for a court order setting aside his conviction until three years had elapsed from the date of judgment. Or.Rev.Stat. § 137.225(l)(a).
The majority concludes that Chavez-Perez is not entitled to relief because three years had not elapsed since the date of his conviction when the Immigration Judge and the BIA acted. There is some common sense to the majority’s position, for if we apply Manrique’s fourth criterion as it is written, the INS cannot complete removal proceedings against Chavez-Perez until the probationary period has elapsed. I acknowledge that waiting through Chavez-Perez’s probationary period will be inconvenient. But we have already crossed that bridge. Under current law, we refuse to allow immediate removal when an alien has been convicted under a “deferred adjudication” statute. Under such a statute— including the FFOA, the gold standard to which we compare all state expungement statutes — the court (and the INS) must wait to see if probation is successfully completed. See 18 U.S.C. § 3607(a); see also, e.g., Lujan-Armendariz, 222 F.3d at 738 n. 18. Waiting to see whether an alien successfully completes probation under a deferred adjudication statute, or whether an alien does so under an expungement statute, is the same. In either case, the INS must wait.
In writing the fourth criterion in Man-rique, the BIA knew exactly what it was doing. Under our holding in Garberding, the BIA was required to treat first offenders convicted under state statutes in the same way they would have been treated if they had been convicted under the FFOA. Because a conviction is not entered as a judgment under the FFOA unless an alien fails to comply with the terms of his probation, the INS must wait to see whether the alien has complied with the terms of probation. The BIA therefore carefully specified in Manrique’s fourth criterion that the INS must wait, not only if criminal proceedings “have been deferred” pending successful completion of probation, but also if proceedings “will be dismissed” pending successful completion. Adding the “will be dismissed” clause to the second part of the fourth criterion was the only way the BIA could give the same treatment to convictions under state ex-pungement statutes as to convictions under the FFOA. Thus, far from being an accident or slip of the pen, the “will be dismissed” language of the second part of Manrique’s fourth criterion is an essential part of the BIA’s compliance with Gar-berding.
We held in Garberding that first-time offenders convicted under state expungement statutes must be given the same treatment they would have received under the FFOA. That is, we held that they must be treated as if they have been convicted under a “deferred adjudication” statute under which the court has to wait to see whether the conditions of probation were fulfilled before entering a judgment of conviction. In selectively quoting from Man-rique’s fourth criterion, and in ignoring Manrique’s “will be dismissed” language, the majority disregards the rationale of our holding in Garberding and subverts our holdings in Lujanr-Armendariz and Cardenas- Uriarte.
I therefore respectfully dissent.