Nunez-Reyes v. Holder

sympathetic, given her is Avagyan’s case NUNEZ-REYES, aka Flavio citi- Flavio and her United States age

advanced however, This, Petitioner, Reyes, does not daughter. zen Al- the law. relief under her to entitle ineffective the victim of she was though others re- attorneys and from assistance Attorney HOLDER, Jr., Eric H. there proceedings, removal

garding her General, Respondent. of the she had notice a time when came her, act required to and was against fraud No. 05-74350. not act Avagyan did diligence.

with due Appeals, States Court United fact, to act for ten she failed promptly; Ninth Circuit. majority’s insistence months. grant Avagyan compelled BIA was En Argued and Submitted relief, by suggesting that a disservice does Banc Dec. 2010. a final received immigrant who has wait ten may simply removal order of 14, 2011. July Filed

months, anything at all doing without relief. still obtain equi- limit on must be some outer

There filing reopen; motions to tolling table otherwise, in- could filed such motions be pre- the circumstances

definitely. Under here, unex- light Avagyan’s sented months, the BIA’s plained inaction for ten exercise Avagyan failed to conclusion diligence is not an abuse of discretion.2 due Accordingly, respectfully I dissent.

Furthermore, I believe that because relief, and that Avagyan is not entitled to substantially government’s position justified, attorneys’ I fees would not award Avagyan but would have each side bear

its own costs. See Equal Access to Justice (“EAJA”), § 2412.

Act 28 U.S.C. majority’s equitable tolling he act Notwithstanding comments is entitled to because diligence waiting rea contrary, suggest that there ed with due was to the I do not particular circumstances per se rule of time allowed sonable under for the amount Mejia-Hernandez presented. equitable tolling. Each case is evaluated See Cir.2011). However, light particular in context and in cir- here, presented the BIA could presented. may well that in on the facts cumstances It to) instances, (although petitioner conclude it did not have some rare who waits continuously waiting after the final denial of years follow- for ten months for over six —while “attorney” during relief was not reasonable. up his that time—(cid:127) Sprouls,

Frank P. Law Office of Ricci & Francisco, CA, Sprouls, peti- San tioner. Bernstein, Keith I.

Holly M. Smith and Justice, Office of Im- Department D.C., migration Litigation, Washington, FACTUAL AND PROCEDURAL respondent. HISTORY Petitioner entered the United States in Naidoo, Alliance, Drug Policy Theshia charged he was in state CA; Berkeley, Jayashri Shrikantiah, Stan- court with one felony possession count of Immigrants’ Rights ford Law School Clin- of methamphetamine, in violation of Cali- ic, Stanford, CA; Stephen W. Man- fornia Health and Safety Code section PC, Portland, ning, Immigrant Group Law 11377(a), and one misdemeanor count of OR, for Amici Curiae. being under the methamphet- influence of amine, in violation of California Health 11550(a). Safety Code section He pleaded counts, guilty to both but state eventually court dismissed the charges under California Penal Code sec- KOZINSKI, ALEX Before: Chief 1210.1(e)(1), tion held unconstitutional in SCHROEDER, Judge, MARY M. BETTY other part Gardner v. Schwarzenegger, FLETCHER, PREGERSON, B. HARRY 1366, 178 Cal.App.4th 101 Cal.Rptr.3d 229 O’SCANNLAIN, F. DIARMUID (2009). Under that provision, the state THOMAS, SIDNEY R. P. SUSAN court “shall ... set aside [the conviction] GRABER, WARDLAW, KIM McLANE and ... dismiss the indictment” if the CALLAHAN, CONSUELO M. MILAN D. successfully defendant completes a drug SMITH, JR., IKUTA, and SANDRA S. program treatment and meets other condi- Judges. Circuit 1210.1(e)(1). § tions. CaLPenal Code

“[E]xcept as provided [in other subsec- GRABER; Opinion by Judge Partial tions], both the arrest and the conviction Concurrence Partial by Judge Dissent shall be deemed never to have occurred.” IKUTA; by Judge Dissent PREGERSON. Id. 2002, early

In government the federal OPINION appear, issued a notice to charging Peti- tioner with being removable. Petitioner GRABER, Judge: Circuit conceded removability applied but for adjustment of status and cancellation of Nunez-Reyes, Petitioner Flavio a native (“IJ”) removal. The immigration judge Mexico, petitions and citizen of for review denied all forms of relief and ordered of the Immigration Board of Appeals’ Petitioner removed. The IJ held that (“BIA”) denying decision his application the state convictions rendered Petitioner for deny cancellation of removal. We ineligible for form of relief even so, petition. In the doing sitting course of though the state court later had dis- court, as an en banc equal we overrule our missed the convictions. The BIA af- protection holding in firmed the Id’s decision. INS, (9th Cir.2000). 222 F.3d 728 We that, also in light equities conclude of the timely petitioned Petitioner for review. considerations, and other three-judge we will A panel granted petition today’s rule, prospectively.* new rule because of our first in announced * Schroeder, Callahan, Judge Judges Chief join only. Judge Kozinski and and Ikuta Part A Thomas, Wardlaw, join and M. Smith all joins only. B. Fletcher Part B O’Scannlain, Opinion. Judges Parts of this for federal immi- “equal protection constitute a “conviction”

Lujan-Armendariz, History provided gration purposes? expungement treat the us to requires question. to that ever-changing answer simple possession conviction 265, Dec. See In re 4 I. & N. O-T- as the expungement manner” the same (B.I.A.1951) A-F-, re 8 I. (“yes”); In & N. simple possession. federal conviction Gen.1959) 429, (Att’y (“no”); Dec. Holder, Nunez-Reyes v. F.3d Werk, re 16 I. & N. Dec. 235-36 (9th Cir.2010) curiam). (per Judge (B.I.A.1977) (“yes, some circum- separately state reasons Graber wrote stances”); INS, Garberding v. announced why we should revisit rule (9th Cir.1994) (“no”); 1190-91 In re See at 1105 id. Lujan-Armendariz. Manrique, 21 I. & N. Dec. 62-64 J., (Graber, concurring) (citing Rice v. (B.I.A.1995) (“no”). Against back- Holder, 957-58 Cir. significant drop, Congress enacted 2010) (Ikuta, J., concurring) (arguing that laws, changes to our which rule); revisit Ramirez-Al should included a new definition term “con- 816-17 tamirano 1101(a)(48)(A).1 viction.” 8 U.S.C. (9th Cir.2009) (Ikuta, J., dissenting) Lujan-Armendariz, In we addressed INS, (same); Dillingham effect on peti of the new definition a Cir.2001) (Fernandez, J., dis 1012-13 tioner’s conviction expunged state for a senting) (suggesting Lujan-Ar simple-possession drug crime. began We concluding rule incorrect but mendariz by considering whether a convic federal case, that, of this purposes “for tion, later expunged Federal there”)). here nor neither (“FFOA”), First Offender Act nevertheless granted rehearing then en banc. We immigration a “conviction” for constitutes Holder, Nunez-Reyes v. 631 F.3d 1295 purposes. the FFOA Importantly, man (9th Cir.2010) (order). successfully expunged dates a federal conviction “shall not be considered a con STANDARD OF REVIEW purpose disqualification viction of a or a disability imposed by upon law convic de novo BIA’s de We review crime, tion of a or other purpose.” termination “that a controlled substance 3607(b) added). § 18 (emphases U.S.C. precludes conviction relief as thoroughly apparent We examined Ramirez-Altamirano, a matter of law.” quoted conflict text between of the F.3d at 804. 563 FFOA and the new definition of “conviction.” Luja 222 n-Armendariz, DISCUSSION 734-43. Lujan-Armendariz. A. We overrule relegated But we a footnote very a state-court Does conviction for important step in the analysis: additional crime, a simple-possession drug later ex Did have a rational basis for court, by the state punged distinguishing expunged nevertheless between federal guilty 1. The full definition states: or nolo contendere or has admitted finding guilt, facts to warrant sufficient means, The term “conviction” with re- alien, spect judgment guilt a formal to an (ii) or, judge ordered some has form of adjudi- of the alien entered a court if withheld, punishment, penalty, or restraint guilt on the cation of has been where— (i) judge jury liberty imposed. has alien alien's to be found the 1101(a)(48)(A). guilty plea U.S.C. or the alien has entered a expunged state convic- re Salazar-Regino, convictions and 23 I. & N. Dec. at as follows: tions? We answered “INS 235. reason, offered no and we cannot counsel issue, Having reconsidered the any, why Congress would have conceive agree now with the BIA and our sister guilty drug

wanted aliens found of federal veryA circuits. relaxed form of rational leniently crimes to be treated more than applies basis review inquiry: guilty of state aliens found crimes.” classifications based alienage “[F]ederal analysis n. 24. Id. at 743 Our brief of this subject are scrutiny. to relaxed Federal important light issue is understandable in distinguishing classifications among groups government’s silence. But we now of aliens thus are valid unless wholly irra persuaded are that we erred.2 (cita tional.” Garberding, 30 F.3d at 1190 in Lujan-Armendar Since our decision tion quotation omitted); and internal marks iz, BIA every sister circuit to have see also Abebe v. Mukasey, 554 F.3d eight addressed the in total—have issue— (9th Cir.2009) (en banc) curiam) (per rejected holding. In re Salazar-Regi (“Congress particularly broad and no, (B.I.A.2002) I. & N. Dec. sweeping powers when it (en comes to immi banc); Wellington v. (2d Cir.2010) gration, and is curiam), therefore entitled 120-21 to an (per — denied, U.S. —, 2960, additional cert. measure of deference when it (U.S. 180 L.Ed.2d legislates admission, exclusion, U.S.L.W. as to re 2011) (No. 10-933); June Danso v. Gon moval, naturalization or other per matters (5th — zales, 709, Cir.2007); 489 F.3d aliens.”), taining denied, cert. U.S. Gonzales, 800, Ramos v. 414 F.3d 805-06 —, 3272, 130 S.Ct. 176 L.Ed.2d 1182 (7th Cir.2005); Resendiz-Alcaraz v. U.S. (2010). That easily standard is met here. (11th Gen., 1262, Att’y 383 F.3d 1271-72 The Third put Circuit it well: Cir.2004); Comfort, Elkins v. Familiar with operation of the feder- 1159, (10th Cir.2004); 1163-64 Acosta v. justice al criminal system, Congress (3d 218, Ashcroft, 341 F.3d 224-27 Cir. could have thought that aliens whose 2003); INS, Vasquez-Velezmoro v. federal charges are dismissed under the Cir.2002); F.3d 697-98 Herrera- unlikely present FFOA are a substan- INS, (1st v. Inirio 304-09 tial threat of committing subsequent ser- Cir.2000). The BIA held: contrast, By Congress ious crimes. may considering analysis After set have been unfamiliar operation with the ..., in Lujam-Armendariz forth we de- of state schemes that resemble the cline to in apply ruling that decision Congress FFOA. could have worried arising jurisdic- cases outside of the justice systems, that state criminal un- tion of the Ninth Circuit. We therefore pressure by heavy der the created case that, except conclude in the Ninth Cir- loads, might permit dangerous cuit, offenders simple a first-time drug possession to plead simple possession down to expunged offense a state rehabili- charges tative statute a advantage conviction under take of those [the immigration laws]. state schemes to escape what is consid- assume, holding Lujan- Lujan-Armendariz, 2. We address here without decid- guarantee ing, statutory that the constitutional that term “conviction” in- Armendariz equal protection required Congress expunged to treat cludes state convictions. Because expunged expunged require federal convictions this case does not resolution of that issue, way. state convictions same As we did in we do not it. reach the courts. Fed- pending cases still before law. Par- under state a conviction ered may depart from default eral courts Congress’s power ticularly in view circumstances, as only in certain matters, principle plain it seems Huson, 404 Co. v. outlined Chevron Oil is satisfied here. review rational-basis 30 L.Ed.2d 296 92 S.Ct. rational Acosta, at 227. Another (1971). Below, explain that we first as well: basis exists good test remains Chevron Oil three-factor A expungement. permit Not all states one, cases, law, at least in such as this in such a state would person convicted rule of law not we announce a new where immi- under the for relief ineligible be jurisdiction. Balancing affecting our laws, person a convicted whereas gration Oil, we in Chevron three factors described eligible. state would in a different our decision that we will conclude conclud- reasonably could have only prospectively. of unifor- that, strong interest in the ed recognize any state mity, it would not applies. 1. The Oil test Chevron adopt than rather expungements justify a devia- The circumstances piecemeal approach. retroactivity tion from the normal rule (Graber, at 1107 Nunez-Reyes, 602 F.3d history. In the long jurisprudential J., concurring). context, origi- Court criminal conclusion, that the constitu we hold was nally prospective application held that equal protection does guarantee tional circumstances. Link- appropriate some treating, immigration pur require Walker, 381 U.S. letter conviction of a expunged poses, (1965). But 14 L.Ed.2d 601 a federal drug crime the same as in favor of later overruled Linkletter expunged under conviction that has been cases, any In criminal bright-line rule: Lujan- therefore overrule the FFOA. We retroac- applied new rule of law must be contrary. By holding to the Armendariz’s Kentucky, 479 U.S. tively. Griffith hold necessity, we also overrule the same (1987). 708, 93 L.Ed.2d 649 107 S.Ct. that, bound stare ing in those cases context, Supreme In the civil the Court decisis, announced in followed the rule we announced a three-factor test of originally include Lujan-Armendariz. Those cases applicability Chevron Oil. Un- general (9th Holder, 1054 Cir. Romero v. 568 F.3d test, equitable der the Oil consid- Chevron Ramirez-Altamirano, 2009); 563 F.3d warrant erations in some circumstances 996; 800; 267 F.3d and Dillingham, of a new rule of prospective application INS, 227 v. F.3d 1132 Cardenas-Uriarte limited, in But the Court has two law. (9th Cir.2000).3 ways, circumstances in which relevant the applies. test the Chevron Oil prospec- our decision apply B. We will tively only. First, announcing a new a court pure pros Lu rule of law must decide between

Having decided to overrule retroactivity; full what Jus pectivity wheth jan-Armendariz, we next consider prospectivi “selective only tice Souter termed apply pro er to the new rule of law weighed equities the ty,” that a in which courts principle The default spectively. basis, is foreclosed. case-by-case all apply retroactively to court’s decisions overrule, address, 597 F.3d any progeny, other than Rice v. 3. We do not do Cir.2010). (9th C. See Part holding 952 other infra

691 (3) announced; Distilling Georgia, preme previously B. Beam Court James Co. v. 2439, 529, 537-38, 111 115 and new 501 S.Ct. when the rule does not concern U.S. (1991) (Souter, J., plurality See, jurisdiction. e.g., L.Ed.2d 481 our George v. Ca macho, (9th v. Reynoldsville Hyde, 1393, Casket Co. op.); see 119 F.3d 1399 n. 9 Cir. 749, 1745, 1997) (en banc).4 115 L.Ed.2d 514 U.S. S.Ct. 131 (1995); v. Taxa- Harper Dep’t 820 Va. circuits, Like some of sister tion, 86, 97, 2510, 113 125 509 U.S. S.Ct. acknowledge we Supreme that the Court’s (1993) (“When[the Supreme] 74 L.Ed.2d reasoning Harper cases such as could applies a of federal law to the Court rule support a conclusion that Chevron Oil it, before that rule the control- parties longer applies test no circum interpretation federal ling law must stances: all new of law be rules must full all given retroactive effect in cases See, applied retroactively. e.g., Kolkevich review....”); on direct Crowe open still v. U.S., Att’y 323, v. n. Gen. 501 F.3d 9 337 (1st Cir.2004) (“In Bolduc, 86, 365 F.3d 93 (3d Cir.2007) that, (observing “as some case, then, [announcing a civil a court noted, commentators have is unclear has new rule two available law] power” whether we have the apply pure options: prospectivity or full retroac- new rule law prospectively light tivity”). Harper, issue); not reaching but Fair- Second, in in which the cases new Church Cnty. Covenant v. Sch. fax Fairfax jurisdiction, strips rule of law the courts of Bd., 703, (4th Cir.1994) 17 F.3d 710 (noting must rule of law courts new that, in Harper, Supreme “the cast Court retroactively. See United ex rel. States upon serious continuing doubt” “vitali W., v. 602 Haight Catholic Healthcare test). ty” of the Chevron Oil But (9th Cir.) (citing 953 United Supreme has Court not overruled City States ex rel. Eisenstein v. New Chevron test in Oil de circumstances York, 928, 129 556 U.S. S.Ct. 173 Glazner, scribed See v. above. Glazner (2009); Russell, 1255 v. L.Ed.2d Bowles (11th Cir.2003) (en 1216-17 551 168 L.Ed.2d U.S. banc) (“Although prospectivity appears to (2007)), denied, - U.S. -, cert. have fallen into disfavor with the (2010); Felzen L.Ed.2d Beam, B. [citing Harper, Court James Andreas, Cir. Griffith], clearly retained 1998) (citing Indus. Christianson Colt and, possibility of pure prospectivity 800, 818, Operating Corp., believe, has also retained Chevron (1988)). 2166, 100 811 “Eq S.Ct. L.Ed.2d test, form, in Oil albeit a modified as the altogether considerations are irrel uitable analysis governing for such determinations adjudicatory evant a court lacks when cases.”); Church, civil in Covenant Fairfax Felzen, power.” 134 F.3d at 877. (“We struck, however, 17 F.3d at 710 are by Harper the notable absence in of this glean jurisprudential

We from statement over that Chevron history following apply [Oil] rule of law: We ”); ruled .... but see v. three-pronged in Hulin Fibreboard test outlined Chevron (5th Cir.1999) (1) (2) case; 316, Corp., in a Oil civil when we an 333 law, dictum, a in (concluding, “[t]he new rule of as from Court’s nounce distinct only applying new rule that we or the Su- most recent decisions ... leav[e] risdiction, George recognize subsequent in Su- 4. To the extent that our decision we holding by preme Haight, today’s applying Chev- Court decisions overruled it. contravenes 953; Felzen, concerning ju- 602 F.3d at 134 F.3d at 877. ron Oil circumstances 692 (2) law”; of “whether principle a new ret- application possibility

indistinct extremely unusual in an pure prospectivity rospective operation will further or retard case”). As a circuit unforeseeable of its operation” light histo- [the rule’s] juris- Court court, if “recent even (3) effect; whether ry, purpose, question into called perhaps prudence in- produce our decision “could substantial viability precedent], continuing [its retroactively.” equitable applied results if controlling to follow a Su- are bound we (internal 106-07, at 404 U.S. 92 349 S.Ct. explicitly until it is precedent preme Court omitted). marks quotation There no by that Court.” United States overruled today that our question decision “estab- 1062, Weiland, n. 16 1079 v. by ... principle new of law over- lish[es] (citation Cir.2005) omitted); Rodriguez see ruling past precedent clear on which liti- Inc., Express, Quijas de Shearson/Am. 106, may have gants relied.” Id. 92 104 490 U.S. clearly S.Ct. 349. an- (1989) (“If precedent 526 this L.Ed.2d equal protection nounced the rule that re- case, yet in a application has direct Court expunged drug that we treat quired rejected to rest on reasons appears expunged convictions we do federal decisions, line some other clearly, convictions. we drug Just as over- the case which di- Appeals should follow holding today. rule that controls, rectly leaving to Court the its own deci- prerogative overruling Further, govern- amici assert —and sions.”). remain bound We therefore ment does not dispute that, because of — reason, every For Oil. that same Chevron clarity application and consistent the issue has con- court to decided than a Lujavr-Armendariz for more dec- ap- continues to cluded that Chevron Oil ade, acted aliens their counsel have Crowe, (applying F.3d ply. See Lujan-Armendariz. reliance on Accord- Glazner, test); the Chevron Oil F.3d amici, ing pleaded aliens often have (same); Pan at 1219 see also Shah v. Am. (2d Servs., Inc., minor guilty crimes and have com- World Cir.1998) (same). cir- Following our sister pleted drug treatment in order to have previous holdings, cuits and our we too will expunged their convictions reliance —all all apply the Chevron Oil test when three Lujan-Armendariz’s promise do- requirements above described are ing spare so would them from adverse met. immigration consequences. case, In this civil announce a new that, “There can be little doubt as a juris- rule of law that not concern our does matter, general alien defendants consider- applies. diction. The Chevron test Oil plea agreement whether enter into a Balancing factors, Oil Chevron acutely are aware of the con- we will the new rule of their sequences convictions.” INS St. prospectively. Cyr, 533 (2001).5 is “[D]eportation L.Ed.2d 347

The three Oil Chevron factors (1) integral part indeed, are: whether the decision sometimes the “establish[es] most — instance, text, that, Judge Cyr 5. Ikuta St. For in we asserts because the next sentence — context, U.S. —, Supreme quote Kentucky, Padilla arose in different all the from (2010), opinion "inap- statements are 130 S.Ct. L.Ed.2d 284 Court’s in that but expresses posite” Judge n. 7. Ikuta concern about here. Partial dissent at 702 As no that matter, range quotation. point, simply we quote an initial a wide More to the use from arising many Supreme to describe of cases different contexts. the Court’s words the the important part penalty may immigration consequences “succinct, are —of imposed clear, on noncitizen defendants who explicit,” the Supreme Court has crimes.” Padilla plead guilty specified held that an alien’s counsel who fails to — U.S. —, Kentucky, 130 S.Ct. inform the alien of consequences those has (2010) (footnote 1480, 176 L.Ed.2d 284 Padilla, provided ineffective assistance. omitted). “Preserving right the client’s 1483. may remain the United States be more After today, our decision alien defen- important any potential to the client than dants will know that an expunged state- (internal sentence.” Id. at 1483

jail quota law simple possession conviction for mil omitted). tion marks and alteration Ac immigration have adverse consequences.6 cordingly, “the threat of deportation may Those aliens will be able to make a fully provide powerful the defendant with a in informed plead decision whether to guilty plead guilty centive to to an offense that or to exercise their rights, constitutional Id. does not mandate that penalty.” such right as the to trial jury. See St. Cyr, (“In 533 U.S. at 121 S.Ct. 2271 in Lujan-Armendariz pro- Our decision exchange for perceived benefit, some de- vided clear assurance that expungement fendants waive several of their constitu- guilty after to the state crime plea trial) rights tional (including right to a simple drug possession would insulate the grant government tangi- numerous alien from adverse conse- ”). ble benefits.... quences. “Even if the defendant were not For those aliens who Lujan- relied on [Lujan-Armendariz initially ], aware of Armendariz, however, potential counsel, competent “[t]he defense following the unfairness in the retroactive practice guides, application” advice of numerous would today’s decision concerning significant have advised him “is and mani- [deci- Cyr, fest.” St. Cyr., St. importance.” sion’s] 533 U.S. at 533 U.S. at Indeed, 323 n. 121 S.Ct. 2271. in a 2271. Those that, aliens were assured af- one, situation similar to this where completion treatment, ter there interplay plea agreements government between urged immi- us to conclude that gration consequences resulting Lujan-Armendariz and the un- reliance on therefore was they plea fairness to aliens when indeed, enter into speculative. disagree; We it is agreements misunderstanding government’s argument that contains immigration consequences. interplay clear, speculation. be- binding Reliance on the pleas consequences tween the re- precedent Lujan-Armendariz strikes us as —and same, sulting unfairness —are the whether it entirely prudent, particularly reasonable and Congress pull rug inaction, or the courts that out light Congress' Supreme Cyr from underneath aliens. While St. does steady Court's denial of certiorari in cases analysis issue, not control of the third Chevron raising this and our own consistent factor, Oil (and, Court's discussion is relevant application arguably, expansion) of the and instructive. precedent in a spanning series of cases more Moreover, than a decade. course, rejected essentially recognize, argument the same nothing 6. We "[tjhere difference, guaranteed. because always is a clear ever There was for the some chance, instance, purposes [statutory] retroactivity analysis, would n facing possible deportation between retroactively. amend the law and and fac- Similarly, deportation.” Cyr, there certain was some chance that an St. 533 U.S. at conclusion, residing alien in the Ninth Circuit 121 S.Ct. 2271. would aliens’ appear move and be issued a notice to in a reliance on is not diminish- jurisdiction, Lujan-Armendar- different where ed they because of some outside chance that apply. argument, does not At oral would iz not receive its benefit. here, a reasonable we think it is vant consequences. absolutely legal no

would be intended ad- assumption Congress that rights constitutional of their Their waiver only for consequences immigration In verse Luyan-Armendariz. was in reliance either after who were convicted circumstances, easily conclude those these rights, such of their constitutional is met: exercise factor third Chevron Oil that the trial, after an informed right or in- as substantial produce “could our decision As rights. of those constitutional retroactively.” waiver if applied results equitable above, many alien defendants discussed Oil, at 92 S.Ct. 349. 404 U.S. Chevron Instead, they category. neither effectively to fell into unfair manifestly It would be and waived their constitu- pleaded guilty waiving their consti- aliens into hoodwink un- wholly uninformed rights with a legal of no tional promise on the rights tutional of their then, derstanding consequences of the and, retroac- to hold consequences understanding Contrary to their actually plea. car- their convictions tively that conse- immigration that there would be no severe “particularly ried with them ” the se- Padilla, consequence the actual removal, quences, at 130 S.Ct. ‘penalty of (“We in the Crowe, Nothing of removal. penalty think vere 1481; F.3d at 94 cf. purpose, or effect subject history, statute or its unfair to patently it would be that adverse assiduously suggests Congress that intended for fol- party a to a forfeiture consequences for those whose Wag- immigration binding precedent.”); circuit lowing out rights constitutional turned Corp., Am. waiver of Heavy Indus. ner v. Daewoo Indeed, (11th Cir.2002) (en banc) the Su- to be so ill-informed. that a (“It has instructed such punish preme those inequitable would be misunderstanding immigration gross following clearly established parties Circuit.”). a when caused consequences plea, precedent of this counsel, rises to the level of incompetent reasons, we conclude For similar Padilla, violation. 130 S.Ct. constitutional met: In Oil factor is the second Chevron We conclude retroactive 1486-87. history, purpose, the rule’s light of today of our decision will application effect, will not fur application retroactive immigration purposes further the at 106— operation. the rule’s ther laws. clear, make 349. As we now Congress intended that convictions factors, we the Chevron Oil Weighing have adverse simple possession state-law today apply only hold that our decision will At consequences. first immigration Glazner, prospectively. Cf. ap glance, may appear that retroactive (“If truly where this were a situation further today’s decision would plication by the persons affected new the class all, con purpose. After the state-law likeli- suddenly strong face rule would occurred, Congress intended victions they possi- faced no liability hood of when immi have adverse that such convictions before, liability we would be in- bility of gration consequences. weighing equities clined to view the appli- heavily pure prospective in favor of Congress But did not intend adverse cation.”). be- For those aliens convicted consequences for those who decision, of this publication fore the date merely charged with a crime sus- were For those crime; Lujaur-Armendariz applies. intended such pected of publication date duly aliens convicted after only for those who were con- results decision, Lujan-Armendariz victed, protec- of this all the constitutional justice system. Rele- overruled. tions of our criminal deny petition

C. We nevertheless is not a possession all, influence crime at in this case. and it thus qualitatively is different from any federal conviction which FFOA applies our

Because decision treatment would be Being available. un- only prospectively, we rule an der the influence is not a lesser offense to Lujan-Armendariz peti nounced in to the simple it possession because arguably is Lujan- tion for review in this case. In Armendariz, more than possession; serious mere being that expunged we held an simple possession under influence alters one’s sober conviction for did not of mind and immigration constitute a “conviction” for carries an immediate risk of cases, behavior, purposes. dangerous In later we held that posses- which mere for a expunged conviction “lesser offense” sion does not necessarily create. For ex- simple possession also did not constitute ample, one could foolishly agree to hide purposes. “conviction” friend, drugs for a which does not create Ramirez-Altamirano, 808-09; 563 F.3d at an immediate risk of dangerous behavior. Cardenas-Uriarte, 227 F.3d at In 1137. Rice We therefore overrule cases, those clear that was the conviction (9th Cir.2010).7 F.3d 952 The BIA did not was for a “lesser offense” because the alien err. a single

was convicted of car crime that Petition DENIED. ried a lesser than penalty the crime of simple possession. See Ramirez-Altami IKUTA, Circuit Judge, with whom rano, (“The at 808 structure of Judges O’SCANNLAIN and CALLAHAN plea agreement obviously [the alien’s] was join, concurring in part, dissenting part, intended to minimize his culpability concurring judgment: allowing facing him to seri avoid the more drug possession charge, ous and reflects overruling equal protection hold- the state’s view as to the seriousness Lujan-Armendariz INS, ing offense.”). (9th Cir.2000), Maj. see F.3d 728 op. at 688-90, the majority longstand- corrects a

Here, however, Petitioner was convicted law, error I case concur in being under the influence of metham- both reasoning its result. Having its phetamine. Being the influence is error, however, one corrected the majority not a lesser than simple possession. crime another, then holding commits that Although that possession we have held overruling ap- will paraphernalia lesser pos- is a crime than itself, ply prospectively only. of a at Because the ma- session least where the jority defendant fails to pleaded original down from an heed the Court’s charge Cardenas-Ur- simple possession, warning prospective decisionmaking iarte, (if ever) being F.3d at under the appropriate only in certain cir- that, Judge argues Ikuta if we correct (holding prospectivity appropriate are concerning about the Oil past Chevron factors Lu- precedent where we overrule “on which jan-Armendariz, relied”). litigants may then also petitioner must overrule This Rice, prospectively only. Rice certainly Partial rely dissent did not because he disagree. respect guilty 701 & We pleaded years n.6. Unlike with in 2001—nine before we reasons, Lujan-Armendariz, the Chevron Oil factors decided Rice. For similar we are support finding prospectivity unpersuaded inequitable do not that "substantial re- sults,” (internal respect parties to Rice. quota- and amici have id. 92 S.Ct. 349 presented omitted), litigants no evidence have re- tion marks will result from retroac- very lied on our recent decision in See application Rice. tive of our to overrule decision Oil, very holding Chevron 404 U.S. at recent in Rice.

696 here, 529, 536, 2439, I 111 115 L.Ed.2d 481 present not S.Ct. that are

cumstances (1991) cases); v. (citing of United States from Parts B and C dissent respectfully Johnson, 537, 543-45, 102 457 S.Ct. U.S. majority opinion.

(same). (1982)

2579, 73 202 L.Ed.2d

I The return to a more traditional Court’s judicial began with power view of United Virginia Department Harper v. In of Expressing v. Taxation, Court’s most re States Johnson. dissatisfac- Supreme non-retroactivity juris- prior tion with its prospective application cent on opinion “[rjetroactivi- decisions, that prudence declaring expressed Court judicial of Johnson, ty rethought,” must be 457 U.S. prospective about whether grave concerns 548, (quoting permissible. 509 at 102 S.Ct. 2579 Desist v. decisionmaking is ever 244, 258, States, 97-98, 113 2510, 89 86, S.Ct. 125 L.Ed.2d United 394 U.S. S.Ct. U.S. (1969) 1030, (Harlan, J., (1993). 22 represents only the L.Ed.2d 248 Harper 74 (internal dissenting)) Supreme quotation marks in a of Court deci latest series omitted), cut back on severely pow curtailed the Johnson Linkletter sions that have (subject excep- to certain engage holding deci prospective er courts to tions) [Supreme] “a a more decision of Court sionmaking th[e] and have articulated judicial Fourth Amendment to be power. construing of the See traditional view Ass’ns, Smith, retroactively to all applied Inc. 496 convictions Trucking v. Am. 201, 2323, final at the time the 167, yet 110 S.Ct. 110 L.Ed.2d were decision U.S. 562, (1990) (Scalia, J., in the was rendered.” Id. at 102 S.Ct. 2579. concurring 148 (“[T]he Kentucky, It judicial (Griffith ... is to was left to v. howev- judgment) role er, is, criminal prescribe bring law not what the era of non-retro- say what the Felton, 314, be.”); Agostini activity to 479 107 see also 521 a close. U.S. S.Ct. shall (1987). In Griffith, 117 L.Ed.2d 93 L.Ed.2d 649 S.Ct. U.S. (“Our (1997) general practice is to Court overruled Linkletter and held procedure] law we in a that “a criminal apply the rule of announce new rule [of cases, all retroactively before to be parties applied case to the us.... We federal, practice pending even we over state or on direct review adhere to this when (citation omitted)). yet final, exception[s].” a or not with no Id. rule case.” In explaining 107 S.Ct. 708. began Supreme experiment- Court decision, stated that the the Court Linklet- decisionmaking dur- prospective ter doctrine violated two “basic Walker, ing the 1960s. Linkletter v. adjudication.” norms constitutional Id. the Court created doctrine under which First, it 107 S.Ct. 708. violated the deny to a courts could retroactive effect “nature because judicial review” it al- newly proce- announced rule of criminal lowed a to decide on a new court rule 618, 629, 1731, 14 dure. 381 U.S. S.Ct. “apply law but refuse to rule to then (1965). In L.Ed.2d 601 Chevron Co. v. Oil all direct pending similar cases review.” Huson, it established similar doctrine 322-23, Second, Id. at 97, 106-07, cases. civil application new Linkletter’s “selective (1971). 349, 30 L.Ed.2d 296 the next Over principle of treating rules violate[d] so, applied decade or Court similarly [parties] the same.” Id. situated both of these doctrines a number of cases, It the civil justified by range is true that left non- rationales Griffith strength. retroactivity See B. doctrine Chevron Oil un- varying James Beam (Beam), n. Georgia touched. id. at 322 S.Ct. 708. Distilling Co. 501 U.S. See However, ex- subsequently misgivings The Justices’ non- regarding viability of non- doubts about the pressed retroactivity the civil context ex- found well, context, as retroactivity the civil Harper. pression opinion in the Court’s Beam, (six 529, 111 2439 See 501 U.S. S.Ct. justice Thomas, opinion in his the nonre- disapproving of selective Justices Qourj. S|;ate¿. context);1 Am. troactivity in the civil Beam controls this case, and we accord- Ass’ns, Trucking 167, 110 496 U.S. S.Ct. a ingly adopt fairly rule that (five reflects the plurality’s rejecting Justices nonretroactivity analysis). position a civil of Justices opinion announcing judgment articulating Court's that this function in Court, (joined Justice Justice Souter comport new rules decision must its Stevens) commented: cannot be duty to decide "Cases” and "Contro- “Griffith equality to the Its confined criminal law. legislature, Unlike versies.” a not we do similarly litigants principle, that situated promulgate pro- new applied rules to "be same, compara- be treated the carries should dissent, only,” spectively per- as the and Beam, in the ble force civil context.” Souter, haps Justice would have it. The J., (Souter, 111 S.Ct. 2439 an- judicial nature of review constrains us to Court). nouncing judgment He of the us, actually the case consider that is before further noted: and, requires if it us to announce a new Nor, finally, litigants distinguished are to be rule, so in to do the context and of the case purposes particular for choice-of-law on the parties apply brought to the it who us equities prospectivity: of their claims to warp case decide. To do to otherwise is to they actually whether relied on old rule we, judges, play the role that as in a Gov- they how would retroactive and suffer from powers. of limited ernment simply application of the new. It in the J., (Blackmun, Id. at 111 S.Ct. 2439 precedent, necessary compo- nature as (citations concurring judgment) in the omit- any system aspires nent of that to fairness ted). (joined by Scalia Justice Mar- Justices equality, and that the substantive law will Blackmun) shall and wrote: spring and not shift on such a basis. To think, judicial "[t]he I Power of the United extent, our limit this decision here does upon States” conferred such Court and applications possible Chevron Oil Congress may courts as inferior establish analysis, however irrelevant Chevron Oil judicial power must be deemed to be the as may otherwise be to this case. Because the by our understood common-law tradition. rejection pre- prospectivity modified is,” power say That is the "to what the law application cludes retroactive of new rule change power not the to it. so I am not litigants applied some to when it is not to were) (nor do I think our as naive forebears others, the Chevron Oil test cannot deter- judges to be unaware that in a real sense by relying the choice of law on the mine they judges “make” law. But make it as particular equities of case. it, say though they make which is to were 543, 111 Id. at S.Ct. 2439. Justice White is, "finding” discerning what the law it— Imports, noted "if the Court in [Bacchus decreeing today rather than what it Dias, 468 U.S. Ltd. to, changed or what it will Of tomorrow be. (1984),] thought L.Ed.2d 200 decision poses course this mode of action "difficul- reasonably been foreseeable hence practical ... ties of a sort” when courts rule, new not a there would be no doubt that prior precedent. overrule decide to But similarly be retroactive would to all situated those difficulties are one of the understood 544-45, litigants.” Id. at 111 S.Ct. 2439 judicial upon law-making; J., checks to elimi- (White, concurring judgment). in the Jus- substantially nate is to render them courts (joined by tice Blackmun Justices Marshall law,” Scalia) more free "make new thus wrote: assigned way fundamental alter in a agree newly I that failure de- responsibility among power balance of pending clared constitutional rule to cases the three branches. direct review norms violates basic J., (Scalia, adjudication. S.Ct. constitutional to me Id. concur- It seems (citations omitted). ring judgment) our decision in clear makes in the Griffith a rule function is applies tion that constitutional

Beam: When this it, parties adjudication legisla- law to before in effect of federal one of but controlling interpretation States, rule is the (quoting Mackey tion.” v. United full given law and must be of federal 679, 91 401 U.S. open still effect in all cases (1971)

retroactive (Harlan, J., concurring L.Ed.2d 404 events, all review and as to on direct (internal mark judgment)) quotation in the pre- such events of whether regardless omitted)). Thus, said, courts Harper of our announcement postdate date or in authority no more constitutional “ha[ve] the rule. in to disre- civil cases than criminal cases 97, 113 S.Ct. 2510. 509 U.S. at Harper, similarly situ- gard current law to treat imposing it was explained that The Court 97, litigants differently.” 509 U.S. at ated norms further same “basic this rule to Trucking (quoting S.Ct. 2510 Am. 113 that had adjudication” of constitutional Ass’ns, 214, 2323 496 U.S. at 110 S.Ct. nonretroactivity in it to eliminate caused (internal (Stevens, J., quota- dissenting)) (inter- in Id. the criminal context omitted). Griffith. tion mark omitted). The Court quotation nal marks Although severely limit- reasons for retrospec- “general that the rule of noted are ing decisionmaking non-retroactive judicial “gov- has effect” for decisions tive in did clearly Harper, set out the Court ... ‘judicial deeision[making] erned ” expressly overrule Oil.2 See Chevron 94, years.’ at a thousand Id. 113 near therefore must continue to consid- id. We quoting Kuhn v. Fairmont Coal S.Ct. 2510 announcing a er Chevron Oil where we are Co., 349, 140, 372, 54 215 U.S. 30 S.Ct. new rule of law the first time and (1910) J., (Holmes, dissenting). L.Ed. 228 fairly have the issue.3 See parties raised rule, the general In direct contrast to this 237, 117 Agostini, 521 U.S. at S.Ct. to “make retroactive or (power rules of law Harper strongly nonetheless indicated that “quintes- as fit” is prospective [one] see[s] a new purely prospective application of Id. at sentially” legislative prerogative.) rule is disfavored in this even situation. 140; 95, Griffith, 479 U.S. 30 S.Ct. see also Harper’s light disapproval In (“In 323, truth, 107 the Court’s S.Ct. 708 in- nonretroactivity, we should principle disregard current power assertion to retro- terpret exception the Chevron adjudicating us that Oil law cases before already activity expand- as a narrow and avoid have not run the full course of one review, an appellate quite simply application. asser- its may implicitly retroactivity.” rule of U.S. 2. Whether the lished a firm 511 32, 1483, 244, subject Chevron 279 n. 114 S.Ct. 128 L.Ed.2d overruled Oil has been Shannon, (1994) (citing Harper, Bradley 229 509 U.S. 113 some debate. See Scott 2510; Griffith, S.Ct. U.S. Prospective Application The Retroactive and 479 708). Decisions, Pol'y Judicial 26 Harv. J.L. & Pub. (Summer 2003) (reviewing Su- preme opinions concluding that Court's non-retroactivity, not 3. Another restriction on here, the Court has to a firm rule “reverted at issue is that a new rule of law must application ... the civil are- retroactive always applied retroactively it con- where na”). support jurisdiction. Such conclusion finds ex cerns our See United States Products, W., Landgraf v. Haight USI Film in which the rel. Catholic Healthcare “[wjhile (9th Cir.2010) (citing Court stated that it was accurate in United States York, say City that a announced in a new rule ex rel. Eisenstein New appli- judicial only presumptively decision was 173 L.Ed.2d cases, (2009)). pending estab- cable to we have since II long been outlier in the context of law; national immigration as noted forth Chevron sets three factors we Oil decided, majority, since was “the BIA determining must consider when whether every ... sister circuit to address[ ] applied prospectively a decision should be eight soundly total” have re- issue— construed, only. narrowly When re- jected holding.4 Maj. op. 689. Given by Harper, quired these factors do not context, majority’s hardly decision clearly support applying our decision over- establishes “new principle of law.” ruling Lmjan-Armendariz non-retroactive- Oil, Chevron 404 U.S. at 92 S.Ct. 349. indeed, weighs ly; heavily one factor contrary, To the Lujan- the demise of against a prospective-only application. (at Congress, Armendariz the hands of addition, practical jurisprudential both Court, or the en banc Ninth Cir- strongly encourage compli- considerations cuit) “clearly has been foreshadowed.” Id. preferred ance Court’s majority taking Because the is the unsur- approach of full retroactivity. prising step of conforming our case law to the rest nation of the rather than adopting A rule, an unanticipated legal new this factor The first factor in the Chevron Oil test does not weigh heavily in favor of non- applied whether “the decision to non- retroactive application of decision. its a retroactively prin- ... new establishes] law, ciple by overruling past either clear B may precedent litigants on which have re- lied, by deciding or an of first im- issue factor requires “weigh second us to pression clearly whose resolution was the merits and demerits in each by case Oil, 404 foreshadowed.” Chevron U.S. at looking prior history to the of the rule in (citation 106, omitted). 92 S.Ct. 349 Con- question, effect, purpose its narrowly, this strued first factor aims at retrospective whether operation will fur- identifying judicial those decisions un- operation.” ther or its retard Id. at 106- expectedly principle enunciate novel of 07, 92 strongly sup- S.Ct. 349.5This factor may unfairly litigants law which by take ports retrospective operation. surprise. abrogation Lujan-Ar- Our criteria; mendariz does not meet in- majority this As the acknowledges, Con- stead, it our circuit in brings gress’s line with the enactment of a broad definition of rest of the IIRIRA, nation. “conviction” in see U.S.C. Linkletter, consistently rejected Our have adopted 4. sister circuits 5. This was factor from position. Wellington See v. exclusionary which considered whether 115, (2d Cir.2010) curiam), (per 120-22 Ohio, by Mapp rule established v. 367 U.S. - denied, -, 2960, cert. U.S. 131 S.Ct. 643, 1684, (1961), 81 S.Ct. 6 L.Ed.2d 1081 (2011); Gonzales, 180 L.Ed.2d 245 v. Danso applied retroactively should be to cases that 709, (5th Cir.2007); 489 F.3d 716-17 Ramos already determining were final. that the Gonzales, 800, (7th v. 414 F.3d 805-06 Cir. purpose Mapp rule not be would served 2005); Gen., Att’y v. U.S. Resendiz-Alcaraz by application, its retroactive noted (11th Cir.2004); 383 F.3d 1271-72 El purpose exclusionary rule was the (10th Comfort, kins v. 392 F.3d 1162-64 action,” police pur- of] lawless "deter[rence Cir.2004); Ashcroft, v. Acosta 341 F.3d pose that would not "at this late date be (3d Cir.2003); Vasquez-Velezmoro 224-27 by guilty served INS, the wholesale release of Cir.2002); 697-98 cf. Linkletter, 636-37, INS, at victims.” 381 U.S. Herrera-Inirio 304-09 (1st Cir.2000). S.Ct. 1731. language” of a statute 1101(a)(48)(A),clearly straightforward its in- expressed con- simple speculate no to about state-law “leaves room “that convictions tent intent,” con- not “carve immigration adverse courts should gressional possession are judicial if those convictions statutory exceptions even based on sequences” out Maj. the state courts. no There is expunged good policy). later perceptions” a result holding that such at 694. In op. majority’s for the support the statute protection rights of equal would violate the application will not claim that “retroactive offenses, Lujan- state convicted of aliens Maj. op at operation.” further the rule’s the realization Armendariz frustrated Indeed, in- by substituting its own 694. majority an- Today, the Congress’s intent. Congress, the tent for that of that, contrary Lujaur-Armen- nounces Congress’s usurps legislative “prerogative” dariz, guarantee “the constitutional make enactments “retroactive treating, not require does equal protection fit,” Harper, 509 see[s] prospective [it] expunged immigration purposes, effectively drug crime the same conviction of factor for Chevron Oil’s second eliminates conviction that has been as a federal (be- any case where a statute is involved Maj. op. the FFOA.” expunged under always its own impute cause a court can finally This ruling frees Congress). ap- This equity views on BIA, judges, the court also contrary to Chevron Oil and proach 1101(a)(48)(A) and Congress as intended § contrary Harper. expands scope, to applied it has a decade been over overruling By the Ninth Circuit. outside C only prospectively, inquire third to The factor instructs us however, majority delays giv- the further produce “could sub- whether decision Congress effect a law that enacted to inequitable applied results if retro- stantial years majori- ago, ten even while the over Oil, actively.” Chevron U.S. at Lujan-Armendariz’s equal ty repudiates (internal quotation marks omit- analysis. The reasonable S.Ct. protection ted). delay by diversity this provided that the caused Given the relief conclusion is “retard[sj” op- statutes, including the prospective application expungement majority’s rule. See eration new allow even expungement statutes that Oil, at 349. Chevron 404 U.S. offenses when alien is convicted trial, see, §§ e.g., at CaLPenal Code contrary majority’s The conclusion 1210.1(e), it to the ex- know impossible Congress “assumption” based on its to which aliens waived their constitu- tent to the stat- could not intended have on rights Lujanr-Armen- tional in reliance may their ute to aliens who have waived Maj. at But even op. dariz. See on our er- rights constitutional reliance their trial assuming that aliens did waive precedent. Maj. op. See at 694. roneous subsequently rights expectation course, solely assumption, This arises avoiding consequences majority’s belief that from offenses, defeating such ex- their way it equities would balance the the same re- produce inequitable pectations would Congress’s But must discern does. sults, equities a full consideration from it language intent of the statutes result ignore inequities that will enacts, cannot our own on perspectives from Gonzales, its new majority’s application 520 from policy. See States v. United nonretroactively. majority’s The de- 1, 9-10, rule 137 L.Ed.2d U.S. (1997) significant inequities be- “the cision will create (noting that where Maj. op. 695-96, aliens in the Ninth tween Circuit who were at overruling while Lu- jan-Armendariz before the date of this progeny convicted decision its other only prospectively, Maj. see subsequently op. and who had those convic at 694-95. Under Harper, all because ma- expunged, tions other aliens with jority applies its new rule abrogating Rice expunged everywhere convictions in the Nunez-Reyes, abrogation to this “must be in the first country. group, The aliens given full retroactive effect in all cases still they actually on Lujawr- whether relied open direct Harper, review.” not, Armendariz or could avoid the immi words, 113 S.Ct. 2510. In other convictions, gration consequences their majority singled out unlucky one sub- group while all those in the second would (aliens Rice) may class who have relied on deemed have “convictions” under (aliens larger from the class has created 1101(a)(48)(A) plain language of may Lujarir-Armendar- who have relied on such consequences. would to suffer progeny) iz and its with apparent justi- no short, majority’s decision will lead fication other than the fact that Nunez- “similarly being situated” aliens treated Reyes’s happened case fall within the future, differently Harper, in the 509 U.S. purview of Rice.6 This runs directly coun- (internal quotation 113 S.Ct. 2510 ter to the Supreme Court’s statement omitted), no marks basis the Con Harper courts must not allow “the or the statute for the stitution difference. substantive according [to] law shift” inequity exacerbates particular equities “the of [an individual by choosing (internal to overrule Rice 597 party’s] Id. quotation claim[].” (9th Cir.2010), omitted). retroactively, F.3d 952 see marks majority gives explanations expunged two its offenses in these cases does not Rice, inconsistent treatment of neither of help question why only answer the of one First, persuasive. is majority which the as- wrong these decisions should be overruled wrongly that serts Rice was more decided retroactively. Holder, than v. Ramirez-Altamirano Second, majority par- the notes that "[t]he (9th Cir.2009), 800 and v. Cardenas-Uriarte presented and ties amici have no evidence INS, (9th Cir.2000), 227 F.3d 1132 because litigants very that have relied recent (being the state offense at issue in Rice Maj. op. decision in Rice." 695 at n. 7. This influence) the is less like federal the offense purported unpersua- distinction of Rice is also by (simple possession) covered FFOA is than parties sive: the and provided amici as much the state offense at issue in Ramirez-Altamira- they "evidence” of reliance on Rice as did of (possession no and Cardenas-Uriarte of any reliance on of the other cases. In a word: paraphernalia). majority explains, As the " Rather, none. the "evidence” of cit- reliance possession paraphernalia 'pos- while is a ” parties ed the crime,' amici amounted little being session under the influence more than assertions that the bar defense any "possession,” does not involve kind of prior knew our case law and so informed "qualitatively and thus it is different from course, their clients. Of that case law includ- federal conviction for which FFOA treatment Lujan-Armendariz, only ed not but Maj. also op. at would available.” 695. More- See, over, progeny. e.g., Drug Policy Brief for Alli- possession the asserts that et Supporting ance al. as Amici Curiae Peti- drug paraphernalia is a “lesser offense” than n.4, at possession, Nunez-Reyes tioner 6 v. simple being No. whereas under the 29, 2010) (explaining 05-74350 Cir. Oct. analysis is at influence not. Id. 695. But this immaterial, completely practice that given “established criminal defense in all three cases, along Lujan-Armendariz, states the Ninth of these within Circuit” is based on decisions,” Lujan-Armendariz wrongly were decided of the "the because same line equal protection analysis; eight erroneous there- which includes fore, decisions). majority's comparison types the of the other 702 tutional decisions” the our decision overrul- applying

Given Harper. in 113 S.Ct. non-retroactively reaffirmed Id. Lujavr-Armendariz Neil, 409 (quoting 2510 Robinson U.S. inequitable results” creates “substantial 505, 507, aliens, 35 L.Ed.2d 29 similarly Chevron situated among (1973)). Here, practical jurispruden- weigh heavily in not factor does third Oil’s heavily weigh also in tial considerations application.7 a non-retroactive favor of application of our rul- favor of retroactive D ing. sum, generally “ha[ve] because courts crucial in the area Practical concerns are authority in civil more constitutional

no law, regulating im immigration because disregard cases to than criminal cases legisla migration prerogative of the similarly or to treat situated current law tive See Garcia-Ramirez Gon branch. differently,” Harper, litigants zales, (9th Cir.2005) Trucking Am. (quoting 113 S.Ct. 2510 (“[T]he (Gould, J., concurring) Constitution Ass’ns, 214, 110 496 U.S. at gives superordinate Congress, role to (internal J., (Stevens, dissenting)) quota- courts, in regulating and not to the federal omitted), excep- the Chevron Oil tion mark immigration the flow and content retroactivity must be treated as a tion States.”). United Because minimum, then, we narrow one. At a power immigration,” over “exclusive where all exception should paramount frequently stressed clearly prospectivity. factors favor three importance uniformity of national fac- here second Chevron Oil Because Ashcroft, area. Cazarez-Gutierrez v. See weighs heavily against non-retroactive tor (9th Cir.2004) (noting F.3d fac- and neither other application, “strong uniformity interest national for a provides strong support purely tors administration of decision, Chevron Oil does prospective INS, laws”); Kahn v. majority’s decision. support (“The (9th Cir.1994) designed INA ‘was implement uniform policy,’ federal Ill concepts meaning important to its application are ‘not to the factors of Chevron Oil do not be determined ac Where forum, to the law of the but rather overwhelmingly support ap- cording the disfavored ” (al application, require a uniform federal definition.’ of non-retroactive we proach omitted) INS, give (quoting to the teration Rosario v. “general instead effect should (2d Cir.1992))). 220, By ap- 962 223 retrospective rule of effect ... consti- F.2d consideration”). the Oil’s fac- vidualized As Court In its discussion of Chevron third however, tor, Harper, we are majority repeatedly to and made clear in the cites is, (that 289, Cyr, apply opposite presumption quotes from INS 533 U.S. 322- the the v. St. effect,” 23, 2271, (2001). "general retrospective rule of 509 121 S.Ct. 150 L.Ed.2d 347 2510) Maj. op. Cyr U.S. when it comes inapposite, at St. at See however, 692-94. decisions, judicial "[t]o with the because do otherwise because it dealt retroactive we, statute, judges, play presumed warp is to the role that as in of a which is to be effect Beam, Landgraf, powers,” a prospective. 511 at Government of limited 501 See U.S. J., (Blackmun, (holding S.Ct. that in U.S. at 111 2439 114 S.Ct. 1483 consider- statutes, words, concurring judgment). apply in the In other the retroactive effect of analysis retroactiv[ity],” Supreme Court's of "reliance” “presumption against out of a 315-25, Cyr, at recognition "[(legislature's in St. 533 U.S. that a un- "fairness” analysis powers sweep away 121 cannot dictate our in it to set- S.Ct. matched allow expectations suddenly and indi- this case. tled without

703 overruling Lujan-Ar that our plying ruling decision insistence be given only non-retroactively, prospective application where there is squared mendariz cannot be so, doing no constitutional reason for the with and with the Harper under- Justices’ Congress’s authority majority usurps lying concerns.8 derogates principle from this of national straining Instead make the law fit uniformity. good its notion of policy, majority has emphasized

The should have followed the advice Harper jurisprudential substantial concerns that prospective reserved decisionmaking fact, weigh against non-retroactivity; the rare case all where three Chevron speak directly against the Justices seem to Oil clearly point doing factors toward so. by approach adopted majority. majority abjured Because the this wis- Souter, Stevens, course, joined by Justice er I respectfully Justice dissent. asserted Beam that “the Chevron Oil PREGERSON, Judge, Circuit

test by cannot determine choice law whom B. Judge joins, FLETCHER relying equities particular on the of the dissenting: Beam, 543, 111 case.” 501 S.Ct. (Souter, J., announcing judgment INS, Lujar-Armendariz v. 222 F.3d 728 Court). Blaekmun, (9th joined Cir.2000), Justice equal protection holds that Scalia,

by Justices Marshall and wrote that laws is denying violated Federal judicial (“FFOA”) “[t]he nature review constrains First Offender Act relief to actually us to consider the case that aliens whose first-time minor of us, and, if requires before it us to an- fenses expunged by were a state-court rule, new judge nounce a to do so in the context successfully after the offender com parties pleted the case and to the who state-approved pro rehabilitation brought gram. us case to decide.” Id. at majority overturns this well- (Blaekmun, J., concurring circuit precedent established in doing Court). the judgment of the Scalia so Justice overturns of our number cases that recognized that in a judges real sense followed the rule. law, “make” but that “they three-judge opinion stated make it addition to the panel it, case, as judges say make which is to in this these overturned cases include they Holder, (9th though ‘finding’ were Rice discerning 597 F.3d 952 Cir. it— is, 2010), Holder, what the law rather than decreeing Romero v. 568 F.3d 1054 (9th to, today Cir.2009), what changed it is it will what Ramirez-Altamirano (9th Cir.2009), tomorrow be.” Id. S.Ct. 2439 Dill (Scalia, J., INS, concurring judgment). ingham v. 267 F.3d 996 Cir. 2001), perspectives INS, These commanded a and Cardenas-Uriarte v. (9th Cir.2000). Where, here, of the Harper. F.3d 1132 majority The the clearly Chevron Oil factors do not throws more ten years out than of our support non-retroactivity, precedent majority’s the cursory without so much as a (3) explanation 8. A further of the benefits of a “is ... consistent with traditional under- retroactivity firm of is set decisis”; rule forth Shan- standings of the of doctrine stare non, supra note 2. Professor Shannon con- (4) superior prospectivity-based and “is to (1) retroactivity: cludes that firm of rule "is approaches private because it better furthers adjudi- more in accord with the nature of the ordering, adjudication, fair and and efficient alternatives”; (2) cative function than "is public judiciary.” Id. confidence in the understandings with consistent traditional 836-37. dicta”; holding the distinction between and give fit to folks who commit whether Con seen those question examination drug opportu- maintain FFOA treat the minor offenses an intended to most gress first-time minor them- state-expunged nity chance—to redeem for second ment —a majority rehabilitation, Specifically, and thereaf- drug through offenses. selves question whether Con to straight path fails address narrow to ter walk a and “conviction,” set 1996 definition gress’s society members of and productive become 1101(a)(48)(A) of the Immi forth For immi- a credit to their families. some (“INA”), Nationality Act and gration lawfully-ad- grants, including thousands of (a)(48)(A), includes § 1101 court-or U.S.C. residents, this chance mitted second also majority all. The expungements dered stay country means in the being able interpretation statutory this skips over majority’s families intact. The with their jumps con improperly and question today of our precedent abandonment question in equal protection stitutional drug means first-time minor offenders See, Co. e.g., Oil Cali stead. Standard complied fully within circuit who have our 1021, 1023 Arizona, fornia stringent state’s rehabilitation their (“[W]e Cir.1984) must, if at all possible, their programs, and who have had minor statutory grounds cases on before resolve expunged by a state court convictions questions”) (citing reaching constitutional judge, subject will re- nonetheless McMillan, County, Escambia Fla. them, moval For from United States. 48, 51, 104 80 L.Ed.2d 36 there will be no second chance. Thou- curiam)). (1984)(per asunder, sands of families will be rendered worse, majority make To matters of thousands of American-born tens petition review in case denies the consequences. will suffer children though apply new even decides its result, submit, repugnant This I is harsh denying offenders FFOA relief rule state kindness, compassion, to the values state-expunged drug first-time convic- fundamental fairness. only. The is prospectively tions result strongly I therefore dissent. petitioner separated that the will be from wife two American-born his citizen A. drug children because of a minor convic- dissenting opinion out This starts where judge that a ex- tion—one California have, by examining should majority successfully petitioner because the punged Appeal’s Immigration Board program. completed state rehabilitation (“BIA”) in the now before us. decision case majority unjust. a result Such Nunez-Reyes’s petition for re Analyzing injustice by ensuring compounds view, Lujar-Armendariz I adhere to will thousands minor offenders Because progeny. walks separation the same cruel from their suffer away rule from in the days families ahead. majority’s pro prospectively,1 the nation. America a second-chance to Nunez- nouncement does year, people, Each thousands some Reyes’s case. immigrants country, are them to this Nunez-Reyes (“NunezAEteyes”)is Flavio caught up justice system making thirty-five-year-old national of Mexico drug of committing the mistake minor who the United States without through But the FFOA entered offense. majority’s question whether the 1. Because I believe that the rule articulated in reach upheld, apply only prospectively. new rule should should be I do not inspection in His United citi- recognizing States While that our court has ap- wife and two American-born children plied zen FFOA treatment convictions for Jose, in San California. reside offenses,” “lesser the BIA held that Nu- nez-Reyes had pleaded not down from a 2001, Nunez-Reyes charged was with simple charge possession and that being possession felony one count of of metham- methamphetamine under the influence of Health phetamine, violation California is not a “lesser offense” than that of simple 11377(a). § Safety felony Code This & possession. charge was later reduced a misdemean- Nunez-Reyes charged, or. was also under The matter came before our court on being same complaint, using or review, appeal. Under de novo we faith under the influence of methamphetamine, fully applied precedent, which holds Safety in violation of California Health & that state-expunged drug pos first-time 11550(a). § charges against Code dispositions session that would eligible be Nunez-Reyes ultimately were dismissed for FFOA treatment are not convictions stat- pursuant expungement California’s purposes for of the immigration laws. Nu offenses, for which drug possession ute nez-Reyes 602 F.3d that court ... set states the state “shall (9th Cir.2010) curiam) (per (citing Lujan- and ... [the conviction] aside dismiss Armendariz, 734-49, 222 F.3d at and Gar successfully indictment” if defendant INS, (9th berding completes probation and that “both Cir.1994)). circuit, Under the law of our shall arrest the conviction be deemed FFOA treatment applies also to a “lesser to have occurred.” CaLPenal Code never possession offense” than that simple of a 1210.1(e)(1).2 § controlled substance. See Cardenas-Ur In early government the federal INS, iarte v. charged Nunez-Reyes under 8 U.S.C. Cir.2000) (noting congressional intent 1182(a)(6)(A)(i) § as removable alien. indicated that the crime of posses lesser removability Nunez-Reyes conceded but drug paraphernalia given sion of should be status, adjustment for applied cancella- treatment). Thus, FFOA and, removal, alternatively, volun- tion FFOA, tary departure. Judge The Immigration an alien cannot deemed “convicted” (“U”) held that the state conviction ren- if purposes he can dem- ineligible form Nunez-Reyes dered (1) onstrate the conviction was his relief. The BIA affirmed deci- the IJ’s (2) offense; first he had not previously Nunez-Reyes sion held that could treatment; been accorded first offender himself of relief under the FFOA avail (3) possession his conviction was for for using being because his conviction or an drugs, equivalent or lesser charge of methamphetamine under the influence possession such as paraphernalia “not one federal

was for which first offend- (4) ...; he received relief under a treatment would be available.” The er rehabilitative statute. reasoned the FFOA applies BIA Ramirez-Altamirano, (ci- offenses, 563 F.3d at 812 simple possession and that be- omitted). methamphet- Nunez-Reyes easily ing under the influence of tation met first, second, simple requirements possession amine is not a offense. and fourth Act, (2006) "Proposition codi- also known 2. California Penal Code 1210.1 tion 36.” fies the Substance Abuse Crime Preven- eligible left are for the same question for FFOA relief. Nunez-Reyes’s drug pos- whether treatment those convicted of panel for the was using being or under for under the FFOA.” Id. at 957. conviction session methamphetamine was in Following precedent influence forth set charge” simple Cardenas-Uriarte, than “equivalent or lesser we F.3d drugs. possession dis- reasoned that there was “no relevant ... pos- tinction the offenses of between on our Importantly, panel relied using or drug paraphernalia session and in recent decision Rice court’s being under the influence of a controlled (9th Cir.2010), where we F.3d substance, generally are less seri- as both misdemeanor a for held that conviction Rice, possession.” than simple ous under the influence of a controlled being 956; Ashcroft, also Medina v. F.3d see qualifies as a offense” substance “lesser (9th Cir.2005). Rice, We for treatment. In eligible FFOA further that “we can felony noted be sure charged was with one petitioner influence using one or under the of a possession being of cocaine and count being un- is a offense using misdemeanor count of or controlled substance lesser a under it posses- der the influence of stimulant because is a misdemeanor while (internal pleaded at 954. Rice felony.”4 California law.3 Id. a sion cocaine is Id. omitted). was nolo contendere and convicted both marks and citation The BIA’s completion of three in Upon Nunez-Reyes’s offenses. Id. decision was ren- case probation, aside years of court set dered before our well-reasoned decision contendere, pleas Rice’s of nolo entered Rice. of not and the com- pleas guilty, dismissed Judge As Graber’s concurrence to Id. plaint. During proceedings, removal out, panel opinion correctly points Rice statutorily ineligible the IJ found Rice for legal questions “answered the raised he had cancellation of removal because case, [Nunez-Reyes’s] and no dis- factual a controlled violating been convicted for Nunez-Reyes, tinction exists.” The BIA substance law. Id. dismissed J., (Graber, concurring) (emphasis at 1105 appeal, holding Rice’s Rice would added). then, According precedent, to our for eligible have been for FFOA treatment Nunez-Reyes treat- eligible for FFOA being

the offense of under the influence state-expunged and ment his convictions only simple a controlled substance because him grounds deny cannot be used as relief, possession eligible were for offenses pan- relief from The three-judge removal. thus, immi- stood for Rice convicted Nunez-Reyes’s petition re- granted el purposes. gration Id. proceedings. manded for further Id. The Rice, granted petition panel got right. “persons review held that convicted of Yet, using Judge or of a being under influence Graber’s en banc substance, pe- controlled where that offense is now opinion Nunez-Reyes’s holds simple possession, less serious than It tition review should be denied. does being person using using being 3. This count A misdemeanor convicted of or under the influence of a controlled substance under influence of stimulant was Safety violation of California Health & Code Nunez-Reyes same for which was violation 11550(a) § guilty of a "is misdemeanor Safety convicted California & Health less shall be sentenced to serve term of not 11550(a). Code days year than 90 or more than one county jail.” Rice, reasoning that by overruling so “be- FFOA “as a federal limited rehabilitation is under the influence not a lesser statute ing permits that first-time drug offend simple possession” than because it ers crime is who commit the least type serious of all, at possession drug and it “not crime is offense to avoid the drastic conse qualitatively any quences from feder- typically thus different which of finding follow guilt for which FFOA treatment in drug Lujan-Armendariz, al conviction cases.” Op. be at Maj. available.” 695. The F.3d at Nunez-Reyes’s would 735. convic that majority “[bjeing being further reasons un- tion for using or under the influence der the influence is not a lesser offense to of methamphetamine is the “least serious possession it simple arguably type because of drug In Nu offense.” contrast to ” possession.... nez-Reyes’s more serious than mere felony possession of metham Op. at Maj. phetamine 695. charge, his using conviction for being or under the influence of metham reasoning majority’s is flawed. phetamine was a misdemeanor. See Cal. “Our review is to the actual limited 11377(a), Health Safety §§ & Code grounds upon by relied the BIA.” Ra- 11550(a). Nunez-Reyes’s And drug use mirez-Altamirano not even a federal crime: there is no (citation Cir.2009) omitted). 800, 804 equivalent criminal federal statute that “If conclude we the BIA’s decision prohibits using being or under the influ upon reasoning, cannot be sustained ence of a controlled substance. See agency must remand to allow the to decide §§ U.S.C. If being 841-865. under the any remaining issues in the case.” Id. The influence “arguably is more serious than distinguished Lujan- BIA case from .,. [,]” possession Maj. mere Op. at Nunez-Reyes Armendariz because was the majority to explain why fails neither charged “convicted under California Congress nor the of State California chose using or being law under influence Thus, to treat it as such. denying methamphetamine.” of The BIA found Nunez-Reyes the benefit FFOA treat Nunez-Reyes’s using or conviction be- ment for his expunged using conviction for under the methamphet- influence or being influence drugs, under the amine “not analogous to offense for not frustrates the intent federal which first offender treatment Congress ignores but also the criminal available,” would and therefore held statutory of both Congress schemes the conviction’s dismissal was “not California, being which treat using both or akin to expungement.” FFOA under the as a “least type influence serious short, using the BIA being stated that or drug offense.” methamphetamine influence of qualify did for FFOA treatment be- Nor does the simple distinction between simple possession cause was neither a possession using or being under the nor a simple offense “lesser” offense than influence drugs make sense under these possession methamphetamine. Congress circumstances. criminalized However, circumstances, possession drugs, part, “[u]nder these least in be- concluding being that [using people drugs. under the cause it did not want use Thus, of a given influence controlled is not underlying purpose substance] FFOA, included the First Act Offender would the FFOA’s rehabilitative scheme congressional logically frustrate intent and applies protect lead to first time Cardenas-Uriarte, users, an absurd result.” along drug posses- with first time sors, “against intended consequences the harsh 708 Lujan- of in “an drug possession conviction.” a controlled substance from a

follow that, Armendariz, specified by of regulation 222 at 737. amount as F.3d General, Attorney is a use personal the way analogy, previously By have of Thus, § 21 Nu- amount....” U.S.C. 844a. 1227(a)(2)(B)(i) held 8 U.S.C. —an nez-Reyes qualified would have for FFOA removability of automatic exception to the enough been fortunate to treatment had he single “a involv- aliens convicted of offense by federal rather caught agents have been of 30 for one’s own use ing possession by than state officers. ap- marijuana” implicitly or grams less of — support position, To use of possession to both and actual plies Cardenas-Uriarte, 227 Medina, claims that in F.3d at 1066. marijuana. See “ ” Ramirez-Altamirano, at 563 logical be- This ‘makes absolute sense’ 808-09, at “it was F.3d clear drugs “use ‘has been generally cause of for a ‘lesser offense’ be- conviction was pos- a less serious crime than considered ” single a cause alien was convicted of (quoting Flores-Arellano session.’ Id. Cir.1993)). INS, penalty crime that carried a lesser than 360, 363, n. 5 F.3d Maj. Medina, simple possession.” Op. the crime of Here, as in reason to “[i]t defies Contrary reasoning, at 695. to this howev- protect to conclude that wanted er, on of neither case relies the number person possessed [methamphet- a who use, or fact of “possession.” convictions on the amounts his own amine] small for Cardenas-Uriarte, possession drug In of from the but then wanted remove him Thus, Arizona con- paraphernalia under law was country if use he did so it.” Id. offense” sidered “lesser not because distinguishing possession drugs between only petitioner was the offense the had use, allowing only and their the former to to, “it pleaded because be a treatment, but would for FFOA frustrates qualify probation misdemeanor once was success- congressional intent leads to absurd fully completed possession while results. drugs felony.” would have been Moreover, Nunez-Reyes pros- had been Ramirez-Altamirano, at 1137. F.3d by government ecuted the federal rather possession drug of- paraphernalia California, than he would the State law fense California was considered only charged simple pos- have been with a “lesser “it offense” because would because, methamphetamine session to deny absurd relief to individu- [FFOA] mentioned no federal previously, there is possess who utensils als incidental being criminal prohibiting using statute or drug ingestion grant but to those relief under the influence of a sub- controlled possess actual drugs,” who illicit §§ stance. See 21 U.S.C. As we 841-865. pleaded guilty petitioner because Rice, possession with noted “[a]s only paraphernalia pos- the misdemeanor ‘Congress paraphernalia, would never Thus, charge. session 809. including’ considered under the FFOA neither case was the number offenses or being influ- using offense under the dispositive. fact of “possession” substance, of a no ence controlled because conclusion, therefore, majority’s remains Rice, federal statute covers that crime.” unsupported. (quoting 597 F.3d at Cardenas-Ur- iarte, citing 841-865); §§ square majority’s see It

U.S.C. also Ramirez-Al- is difficult to tamirano, fact, prospective-only application F.3d at 808. In feder- of the new today it sets imposes penalty al law civil rule out the denial Nunez-Reyes’s expunged dispositions As the from petition review. the definition 739-43, majority recognizes, a substantial number of “conviction.” 222 F.3d at 745- Lujan-Ar- acted in of aliens reliance Prudence that we counsels exert more they pleaded guilty when effort abandoning long-estab- mendariz before such Maj. lished, Op. eleven-year-old precedent. under law. at drug crimes state Relying equitable on consider- 692-93.

ations, majority concludes that we the 1. must the reliance interests those protect Lujan-Armendariz, part In based in on may forgone who offenders equal analysis, an protection we held that rights their under the rea- constitutional “persons qualify whose offenses would for they sonable would not face belief treatment under the but who are [FFOA] immigration consequences plead- harsh for convicted have their convictions ex- ing guilty undergoing rehabilitative punged may state laws be not re- drug Maj. atOp. treatment. 693-94. The moved on account of those offenses.” majority recognizes that Lujan-Armen- holding, F.3d at so Lujan-Armen- petitioner, dariz Nunez- applies the faithfully dariz adhered to congressional Reyes, still for petition but denies his re- intent underlying the FFOA in “per- fails, however, majority view. The to dis- mit[ting] drug first-time offenders who tinguish proge- type commit the least drug serious of- ny Nunez-Reyes’s from case. Nor can the consequences fense to avoid the drastic majority adequately explain why Rice was which a typically finding guilt follow Therefore, wrongly decided. under Lu- drug Id. cases.” at 735. Cardenas-Uriarte, jan-Armendariz, Ra- Given the disposi FFOA’s directive that mirez-Altamirano, Rice, I would eligible tions for FFOA relief “shall not be grant Nunez-Reyes’s petition for review. a purpose considered conviction a disqualification or disability imposed by B. crime, upon law conviction or for majority’s opin- The BIA’s review the 3607(b) (em other purpose,” 18 U.S.C. Additionally, ion it remains un- flawed. added), phases give we must meaning to why majority opinion clear even within statute context. Lujanr-Armendariz’s the issue of reaches As majority both the and the BIA, viability. Nunez-Reyes’s recognize, “deportation is inte case, distinguished Lujan-Armendariz to gral part indeed, sometimes the most im — satisfaction, but, majority’s puzzlingly, portant part may penalty be —of the opinion devotes the bulk of its efforts imposed on noncitizen defendants who overruling Lujan-Armendariz. Be- plead guilty specified Maj. crimes.” Op. grounds cause we must limit our review to — (citing at 693 v. Kentucky, Padilla BIA, actually ruling discussed —, 1473, 1480, entirely improper. is out of bounds and (2010)). L.Ed.2d can And there Pascua “particularly little doubt that severe Cir.2011). ” removal, ‘penalty’ of is one of id. Moreover, consequences” overrules Lu- the most “drastic that re jan-Armendariz grounds sults To drug fully constitutional from conviction. addressing independent Congress’s without statu- intent effectuate to insulate tory justification, Lujanr-Armen- on which first-time offenders who ex- complete relied, excluding expressly pungement programs extremely dariz state- from the otherwise, of whether actual- that would otherwise consequences harsh ly majority simply to do so. The actions, intended FFOA relief from their result “Congress that con- assumes intended eligible aliens con- must possession simple victions for state-law offenses, also to those of federal but victed immigration consequences,” have adverse Otherwise, the of state offenses. convicted Maj. explain but fails to from Op. efficacy loses much of its because FFOA congressional where it divines such intent. it offers can be circumvented via the relief Con- prematurely should not review We system. criminal justice the state gress’s purported distinction between state expungement a cursory federal under form of rational basis review without first mind, in if Keeping principles these even looking at the relevant statutes to deter- in equal protection analysis set forth the Congress actually mine whether intended abandoned, it Lujaiu-Armendariz is does for to such a distinction exist. state-expunged that not follow first-time In Congress addressed the mean- ineligible offense are for convictions of by enacting the term “conviction” Lujan-Armendariz, treatment. In FFOA following the definition: not what effect the 1996 we did consider means, The term “conviction” with re- “conviction,” pro amendment to the term alien, spect judgment an a formal of 1101(a)(48)(A), § in 8 had mulgated U.S.C. or, guilt by alien a court of the entered if expungements In specifically. on state withheld, adjudication guilt of has been stead, held we that the 1996 amendment where— repeal did not the FFOA we then (i) jury the judge a or has found alien

simply extended this conclusion to state plea or the alien equal guilty on the basis of has entered of expungements pro guilty 222 Put or nolo contendere or has admit- tection. F.3d at 742-43. another ted facts way, Lujan-Armendanz’s equal protection finding sufficient to warrant guilt, of necessary rationale had force absent (ii) question

an to the of “what effect answer judge the some form ordered conviction] the new has on punishment, penalty, definition[of or restraint the expungements state under rehabilita liberty to be imposed. alien’s general.” tion laws in 222 F.3d at 742. 1101(a)(48)(A). § 8 U.S.C. that

Assuming Lujan-Armendariz’s equal The legislative history the behind analysis longer stands, protection no amendment definition of “convic- engage in statutory analy must now tion” fully supports the conclusion that sis. state-expunged drug possession first-time Congress’s 1996 amendment to the term are not offenses “convictions” under 1101(a)(48)(A) § suggests that it had “conviction” no inten- INA. F.3d at altering enacting tion of the BIA’s to in- 739-43. decisions 8 U.S.C. 1101(a)(48)(A), § federally-expunged Congress state- and adopted clude convic- most “conviction,” majority, from that term. The in of the definition tions BIA’s as it Ozkok, equal to the that was I. & leaping protec- conclusion laid out Matter N. (BIA 1988). Congress Notably, tion is not Dec. violated because could 551-52 similarly- have made a to treat definition no mention decision’ amended makes rule, differently aliens “the cited with the BIA approval situated rational review, Ozkok, engage expunged that convictions basis declines can- analysis, through statutory interpretation deportation.” not as the serve basis Lujan-Armendariz, jan-Armendariz’s 222 F.3d at 742 n. 23. holding that the 1996 Moreover, Congress new promulgated its amendment to the definition of “convic just 1101(a)(48)(A) definition “conviction” after tion” of the INA did BIA that immigration reaffirmed its rule expressly impliedly repeal do consequences not attach to state-ex holding Its thereby FFOA. leaves intact punged drug possession first-time of exception expunged the FFOA’s first- fenses, they be would treated time controlled substance offenses from same un expunged as federal convictions Lujan- the definition of “conviction.” See Manrique, der the FFOA. See Matter Armendariz, 222 F.3d at 737. (BIA 1995). 21 I. Dec. & N. As Thus, in amendment, enacting out, points Congress adopts amicus when appears “it was concerned agency interpretation, Congress intends primarily question ... with the whether agency incorporated construction could be deported during period aliens Dep’t into the statute. See Davis v. Mich. guilt followed determination of but 803, 813, Treasury, preceded expungement offense,” (When 1500, (1989) 103 L.Ed.2d 891 Con but had no of altering intention the long- gress judicially concept, “codifies a defined standing rule that convictions that are sub- express ... absent statement to the sequently expunged under either federal ... contrary, Congress adopt intended to longer or state law “no have effect for interpretation placed concept the on that 742 immigration” purposes. Id. at n. 23. courts.”); by Pons, the v. 434 Lorillard Congress’s to decision enact essentially 575, 581, 866, U.S. 98 55 40 S.Ct. L.Ed.2d majority verbatim the of Ozkok’sdefinition (1978) (the act presumption Congress conviction, excluding only while one part knowledge ed with particularly appro here, of that definition that bearing has no priate where “exhibited both a it particularly makes appropriate to read knowledge [incorporated] detailed 1101(a)(48)(A) § incorporating agen- the provisions judicial and their interpretation cy’s expunged treatment of convictions. willingness depart and a to from those Evidently, Congress approved the rule es- provisions regarded in as undesirable or by BIA in Manrique tablished the appropriate incorporation.”); Hing recognized in Ozkok. Holder, 1092, Sum v. 1099-1101 (9th Cir.2010) (Where Congress analysis uses An of the relevant statutes and BIA meanings history terms that settled in an independent justi- their reveals law, “Congress case incorporate means to excluding drug fication first-time minor terms.”). meaning the established these expunged offenses under law state from the definition “conviction” in previously acknowledged We have 1101(a)(48)(A). § Congress evidently ap- the 1996 amendment to the definition proved of long-standing principle the 1101(a)(48)(A) §in “conviction” “said noth- state-expunged posses- simple first-time ing expungement, about and could well be sion not carry convictions do adverse im- to interpreted establish when a con- consequences and, migration enacting viction determining occurred without what amendment, the 1996 had no intention of might be the effect of later expunge- disturbing it. INS, ment.” Murillo-Espinoza v. 261 (9th Cir.2001) (citing F.3d 774 Lu- to 741-42).

jan-Armendariz, 222 F.3d And, notably, failing statutory every ques- consistent with to reach this other circuit, majority relying only Lu- its equal does overrule tion and instead

712 correspondingly § 8 and is analysis, implicitly U.S.C. protection post-1996 interpreta- referenced the United States Sentenc- to the BIA’s defers “conviction,” Guidelines. Because “a criminal stat- which followed tion of 1101(a)(48)(A) any agency by § is not administered ute[] promulgation of courts,” See, is our Murillo-Espinoza, interpretation but e.g., 261 INA. independent responsibility. Crandon deference to the (according at 774 Chevron States, 152, 177, construction of the United 494 “permissible BIA’s statute”). (1990); L.Ed.2d 132 also de see [INA] Gonzales, Jesus Melendez amendments to After Cir.2007) (stating that no 1101(a)(48)(A), BIA pre- § reversed its interpreta- owed to the BIA’s deference is that the course and held 1996 defini- vious administer, tion of it does not statutes includes ex- tion of “conviction” convictions FFOA). including the punged under state rehabilitative statutes. many 23 I. & N. Dec. Court has decided Salazar-Regino, In re banc). (BIA 2002) (en concerning “aggravated cases the term fel Pursuant BIA, “conviction,” ony” which, like defined interpretation, since — 1011(a) in § in other and used 1326—without has refused follow circuits applying BIA and application deferring of FFOA treatment to the without circuit’s See, expunged e.g., framework. Cara first-time offenses Chevron -, (stating law. Id. at 235 that the BIA churi-Rosendo v. 560 U.S. (2010); ruling [Lujan- “decline[s] L.Ed.2d , — —, arising Nijhawan ] Armendariz to cases outside of v. 129 U.S. Holder Circuit”). 2294, (2009); jurisdiction Lopez 22 the of the Ninth S.Ct. 174 L.Ed.2d 47, Gonzales, 625, doing, implicitly rejected the BIA v. 166 so has 549 U.S. 127 S.Ct. (2006); statutory Ashcroft, for treating the rationale state L.Ed.2d 462 Leocal v. 377, expungements equally, and federal 543 125 L.Ed.2d 271 S.Ct. 160 (2004). here, only equal protection Similarly, instead relied on we must conduct holding interpretation our own appeals the statute interpretation within this circuit. need not defer to the BIA’s of “conviction.” Because construction not, however, need We defer to the consequences this term has for the admin interpretation BIA’s term “convic- law, indepen istration of criminal it 1101(a)(48)(A). § tion” as is used duty judiciary, dent of the and not the to interpretation Deference the BIA’s of a BIA, to the assign meaning. term a proper “statute which it administers” is U.S.A., if, in Relatedly, discharging under Chevron Inc. v. Re- even Natural Inc., 1101(a)(48)(A) Council, duty, that § sources 467 U.S. to find were Defense 837, 842, 104 ambiguous, application 81 L.Ed.2d 694 is its the crimi (1984). requires BIA’s nal law interpreta- Deference to the context us to “resolve alien, ambiguity favorably pursuant tion of the definition “conviction” as 1101(a)(48)(A), however, lenity §in principle applicable used is en- to the tirely inappropriate, respect gravity because that term is to the removal.” Retuta (9th v. F.3d purposes used 591 1189 Cir. 2010) Cardoza-Fonseca, law, but also in criminal law v. (citing context. INS 1101(a)(48)(A)’s 421, 449, § 94 L.Ed.2d Specifically, definition of U.S. Gonzales, (1987), conviction meaning controls the and Lara-Cazares (9th Cir.2005)). statute, illegal term in the The reentry federal majority entirely fails to consider how its

holding will to criminal laws. offers two purportedly ra-

tional bases for not extending FFOA treat- C. ment to aliens whose convictions have been expunged First, under state law. the ma- reveals, previous analysis As the an in- jority adopts the rationale by offered justification dependent statutory can res- Third Circuit in Acosta v. Ashcroft, 341 cue the state-expungements holding of (3d Cir.2003), Lujan-Armendañz progeny. Congress may have been unfamiliar with Nonetheless, properly decision was operation of state schemes that re- on the equal decided basis of its protec- semble the FFOA. could tion I analysis. reject the majority’s worried that criminal justice sys- equal protection analysis case, by tems, pressure under the by created Lujan-Armendariz. which it overrules heavy loads, case might permit danger- Lujan-Ar The rule we articulated in ous offenders to plead down simple mendariz derives from our holding Gar possession charges and take advantage INS, herding of those state schemes to escape what is Cir.1994). Garberding, “persons Under considered conviction under state law. who received the benefit of a state ex- rationale, however, This belied pungement subject law were not depor fact that the FFOA requires that the of- tation as long they could have received not, fender prior “has to the commission of they benefit of the if [FFOA] had been simple offense, possession] [a been convict- prosecuted under federal law.” Lujan- ed of violating a Federal or State law Armendariz, 222 F.3d at 738. Garberd relating to controlled substances.” ing’s equal protection analysis focused on 3607(a)(1). U.S.C. If Congress was wor- similarly-situated whether aliens could be ried that state justice schemes, criminal differently treated based on their conduct. by caseloads, overwhelmed heavy might “Garberding Id. ... establishes that aliens dangerous allow plead down, offenders to may differently not be treated based on they presumably recognized also that of- fortuity’ ‘mere that they happen to fenders simply plead could something have been prosecuted under state rather other than a violation of a controlled sub- law, than federal or under different state thereby stances law and achieve the same laws, as there is no rational basis for dis result. tinguishing among the groups.” affected Id. at Moreover, 748. simply Court has re- adopted applied held, that same principle cently in the context of determining after finding Congress’s that new defini what “aggravated constitutes an felony,” tion of “conviction” had not repealed the that immigration consequences of state FFOA’s first-time exception. offense Id. convictions must applied as if the of- at 742. applied equal protection We be fense had prosecuted been in federal court. Gonzales, cause “no rational basis exists for Lopez afford See 549 U.S. at 625; Carachuri-Rosendo, [FFOA] relief to an alien under federal S.Ct. expungement law while denying relief to at 2577. If Congress willing is to acknowl- identically situated aliens qualify edge who that state convictions have force in similar treatment expunge context, under state immigration the federal it seems ment laws.” Id. at 743 n. 24. wholly inconsistent to assume that Con- those meet this criteria are only aliens who expunge- treat state intended

gress Un- schemes. expungement in states with differently. ments majority, by the disparity created like 2. aliens in then, distinguishing between expungement schemes states rational basis purportedly The second expunge- that do not those states majority slightly more by the offered re- survives rational basis ment schemes have ex- not all states Because plausible. Congress’s neither view and undermines offers, schemes, pungement FFOA, nor states’ reha- intent under the reasonably could have conclud- “Congress schemes. bilitative that, in uniformi- strong in the interest ed any state ex- recognize ty, it would alien, any Second, any I from note that adopt piecemeal rather than pungements state, may have his first-time federal Nu- Maj. Op. (citing at 690 approach.” the FFOA and expunged offense under J., (Graber, F.3d at nez-Reyes, 602 as longer can no be considered that offense concurring)). case, removal. It is not a basis for therefore, however, affording expunge- rationale, also flawed. This treatment would render reasoning, ments FFOA First, majority’s Con- expunge- without state uniformity aliens from states interest gress’s hypothetical entirely ineligible for FFOA majority opinion as- ment schemes ways. both cuts treatment, those from states with interest in unifor- while Congress’s sumes that qualify would requires expungement context schemes mity in the Any may and all receive to the lowest common de- such treatment. leveling down ex- treatment for federal convictions excluding all state-ex- such nominator To the con- punged under the FFOA. convictions from FFOA treatment. punged then, uniformity treatment of state ex- trary, FFOA But the FFOA ensures its own aliens from expunged pungements that all offenses ensures providing to federal regarded not be states that offer alternatives under the Act will severely programs ... are not purpose.” expungement “for convictions 3607(b). they pre- were merely no reason to because punished There is U.S.C. an alternative. interest in unifor- sented with and took such Congress’s believe important more mity among the states is uniformity Congress’s

than interest drug offenders the treatment of first-time simply principled no reason There is expunged. convictions have been whose treat offenses sub- why Congress should differently from ject expungement to state Notably, aliens whose state convictions have offenses that would similarly are not situ- identical or lesser expunged have been had eligible for FFOA treatment to those whose states have no ex- been ated as federal crimes. they prosecuted been pungement place. schemes Aliens protection prohibit considerations expunged Equal were whose convictions in- similarly-situated unequal under- treatment expungement schemes have Garberding, 30 F.3d rehabilitation. The dividuals. See gone court-mandated identi- Aliens who have committed to ensure that those 1190. passed FFOA was ex- cal and have their convictions undergo who rehabili- offenses first-time offenders directly through the whether ultimately get punged, measures and their tative a state rehabilita- FFOA or as a result of charges dismissed or their convictions ex- scheme, similarly situated. Under The tion are are afforded a second chance. punged al Lujan-Armendariz, question protection is to any meaning whatso ways expunged been whether the offense ever outside the suspect context of classifi (9th Cir.2009) (Clif have been covered under the FFOA Id. at would cations.” ton, J., charged if as a crime. 222 F.3d at concurring); federal also see id. at 1215 (“[I]n (Thomas, J., n. And have been dissenting) we consistent order to be asking answering rational, consistent]”). that question. See the reason must Ramirez-Altamirano, now, 563 F.3d at 810. employing Until the rational basis test, similarly-situated To do otherwise would be to allow non- we treated first- process rights hinge drug citizens’ due to on time offenders equally. I see no jurisdictional stated happenstance. practice, As we reason to abandon particu Lujarir-Armendariz, larly “there is no ration when rational basis now offered basis for today al a federal statute that treats is no more or less true than it was adjudged of a persons guilty drug years ago offense eleven Lujan- when we decided harshly under state law than persons more Armendariz.

adjudged guilty the identical offense offers what it believes to under federal law.” Id. at 749. be some consolation to non-citizen first-

Lujan-Armendariz’s equal protection drug on, time offenders: from now “aliens analysis part was based the irration will fully be able to make a informed deci- ality treating differently aliens on sion plead based whether to or guilty to exercise fortuity” the “mere whether federal their rights, constitutional such as the prosecutor drug sends a case to the state trial right by jury.” Maj. to Op. at 693. it, prosecutor keep or chooses to vice or But it will be of little comfort to aliens 222 F.3d at 738 (citing charged versa. Paredes possession first-time offenses INS, -Urrestarazu that their decision plead go to trial Cir.1994)). equal Without the treatment will be rendered with full awareness of the Lujarir-Armendariz, afforded under this immigration consequences such a con- prosecutorial may unfettered discretion viction. Non-citizens will no longer be now be deter dispositively exercised able to avoid the consequence most drastic mine whether an individual’s first-time removal—-bypleading guilty. This all— drug yield extremely offense will harsh will further undermine state rehabilitative is, consequences; that wheth schemes because it will remove a tremen- any particular er defendant will benefit dous incentive first-time offenders from the unsettling, FFOA. This result is plead guilty. point out, As amicus say the least. in the change analysis cost-benefit directly eviscerates effectiveness of states’ re- Our precedent requires that ex- give that, FFOA, habilitative statutes like the immigra- tra deference to in the legal consequences aim to remove the of a context. v. Mukasey, tion Abebe minor, first-time drug offense for those (9th Cir.2009). 1203, 1206 But we cannot successfully complete offenders who their allow “rational review” to as a basis serve probationary requirements and undergo stamp rubber a hypothetical what Con- drug treatment. might gress have intended. “Justifications overruling one longstand- Finally, court’s expunge- notion that state precedents should be made programs given of sterner ment should be different place significant stuff.... rational We must some or less treatment than their counterparts directly bounds what survives rational basis re- federal at odds if the right equal principle “comity” view constitutional respect and Moreover, no com there is prudent. processes proceedings court for state why overrule Lu in oth reason we should pelling have embraced courts that federal Richter, in See, engaging first Harrington jan-Armendariz without e.g., er areas. 784-86, -, analysis. Such an thorough statutory 131 S.Ct. - U.S. (state (2011) in proceed never Congress court analysis reveals L.Ed.2d 624 through process” state-expunged first- the “central to exclude ings are tended ad claims should be from the dispositions habeas drug possession federal which time may not im court in judicated, and federal “conviction” definition state 1101(a)(48)(A) that “undercut requirements pose of the INA. integri preserve practices designed reasons, I would foregoing For all of tradition”). It is la case-law ty of the Nunez-Reyes’s petition for review grant that, courts while federal mentable convic- that his two misdemeanor and hold pro to state laws and deference extreme treatment. eligible are for FFOA tions they might where in contexts cedures bar, basis test sets a low While the rational the vindication of con frustrate serve to simply no indication there is federally-protected rights, stitutional deny FFOA treatment intended to in recognize programs state refuse to

we first-time minor state-expunged aliens with they might serve to where the context successfully under- drug offenses who have completely in a manner trigger the FFOA state-approved program re- gone a congressional intent. See consistent with fact, in sulted their rehabilitation. — Kindler, U.S. —, Beard v. to undermine majority’s opinion serves (“In (2009) 618-19, 175 L.Ed.2d intent. Unless and Congress’s evidenced comity con ... federalism and light of in a thor- willing engage until are we particularly ... it would seem cerns of “convic- ough analysis of the definition disregard state ... rules that strange to INA, should adhere to tion” under the we to those to which substantially are similar of stare decisis and demon- principle courts.”). full force in our own give particularly This is true strate restraint. may circuits Though some of our sister where, here, reexamining casting Congress little faith ascribe to unnecessary precedent is to de- aside our schemes, we should court rehabilitative ciding the case before us. Because Acosta, 341 F.3d at not feel so bound. Cf. ultimately reaches further than it to, than it digging deeper needs without D. to, ought I dissent. all can thing

There is one on which we clear, binding agree: “Reliance on the precedent strikes entirely prudent, par us as reasonable inaction, light Congress’s ticularly steady denial of certiora Court’s issue, raising ri in and our own cases (and, arguably, ex application consistent pansion) precedent a series Maj. more than a decade.” spanning cases n.6. To this list of reasons we Op. holding Lujan- can add one more: entirely itself is reasonable Armendariz

Case Details

Case Name: Nunez-Reyes v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 14, 2011

Citation: 646 F.3d 684

Docket Number: 05-74350

Court Abbreviation: 9th Cir.