901 F.3d 1071
9th Cir.2018Background
- Salvador Robles Lopez, a Mexican national admitted as an LPR in 1984, pleaded no contest on Sept. 23, 1996 to possession for sale of cocaine salt under Cal. Health & Safety Code § 11351; conviction was expunged under Cal. Penal Code § 1203.4 in 2008.
- DHS initiated removal proceedings in 2009 charging deportability both as a controlled-substance offender and as an alien convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
- Immigration Judge and the BIA concluded Lopez’s § 11351 conviction qualified as an aggravated felony, that the expungement did not eliminate immigration consequences, that he was ineligible for former INA § 212(c) relief, and denied CAT relief.
- Lopez conceded removability as a controlled-substance offender but contested aggravated-felony classification, the effect of expungement, § 212(c) eligibility, and CAT relief denial.
- The Ninth Circuit majority affirmed the BIA on all grounds; Judge Friedland dissented only on the § 212(c) retroactivity issue.
Issues
| Issue | Lopez's Argument | Sessions' (Govt.) Argument | Held |
|---|---|---|---|
| Whether Cal. § 11351 (possession for sale of cocaine salt) is an aggravated felony under the CSA | § 11351 is broader than the federal offense and therefore not a categorical match | § 11351 is divisible; under the modified categorical approach Lopez’s plea shows cocaine salt (a CSA Schedule II substance) so it matches a federal felony | Held: § 11351 conviction qualifies as an aggravated felony (agreed) |
| Whether expungement under Cal. Penal Code § 1203.4 removes immigration consequences | Expungement vacates the conviction for immigration purposes | Expungement generally does not eliminate immigration consequences; FFOA exception applies only to simple possession, not possession for sale | Held: Expungement does not eliminate immigration consequences; FFOA exception inapplicable |
| Whether AEDPA § 440(d) retroactively bars § 212(c) relief because Lopez’s underlying conduct predated AEDPA | Applying § 440(d) is impermissibly retroactive because it attaches new consequences to the commission of the offense | § 440(d) attaches consequences to the conviction (date of conviction governs), not to earlier commission; thus not retroactive | Held (majority): § 440(d) permissibly applied; Lopez is ineligible for § 212(c) relief; Dissent: would find application impermissibly retroactive |
| Whether BIA erred denying deferral under the Convention Against Torture (CAT) | Lopez fears gang/robbery threats and being targeted as a returnee; this shows likelihood of torture | Evidence is generalized and not particularized to Lopez; does not meet severe/torture standard | Held: BIA did not err; CAT relief denied |
Key Cases Cited
- Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014) (three-step divisible/statute analysis for controlled-substance predicate offenses)
- Torre-Jimenez v. United States, 771 F.3d 1163 (9th Cir. 2014) (divisibility of California drug statute as to substance type)
- Shepard v. United States, 544 U.S. 13 (2005) (documents proper for modified categorical approach)
- St. Cyr v. INS, 533 U.S. 289 (2001) (availability of § 212(c) relief for certain plea-based convictions)
- Landgraf v. USI Film Products, 511 U.S. 244 (1994) (retroactivity framework for statutes)
- Vartelas v. Holder, 566 U.S. 257 (2012) (retroactivity can attach new disabilities to multiple past events)
- Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. 2002) (expungement under Cal. § 1203.4 does not generally erase immigration consequences)
- Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (FFOA exception to immigration consequences for certain expunged offenses)