811 F.3d 1216
9th Cir.2016Background
- Villavicencio, a Guatemalan national who entered the U.S. unlawfully in 1992, conceded removability but sought cancellation of removal and adjustment of status based on his U.S. citizen wife.
- In late 2008 he pled guilty to two state counts of simple drug possession arising from a single incident, was sentenced in January 2009 to 180 days total, and later obtained expungement under California law.
- The immigration judge held the two convictions barred him from discretionary relief because they were two separate offenses and thus not eligible for first-offender treatment under the Federal First Offender Act (FFOA), 18 U.S.C. § 3607(a); the BIA summarily affirmed.
- Villavicencio argued the two counts constituted a single "offense" for FFOA purposes because they arose from one event, were in one case, and received one undivided sentence, so he remained a first-time offender.
- The Ninth Circuit reviewed de novo, concluding the counts amounted to one offense under § 3607(a) and remanded to the agency to determine eligibility for discretionary relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two possession counts from one incident constitute "an offense" under the FFOA | Villavicencio: counts are one offense because they arose from a single event, single case number, and a single undivided sentence | Government: FFOA applies only to a single possession count (each count is a separate offense) | Court: Counts constitute a single "offense" for FFOA because they arose from one event, one case, and a single undivided sentence; differing drugs alone do not defeat first-offender status |
| Whether the BIA erred by summarily affirming the IJ on a novel legal question | Villavicencio: BIA should have written an opinion given the novel statutory interpretation | Government: Any BIA error is harmless because the issue is a pure question of statutory interpretation not requiring agency expertise | Court: Board probably should have written a decision, but remand is unnecessary because the issue is purely legal and the court resolves it; case remanded for agency to assess discretionary relief |
Key Cases Cited
- Sanchez v. Holder, 704 F.3d 1107 (9th Cir. 2012) (standard for reviewing BIA summary affirmances)
- Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) (de novo review of legal questions about relief eligibility)
- Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (state expungement can remove immigration consequences under a statute analogous to the FFOA)
- Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (overruled Lujan-Armendariz prospectively)
- Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) (legislative history describing FFOA purpose)
- Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) (permitting first-offender treatment where two drug counts were involved; declined to decide separate-offense argument)
- de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007) (FFOA inapplicable when petitioner had prior controlled-substance convictions)
- Aguiluz-Arellano v. Gonzales, 446 F.3d 980 (9th Cir. 2006) (FFOA unavailable where there was a prior conviction or prior first-offender disposition)