Jose Lopez-Vasquez v. Eric H. Holder Jr.
2013 U.S. App. LEXIS 2277
| 9th Cir. | 2013Background
- Lopez-Vasquez, a Salvadoran citizen, entered the United States illegally in 1987.
- In 1997, the state court convicted Lopez-Vasquez of possession of marijuana for sale under Cal. Health & Safety Code § 11359; probation was imposed with 180 days in county jail.
- The court later terminated probation and set aside the conviction under Cal. Penal Code § 1203.4; records did not clearly show a change to simple possession under § 11357.
- Lopez-Vasquez sought immigration relief based on an argument that the conviction was actually a misdemeanor simple possession (11357) and thus potentially FFOA-eligible.
- The BIA denied adjustment of status and denied Lopez-Vasquez’s motion to reopen; Lopez-Vasquez challenged the BIA’s rulings.
- The Ninth Circuit affirmed, holding Lopez-Vasquez remained inadmissible under § 1182(a)(2)(i)(II) and that the state-court expungement did not cure the inadmissibility; it also declined to remand for reopening, though a concurrence advocated reopening for additional evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lopez-Vasquez’s 1997 conviction was for 11359 (sale) or 11357 (simple possession). | Lopez-Vasquez argues the conviction was reduced to a misdemeanor under 11357. | The record shows a 11359 conviction and does not conclusively show a change to 11357. | Conviction burden supports 11359; not shown to be 11357. |
| Whether expungement/set-aside affects admissibility under 8 U.S.C. § 1182(a)(2)(i)(II). | Expungement should render the offense non-admissible for immigration purposes under pre-Nunez-Reyes framework. | Expungement does not erase the drug-related inadmissibility under § 1182(a)(2)(i)(II). | Expungement does not cure inadmissibility; § 1182(a)(2)(i)(II) remains in effect. |
| Whether Lopez-Vasquez bore the correct burden of proof and the BIA properly denied adjustment of status. | Lopez-Vasquez bears burden to show no drug conviction rendering inadmissible and seeks FFOA-equivalent relief if applicable. | Under controlling Ninth Circuit law, the burden is to prove admissibility clearly and beyond doubt; record supports inadmissibility. | Lopez-Vasquez failed to prove admissibility; ineligible for adjustment. |
| Whether the BIA abused its discretion in denying the motion to reopen based on new evidence. | New transcript evidence could establish eligibility for adjustment. | Evidence did not demonstrate prima facie eligibility; reopening denied. | No abuse of discretion; motion to reopen denied. |
Key Cases Cited
- Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (FFOA framework for expunged state convictions; eligibility for relief guidance)
- Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (Overruled pre-Nunez-Reyes framework; applies prospectively to federal convictions)
- Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir. 2009) (Expands FFOA scope to expunged less serious offenses (prospective overruled))
- Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001) (Expungement generally does not affect drug-admissibility)
- Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. 2010) (Burden on alien to prove admissibility; record must show not inadmissible)