Jose Roberto RAMIREZ-CASTRO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 00-71589.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 14, 2002. Filed April 24, 2002.
287 F.3d 1172
Simon Salinas, Tustin, CA, for the petitioner.
Before FERGUSON, TASHIMA, and GRABER, Circuit Judges.
Opinion by Judge GRABER; Concurring Opinion by Judge FERGUSON.
OPINION
GRABER, Circuit Judge.
Petitioner Jose Roberto Ramirez-Castro seeks review of а decision of the Board of Immigration Appeals (BIA), which denied his motion to reopen and found him deportable pursuant to
BACKGROUND
Petitioner, a citizen of Honduras, entered the United States in 1978. In 1989, pursuant to
Nearly two years later, Petitioner was convicted in the Municipal Court of the State of California, City of Los Angeles, of carrying a concealed weapon, in violation of
The Immigration and Naturalization Service issued an order to show cause, charging Petitioner with deрortability under
On March 5, 1993, the California Municipal Court for the City of Los Angeles expunged Petitioner‘s conviction pursuant to
On reconsideration, the BIA again held that the definition of “conviction” in
We review de novo the BIA‘s interpretation of the INA. Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001).
JURISDICTION
Because this deportation proceeding was initiated before April 1, 1997, and the BIA‘s orders were issued aftеr October 30, 1996, this case is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 309(c). Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir.1999). IIRIRA § 309(c)(4)(G) provides that “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 241(a)(2)[ (C)] 2 ... of the Immigration and Nationality Act.” Consequently, we lack jurisdiction to review Petitioner‘s appeal, except to the extent that it presents the question whether Petitioner is an alien “deportable by reason” of having committed an offense under INA § 241(a)(2)(C). Magana-Pizano, 200 F.3d at 607; see also Lujan-Armendariz v. INS, 222 F.3d 728, 734 (9th Cir.2000) (stating that the court retains jurisdiction to determine whether a jurisdictional bar applies in a particular case).
Here, Petitioner argues that, because of the expungement, his firearms offense does not qualify as a conviction for purposes of INA § 241(a)(2)(C) and that, consequently, he is not deportable by reason of having committed a specified offense.3 We therefore have jurisdiction to consider that argument. Lujan-Armendariz, 222 F.3d at 734 (reviewing whether a petitioner‘s expunged conviction qualified as a conviction under the INA).
DISCUSSION
In Murillo-Espinoza, we held that, as a general rule, an еxpunged conviction qualifies as a conviction under the INA.4 261 F.3d at 774. We considered the amended statutory definition of “conviction” in
However, in Lujan-Armendariz, we recognized an exception to that general rule in cases involving first-time simple possession of narcotics. 222 F.3d at 749-50. We concluded that if a petitioner could have satisfied the requirements of the Federal First Offender Act,5 then the expungement of the petitioner‘s conviction under state law eliminates the immigratiоn consequences of the offense. Id.
Thus, in order to prevail on his argument that the expungement of his conviction nullified it for purposes of the INA, Petitioner must demonstrate that his case falls within the exception created by Lujan-Armendariz, or show that some other, yet unrecognized, exception applies.
Neither argument convinces us. First, the text of
Second, Petitioner‘s firearms conviction is not within the scope of the Federal First Offender Act, and Petitioner has identified no other source of law that would require the BIA, in general, to treat expunged misdemeanor convictions differently from expunged felony convictions. Nor can we find such a source. Consequently, the fact that Petitioner‘s underlying offense was a misdemeanor does not exempt his case from the holding оf Murillo-Espinoza.
As to Petitioner‘s second argument, the difference between the Arizona expungement statute involved in Murillo-Espinoza and
A termination of probation and dismissal of charges pursuant to Sectiоn 1203.4 of the Penal Code does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter. Such person‘s prior conviction shall be considered a conviction for the purpose of revoking or suspending or otherwise limiting such privilege on the ground of two or more convictions.
In view of the fact that
In summary, Petitioner has failed to demonstrate that this case falls within an exception to the general rule that convictions expunged under state law retain their immigration consequences. Murillo-Espinoza controls this case: For immigration purposes, Petitioner stands convicted of the firearms offense on which his deportation order is based.
FERGUSON, Circuit Judge, concurring.
I agree that Ramirez-Castro‘s petition should be dismissed. Nevertheless, I write separately because, while I agree with the majority‘s conclusion, I disagree with its statement that the general rulе is convictions expunged under state law retain their immigration consequences. There is no general rule to this effect, and the majority relies on mere dictum to support it.
The majority oversimplifies the term “expungement statute,” using it to support this generalized rule. Its use of the term fails to distinguish between a statute, which dismisses the charges but allows other legal consequences to remain, and a statute, which wholly removes the conviction of guilt and prevents any future legal consequences to apply. As the majority recognizes, neither the California statute at issue in this case nor the Arizona statute at issue in Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir.2001), completely eliminates the consequences of a state conviction. Thus, it logically follows that the setting aside of judgment under either statute cannot obviate the immigration consequences of a state conviction. In contrast, the Federal First Offеnder Act discussed in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), removes the finding of guilt and provides that “no legal consequences may be imposed as a result of the defendant‘s having committed the offense.” Id. at 735, 749 (holding that, when an alien could have been tried under thе Federal First Offender Act, but was prosecuted instead under state law, he could not be deported).
The California statute at issue in this case allows a court to set aside a guilty verdict after a defendant has fulfilled or been discharged of the conditions of probation. However, under the statute, specific legal consequences of the conviction remain. For example, the statute provides that, “in any subsequent prоsecution of the defendant for any offense, the prior conviction may be pleaded and proved and shall have the same effect as if the accusation or information [had not been] dismissed.”