Lead Opinion
Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge IKUTA; Dissent by Judge PREGERSON.
OPINION
Petitioner Flavio Nunez-Reyes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his application for cancellation of removal. We deny the petition. In the course of doing so, sitting as an en banc court, we overrule our equal protection holding in Lujan-Armendariz v. INS,
FACTUAL AND PROCEDURAL HISTORY
Petitioner entered the United States in 1992. In 2001, he was charged in state court with one felony count of possession of methamphetamine, in violation of California Health and Safety Code section 11377(a), and one misdemeanor count of being under the influence of methamphetamine, in violation of California Health and Safety Code section 11550(a). He pleaded guilty to both counts, but the state court eventually dismissed the charges under California Penal Code section 1210.1(e)(1), held unconstitutional in other part by Gardner v. Schwarzenegger,
In early 2002, the federal government issued a notice to appear, charging Petitioner with being removable. Petitioner conceded removability but applied for adjustment of status and cancellation of removal. The immigration judge (“IJ”) denied all forms of relief and ordered Petitioner removed. The IJ held that the state convictions rendered Petitioner ineligible for any form of relief even though the state court later had dismissed the convictions. The BIA affirmed the Id’s decision.
Petitioner timely petitioned for review. A three-judge panel granted the petition because of our rule, first announced in
We then granted rehearing en banc. Nunez-Reyes v. Holder,
STANDARD OF REVIEW
We review de novo the BIA’s determination “that a controlled substance conviction precludes immigration relief as a matter of law.” Ramirez-Altamirano,
DISCUSSION
A. We overrule Lujan-Armendariz.
Does a state-court conviction for a simple-possession drug crime, later expunged by the state court, nevertheless constitute a “conviction” for federal immigration purposes? History has provided an ever-changing answer to that question. See In re O-T- 4 I. & N. Dec. 265, 268 (B.I.A.1951) (“yes”); In re A-F-, 8 I. & N. Dec. 429, 445 (Att’y Gen.1959) (“no”); In re Werk, 16 I. & N. Dec. 234, 235-36 (B.I.A.1977) (“yes, in some circumstances”); Garberding v. INS,
In Lujan-Armendariz, we addressed the effect of the new definition on a petitioner’s expunged state conviction for a simple-possession drug crime. We began by considering whether a federal conviction, later expunged under the Federal First Offender Act (“FFOA”), nevertheless constitutes a “conviction” for immigration purposes. Importantly, the FFOA mandates that a successfully expunged federal conviction “shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose.” 18 U.S.C. § 3607(b) (emphases added). We thoroughly examined the apparent conflict between the quoted text of the FFOA and the new definition of “conviction.” Lujan-Armendariz,
But we relegated to a footnote a very important additional step in the analysis: Did Congress have a rational basis for distinguishing between expunged federal
Since our decision in Lujan-Armendariz, the BIA and every sister circuit to have addressed the issue — eight in total — have rejected our holding. In re Salazar-Regino, 23 I. & N. Dec. 223, 235 (B.I.A.2002) (en banc); Wellington v. Holder,
After considering the analysis set forth in Lujam-Armendariz ..., we decline to apply the ruling in that decision to cases arising outside of the jurisdiction of the Ninth Circuit. We therefore conclude that, except in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under [the immigration laws].
In re Salazar-Regino, 23 I. & N. Dec. at 235.
Having reconsidered the issue, we now agree with the BIA and our sister circuits. A very relaxed form of rational basis review applies to this inquiry: “[F]ederal classifications based on alienage are subject to relaxed scrutiny. Federal classifications distinguishing among groups of aliens thus are valid unless wholly irrational.” Garberding,
Familiar with the operation of the federal criminal justice system, Congress could have thought that aliens whose federal charges are dismissed under the FFOA are unlikely to present a substantial threat of committing subsequent serious crimes. By contrast, Congress may have been unfamiliar with the operation of state schemes that resemble the FFOA. Congress could have worried that state criminal justice systems, under the pressure created by heavy case loads, might permit dangerous offenders to plead down to simple possession charges and take advantage of those state schemes to escape what is consid*690 ered a conviction under state law. Particularly in view of Congress’s power in immigration matters, it seems plain that rational-basis review is satisfied here.
Acosta,
Not all states permit expungement. A person convicted in such a state would be ineligible for relief under the immigration laws, whereas a person convicted in a different state would be eligible. Congress reasonably could have concluded that, in the strong interest of uniformity, it would not recognize any state expungements rather than adopt a piecemeal approach.
Nunez-Reyes,
In conclusion, we hold that the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA. We therefore overrule Lujan-Armendariz’s holding to the contrary. By necessity, we also overrule the same holding in those cases that, bound by stare decisis, followed the rule we announced in Lujan-Armendariz. Those cases include Romero v. Holder,
B. We will apply our decision prospectively only.
Having decided to overrule Lujan-Armendariz, we next consider whether to apply the new rule of law only prospectively. The default principle is that a court’s decisions apply retroactively to all cases still pending before the courts. Federal courts may depart from that default principle only in certain circumstances, as outlined in Chevron Oil Co. v. Huson,
1. The Chevron Oil test applies.
The circumstances that justify a deviation from the normal rule of retroactivity have a long jurisprudential history. In the criminal context, the Supreme Court originally held that prospective application was appropriate in some circumstances. Link-letter v. Walker,
In the civil context, the Supreme Court originally announced a three-factor test of general applicability in Chevron Oil. Under the Chevron Oil test, equitable considerations in some circumstances warrant prospective application of a new rule of law. But the Court has limited, in two relevant ways, the circumstances in which the Chevron Oil test applies.
First, a court announcing a new rule of law must decide between pure prospectivity and full retroactivity; what Justice Souter termed “selective prospectivity,” in which courts weighed the equities on a case-by-case basis, is foreclosed.
Second, in cases in which the new rule of law strips the courts of jurisdiction, the courts must apply that new rule of law retroactively. See United States ex rel. Haight v. Catholic Healthcare W.,
We glean from this jurisprudential history the following rule of law: We apply the three-pronged test outlined in Chevron Oil (1) in a civil case; (2) when we announce a new rule of law, as distinct from applying a new rule that we or the Supreme Court previously announced; (3) and when the new rule does not concern our jurisdiction. See, e.g., George v. Camacho,
Like some of our sister circuits, we acknowledge that the Supreme Court’s reasoning in cases such as Harper could support a conclusion that the Chevron Oil test no longer applies in any circumstances: all new rules of law must be applied retroactively. See, e.g., Kolkevich v. Att’y Gen. of U.S.,
In this civil case, we announce a new rule of law that does not concern our jurisdiction. The Chevron Oil test applies.
2. Balancing the Chevron Oil factors, we will apply the new rule only prospectively.
The three Chevron Oil factors are: (1) whether the decision “establish[es] a new principle of law”; (2) “whether retrospective operation will further or retard [the rule’s] operation” in light of its history, purpose, and effect; and (3) whether our decision “could produce substantial inequitable results if applied retroactively.”
Further, amici assert — and the government does not dispute — that, because of the clarity and consistent application of Lujavr-Armendariz for more than a decade, aliens and their counsel have acted in reliance on Lujan-Armendariz. According to amici, aliens often have pleaded guilty to minor drug crimes and have completed drug treatment in order to have their convictions expunged — all in reliance on Lujan-Armendariz’s promise that doing so would spare them from adverse immigration consequences.
“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.” INS v. St. Cyr,
Our decision in Lujan-Armendariz provided clear assurance that expungement after a plea of guilty to the state crime of simple drug possession would insulate the alien from adverse immigration consequences. “Even if the defendant were not initially aware of [Lujan-Armendariz ], competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the [decision’s] importance.” St. Cyr.,
After our decision today, alien defendants will know that an expunged state-law conviction for simple possession mil have adverse immigration consequences.
For those aliens who relied on Lujan-Armendariz, however, “[t]he potential for unfairness in the retroactive application” of today’s decision “is significant and manifest.” St. Cyr,
For similar reasons, we conclude that the second Chevron Oil factor is met: In light of the rule’s history, purpose, and effect, retroactive application will not further the rule’s operation.
But Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime; Congress intended such results only for those who were duly convicted, with all the constitutional protections of our criminal justice system. Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights. As discussed above, many alien defendants fell into neither category. Instead, they pleaded guilty and waived their constitutional rights with a wholly uninformed understanding of the consequences of their plea. Contrary to their understanding that there would be no immigration consequences, the actual consequence is the severe penalty of removal. Nothing in the statute or its history, purpose, or effect suggests that Congress intended adverse immigration consequences for those whose waiver of constitutional rights turned out to be so ill-informed. Indeed, the Supreme Court has instructed that such a gross misunderstanding of the immigration consequences of a plea, when caused by incompetent counsel, rises to the level of a constitutional violation. Padilla,
Weighing the Chevron Oil factors, we hold that our decision today will apply only prospectively. Cf. Glazner,
Because our decision applies only prospectively, we apply the rule announced in Lujan-Armendariz to the petition for review in this case. In Lujan-Armendariz, we held that an expunged conviction for simple possession did not constitute a “conviction” for immigration purposes. In later cases, we held that an expunged conviction for a “lesser offense” to simple possession also did not constitute a “conviction” for immigration purposes. Ramirez-Altamirano,
Here, however, Petitioner was convicted of being under the influence of methamphetamine. Being under the influence is not a lesser crime than simple possession. Although we have held that possession of paraphernalia is a lesser crime than possession of a drug itself, at least where the defendant pleaded down from an original charge of simple possession, Cardenas-Uriarte,
Petition DENIED.
Notes
Chief Judge Kozinski and Judges Schroeder, Thomas, Wardlaw, and M. Smith join all Parts of this Opinion. Judges O’Scannlain, Callahan, and Ikuta join Part A only. Judge B. Fletcher joins Part B only.
. The full definition states:
The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A).
. We address here only our holding in Lujan-Armendariz that the constitutional guarantee of equal protection required Congress to treat expunged federal convictions and expunged state convictions the same way. As we did in Lujan-Armendariz, we assume, without deciding, that the statutory term “conviction” includes expunged state convictions. Because this case does not require resolution of that issue, we do not reach it.
. We do not address, and do not overrule, any other holding of Lujan-Armendariz or its progeny, other than Rice v. Holder,
. To the extent that our decision in George contravenes today’s holding by applying Chevron Oil to circumstances concerning our jurisdiction, we recognize that subsequent Supreme Court decisions overruled it. Haight,
. Judge Ikuta asserts that, because St. Cyr arose in a different context, all the Supreme Court’s statements in that opinion are "inapposite” here. Partial dissent at 702 n. 7. As an initial matter, we quote from a wide range of cases arising in many different contexts. For instance, in the next sentence in text, we quote from Padilla v. Kentucky, — U.S. —,
. We recognize, of course, that nothing is ever guaranteed. There was always some chance, for instance, that Congress would amend the law and apply it ■ retroactively. Similarly, there was some chance that an alien residing in the Ninth Circuit would move and be issued a notice to appear in a different jurisdiction, where Lujan-Armendariz does not apply. At oral argument, the government urged us to conclude that any reliance on Lujan-Armendariz therefore was only speculative. We disagree; indeed, it is the government’s argument that contains speculation. Reliance on the clear, binding precedent of Lujan-Armendariz strikes us as entirely reasonable and prudent, particularly in light of Congress' inaction, the Supreme Court's steady denial of certiorari in cases raising this issue, and our own consistent application (and, arguably, expansion) of the precedent in a series of cases spanning more than a decade. Moreover, the Supreme Court has rejected essentially the same argument because "[tjhere is a clear difference, for the purposes of [statutory] retroactivity analysis, between facing possible deportation and facing certain deportation.” St. Cyr,
. Judge Ikuta argues that, if we are correct about the Chevron Oil factors concerning Lujan-Armendariz, then we also must overrule Rice prospectively only. Partial dissent at 701 & n.6. We disagree. Unlike with respect to Lujan-Armendariz, the Chevron Oil factors do not support a finding of prospectivity with respect to Rice. The parties and amici have presented no evidence that litigants have relied on our very recent decision in Rice. See Chevron Oil,
Dissenting Opinion
with whom
In overruling the equal protection holding of Lujan-Armendariz v. INS,
I
In Harper v. Virginia Department of Taxation, the Supreme Court’s most recent opinion on the prospective application of judicial decisions, the Court expressed grave concerns about whether prospective decisionmaking is ever permissible.
The Supreme Court began experimenting with prospective decisionmaking during the 1960s. In Linkletter v. Walker, the Court created a doctrine under which courts could deny retroactive effect to a newly announced rule of criminal procedure.
The Court’s return to a more traditional view of judicial power began with United States v. Johnson. Expressing dissatisfaction with its prior non-retroactivity jurisprudence and declaring that “[rjetroactivity must be rethought,” Johnson,
It is true that Griffith left the civil nonretroactivity doctrine of Chevron Oil untouched. See id. at 322 n. 8,
The Justices’ misgivings regarding nonretroactivity in the civil context found expression in the Court’s opinion in Harper. justice Thomas, in his opinion for the Qourj. S|;ate¿.
Beam controls this case, and we accordingly adopt a rule that fairly reflects the position of a majority of Justices in*698 Beam: When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.
Harper,
Although the reasons for severely limiting non-retroactive decisionmaking are clearly set out in Harper, the Court did not expressly overrule Chevron Oil.
Chevron Oil sets forth three factors we must consider when determining whether a decision should be applied prospectively only. When narrowly construed, as required by Harper, these factors do not clearly support applying our decision overruling Lmjan-Armendariz non-retroactively; indeed, one factor weighs heavily against a prospective-only application. In addition, both practical and jurisprudential considerations strongly encourage compliance with the Supreme Court’s preferred approach of full retroactivity.
A
The first factor in the Chevron Oil test is whether “the decision to be applied non-retroactively ... establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Chevron Oil,
B
The second factor requires us to “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Id. at 106-07,
As the majority acknowledges, Congress’s enactment of a broad definition of “conviction” in IIRIRA, see 8 U.S.C.
The majority’s contrary conclusion is based on its “assumption” that Congress could not have intended to apply the statute to aliens who may have waived their constitutional rights in reliance on our erroneous precedent. See Maj. op. at 694. This assumption, of course, arises solely from the majority’s belief that Congress would balance the equities the same way it does. But we must discern Congress’s intent from the language of the statutes it enacts, not from our own perspectives on policy. See United States v. Gonzales,
C
The third factor instructs us to inquire whether our decision “could produce substantial inequitable results if applied retroactively.” Chevron Oil,
The majority exacerbates this inequity by choosing to overrule Rice v. Holder,
D
In sum, because courts generally “ha[ve] no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently,” Harper,
Ill
Where the factors of Chevron Oil do not overwhelmingly support the disfavored approach of non-retroactive application, we should instead give effect to the “general rule of retrospective effect for ... constitutional decisions” that the Supreme Court reaffirmed in Harper. Id. at 94,
Practical concerns are crucial in the area of immigration law, because regulating immigration is the prerogative of the legislative branch. See Garcia-Ramirez v. Gonzales,
The Supreme Court has emphasized the substantial jurisprudential concerns that weigh against non-retroactivity; in fact, the Justices seem to speak directly against the approach adopted by the majority. Justice Souter, joined by Justice Stevens, asserted in Beam that “the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case.” Beam,
Instead of straining to make the law fit its notion of good policy, the majority should have followed the advice of Harper and reserved prospective decisionmaking for the rare case where all three Chevron Oil factors clearly point toward doing so. Because the majority has abjured this wiser course, I respectfully dissent.
. In an opinion announcing the judgment of the Court, Justice Souter (joined by Justice Stevens) commented: “Griffith cannot be confined to the criminal law. Its equality principle, that similarly situated litigants should be treated the same, carries comparable force in the civil context.” Beam,
Nor, finally, are litigants to be distinguished for choice-of-law purposes on the particular equities of their claims to prospectivity: whether they actually relied on the old rule and how they would suffer from retroactive application of the new. It is simply in the nature of precedent, as a necessary component of any system that aspires to fairness and equality, that the substantive law will not shift and spring on such a basis. To this extent, our decision here does limit the possible applications of the Chevron Oil analysis, however irrelevant Chevron Oil may otherwise be to this case. Because the rejection of modified prospectivity precludes retroactive application of a new rule to some litigants when it is not applied to others, the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case.
Id. at 543,
I agree that failure to apply a newly declared constitutional rule to cases pending on direct review violates basic norms of constitutional adjudication. It seems to me that our decision in Griffith makes clear that this Court's function in articulating new rules of decision must comport with its duty to decide only "Cases” and "Controversies.” Unlike a legislature, we do not promulgate new rules to "be applied prospectively only,” as the dissent, and perhaps Justice Souter, would have it. The nature of judicial review constrains us to consider the case that is actually before us, and, if it requires us to announce a new rule, to do so in the context of the case and apply it to the parties who brought us the case to decide. To do otherwise is to warp the role that we, as judges, play in a Government of limited powers.
Id. at 547,
I think, "[t]he judicial Power of the United States” conferred upon this Court and such inferior courts as Congress may establish must be deemed to be the judicial power as understood by our common-law tradition. That is the power "to say what the law is,” not the power to change it. I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were "finding” it — discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. Of course this mode of action poses "difficulties of a ... practical sort” when courts decide to overrule prior precedent. But those difficulties are one of the understood checks upon judicial law-making; to eliminate them is to render courts substantially more free to "make new law,” and thus to alter in a fundamental way the assigned balance of responsibility and power among the three branches.
Id. at 549,
. Whether the Court may have implicitly overruled Chevron Oil has been the subject of some debate. See Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 Harv. J.L. & Pub. Pol'y 811, 814 (Summer 2003) (reviewing the Supreme Court's opinions and concluding that the Court has “reverted to a firm rule of retroactive application ... in the civil arena”). Such a conclusion finds support in Landgraf v. USI Film Products, in which the Court stated that “[wjhile it was accurate in 1974 to say that a new rule announced in a judicial decision was only presumptively applicable to pending cases, we have since established a firm rule of retroactivity.”
. Another restriction on non-retroactivity, not at issue here, is that a new rule of law must always be applied retroactively where it concerns our jurisdiction. See United States ex rel. Haight v. Catholic Healthcare W.,
. Our sister circuits have consistently rejected our position. See Wellington v. Holder,
. This factor was adopted from Linkletter, which considered whether the exclusionary rule established by Mapp v. Ohio,
. The majority gives two explanations for its inconsistent treatment of Rice, neither of which is persuasive. First, the majority asserts that Rice was more wrongly decided than Ramirez-Altamirano v. Holder,
Second, the majority notes that "[t]he parties and amici have presented no evidence that litigants have relied on our very recent decision in Rice." Maj. op. at 695 n. 7. This purported distinction of Rice is also unpersuasive: the parties and amici provided as much "evidence” of reliance on Rice as they did of reliance on any of the other cases. In a word: none. Rather, the "evidence” of reliance cited by the parties and amici amounted to little more than assertions that the defense bar knew of our prior case law and so informed their clients. Of course, that case law included not only Lujan-Armendariz, but also its progeny. See, e.g., Brief for Drug Policy Alliance et al. as Amici Curiae Supporting Petitioner at 6 n.4, 9, Nunez-Reyes v. Holder, No. 05-74350 (9th Cir. Oct. 29, 2010) (explaining that “established criminal defense practice in states within the Ninth Circuit” is based on "the Lujan-Armendariz line of decisions,” which includes Lujan-Armendariz and eight other decisions).
. In its discussion of Chevron Oil’s third factor, the majority repeatedly cites to and quotes from INS v. St. Cyr,
. A further explanation of the benefits of a firm rule of retroactivity is set forth in Shannon, supra note 2. Professor Shannon concludes that a firm rule of retroactivity: (1) "is more in accord with the nature of the adjudicative function than alternatives”; (2) "is consistent with traditional understandings of the distinction between holding and dicta”; (3) “is ... consistent with traditional understandings of the doctrine of stare decisis”; and (4) “is superior to prospectivity-based approaches because it better furthers private ordering, fair and efficient adjudication, and public confidence in the judiciary.” Id. at 836-37.
Dissenting Opinion
with whom
Lujar-Armendariz v. INS,
To make matters worse, the majority denies the petition for review in this case even though it decides to apply its new rule denying state offenders FFOA relief for state-expunged first-time drug convictions prospectively only. The result is that the petitioner will be separated from his citizen wife and two American-born children because of a minor drug conviction — one that a California state judge expunged because the petitioner successfully completed a state rehabilitation program. Such a result is unjust. The majority compounds that injustice by ensuring that thousands of minor drug offenders will suffer the same cruel separation from their families in the days ahead.
America is a second-chance nation. Each year, thousands of people, some of them immigrants to this country, are caught up in our justice system by making the mistake of committing a minor drug offense. But Congress through the FFOA has seen fit to give those folks who commit the most minor drug offenses an opportunity — a second chance — to redeem themselves through rehabilitation, and thereafter walk a straight and narrow path to become productive members of society and a credit to their families. For some immigrants, including thousands of lawfully-admitted residents, this second chance also means being able to stay in the country with their families intact. The majority’s abandonment of our precedent today means that first-time minor drug offenders within our circuit who have fully complied with their state’s stringent rehabilitation programs, and who have had their minor convictions expunged by a state court judge, nonetheless will be subject to removal from the United States. For them, there will be no second chance. Thousands of families will be rendered asunder, and tens of thousands of American-born children will suffer the consequences. This harsh result, I submit, is repugnant to the values of kindness, compassion, and fundamental fairness.
I therefore strongly dissent.
A.
This dissenting opinion starts out where the majority should have, by examining the Board of Immigration Appeal’s (“BIA”) decision in the case now before us. Analyzing Nunez-Reyes’s petition for review, I adhere to Lujar-Armendariz and its progeny. Because the majority walks away from the Lujan-Armendariz rule only prospectively,
Flavio Nunez-Reyes (“NunezAEteyes”) is a thirty-five-year-old national of Mexico who entered the United States without
In 2001, Nunez-Reyes was charged with one felony count of possession of methamphetamine, in violation of California Health & Safety Code § 11377(a). This felony charge was later reduced to a misdemean- or. Nunez-Reyes was also charged, under the same complaint, with using or being under the influence of methamphetamine, in violation of California Health & Safety Code § 11550(a). The charges against Nunez-Reyes were ultimately dismissed pursuant to California’s expungement statute for drug possession offenses, which states that the state court “shall ... set aside [the conviction] and ... dismiss the indictment” if the defendant successfully completes probation and that “both the arrest and the conviction shall be deemed never to have occurred.” CaLPenal Code § 1210.1(e)(1).
In early 2002, the federal government charged Nunez-Reyes under 8 U.S.C. § 1182(a)(6)(A)(i) as a removable alien. Nunez-Reyes conceded removability but applied for adjustment of status, cancellation of removal, and, alternatively, voluntary departure. The Immigration Judge (“U”) held that the state conviction rendered Nunez-Reyes ineligible for any form of relief. The BIA affirmed the IJ’s decision and held that Nunez-Reyes could not avail himself of relief under the FFOA because his conviction for using or being under the influence of methamphetamine was “not one for which federal first offender treatment would be available.” The BIA reasoned that the FFOA applies only to simple possession offenses, and that being under the influence of methamphetamine is not a simple possession offense. While recognizing that our court has applied FFOA treatment to convictions for “lesser offenses,” the BIA held that Nunez-Reyes had not pleaded down from a charge of simple possession and that being under the influence of methamphetamine is not a “lesser offense” than that of simple possession.
The matter came before our court on appeal. Under de novo review, we faithfully applied our precedent, which holds that state-expunged first-time drug possession dispositions that would be eligible for FFOA treatment are not convictions for purposes of the immigration laws. Nunez-Reyes v. Holder,
an alien cannot be deemed “convicted” for immigration purposes if he can demonstrate that (1) the conviction was his first offense; (2) he had not previously been accorded first offender treatment; (3) his conviction was for possession of drugs, or an equivalent or lesser charge such as possession of drug paraphernalia ...; and (4) he received relief under a state rehabilitative statute.
Ramirez-Altamirano,
Importantly, the panel relied on our court’s recent decision in Rice v. Holder,
In Rice, we granted the petition for review and held that “persons convicted of using or being under the influence of a controlled substance, where that offense is less serious than simple drug possession, are eligible for the same immigration treatment as those convicted of drug possession under the FFOA.” Id. at 957. Following the precedent set forth in Cardenas-Uriarte,
As Judge Graber’s concurrence to the panel opinion correctly points out, Rice “answered the legal questions raised in [Nunez-Reyes’s] case, and no factual distinction exists.” Nunez-Reyes,
Yet, Judge Graber’s en banc majority opinion now holds that Nunez-Reyes’s petition for review should be denied. It does
The majority’s reasoning is flawed. “Our review is limited to the actual grounds relied upon by the BIA.” Ramirez-Altamirano v. Holder,
However, “[u]nder these circumstances, concluding that [using or being under the influence of a controlled substance] is not included in the First Offender Act would frustrate congressional intent and lead to an absurd result.” Cardenas-Uriarte,
Nor does the distinction between simple possession and using or being under the influence of drugs make sense under these circumstances. Congress criminalized the possession of drugs, at least in part, because it did not want people to use drugs. Thus, given the underlying purpose of the FFOA, the FFOA’s rehabilitative scheme logically applies to protect first time drug users, along with first time drug possessors, “against the harsh consequences that
By way of analogy, we have previously held that 8 U.S.C. § 1227(a)(2)(B)(i) — an exception to the automatic removability of aliens convicted of “a single offense involving possession for one’s own use of 30 grams or less of marijuana” — implicitly applies to both possession and actual use of marijuana. See Medina,
Moreover, had Nunez-Reyes been prosecuted by the federal government rather than by the State of California, he would have been charged only with simple possession of methamphetamine because, as mentioned previously, there is no federal criminal statute prohibiting using or being under the influence of a controlled substance. See 21 U.S.C. §§ 841-865. As we noted in Rice, “[a]s with possession of drug paraphernalia, ‘Congress would never have considered including’ under the FFOA the offense of using or being under the influence of a controlled substance, because no federal statute covers that crime.” Rice,
To support its position, the majority claims that in Cardenas-Uriarte,
It is difficult to square the majority’s prospective-only application of the new rule it sets out today with the denial of
B.
The majority’s review of the BIA’s opinion flawed. Additionally, it remains unclear why the majority opinion even reaches the issue of Lujanr-Armendariz’s viability. The BIA, in Nunez-Reyes’s case, distinguished Lujan-Armendariz to the majority’s satisfaction, but, puzzlingly, the opinion devotes the bulk of its efforts to overruling Lujan-Armendariz. Because we must limit our review to grounds actually discussed by the BIA, this ruling is out of bounds and entirely improper. Pascua v. Holder,
Moreover, the majority overrules Lujan-Armendariz on constitutional grounds without addressing the independent statutory justification, on which Lujanr-Armendariz expressly relied, for excluding state-expunged dispositions from the definition of “conviction.”
1.
In Lujan-Armendariz, based in part on an equal protection analysis, we held that “persons whose offenses would qualify for treatment under the [FFOA] but who are convicted and have their convictions expunged under state laws may not be removed on account of those offenses.”
Given the FFOA’s directive that dispositions eligible for FFOA relief “shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose,” 18 U.S.C. § 3607(b) (emphases added), we must give meaning to the statute within the immigration context. As both the majority and the Supreme Court recognize, “deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Maj. Op. at 693 (citing Padilla v. Kentucky, — U.S. —,
2.
Keeping these principles in mind, even if the equal protection analysis set forth in Lujaiu-Armendariz is abandoned, it does not follow that state-expunged first-time drug offense convictions are ineligible for FFOA treatment. In Lujan-Armendariz, we did not consider what effect the 1996 amendment to the term “conviction,” promulgated in 8 U.S.C. § 1101(a)(48)(A), had on state expungements specifically. Instead, we held that the 1996 amendment did not repeal the FFOA and we then simply extended this conclusion to state expungements on the basis of equal protection.
Congress’s 1996 amendment to the term “conviction” suggests that it had no intention of altering the BIA’s decisions to include state- and federally-expunged convictions from that term. The majority, in leaping to the conclusion that equal protection is not violated because Congress could have made a decision’ to treat similarly-situated aliens differently under rational basis review, declines to engage in any analysis, through statutory interpretation or otherwise, of whether Congress actually intended to do so. The majority simply assumes that “Congress intended that convictions for state-law simple possession have adverse immigration consequences,” Maj. Op. at 694, but fails to explain from where it divines such congressional intent. We should not prematurely review Congress’s purported distinction between state and federal expungement under a cursory form of rational basis review without first looking at the relevant statutes to determine whether Congress actually intended for such a distinction to exist.
In 1996, Congress addressed the meaning of the term “conviction” by enacting the following definition:
The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A).
The legislative history behind the 1996 amendment to the definition of “conviction” fully supports the conclusion that state-expunged first-time drug possession offenses are not “convictions” under § 1101(a)(48)(A) of the INA.
We have previously acknowledged that the 1996 amendment to the definition of “conviction” in § 1101(a)(48)(A) “said nothing about expungement, and could well be interpreted to establish only when a conviction occurred without determining what might be the effect of a later expungement.” Murillo-Espinoza v. INS,
Thus, in enacting the 1996 amendment, “it appears that Congress was concerned primarily ... with the question whether aliens could be deported during the period that followed a determination of guilt but preceded the expungement of the offense,” but had no intention of altering the longstanding rule that convictions that are subsequently expunged under either federal or state law “no longer have any effect for immigration” purposes. Id. at 742 n. 23. Congress’s decision to enact essentially verbatim the majority of Ozkok’s definition of conviction, while excluding only one part of that definition that has no bearing here, makes it particularly appropriate to read § 1101(a)(48)(A) as incorporating the agency’s treatment of expunged convictions. Evidently, Congress approved the rule established by the BIA in Manrique and recognized in Ozkok.
An analysis of the relevant statutes and their history reveals an independent justification for excluding first-time minor drug offenses expunged under state law from the definition of “conviction” in § 1101(a)(48)(A). Congress evidently approved of the long-standing principle that state-expunged first-time simple possession convictions do not carry adverse immigration consequences and, in enacting the 1996 amendment, had no intention of disturbing it.
3.
In failing to reach this statutory question and instead relying only on its equal
After the 1996 amendments to § 1101(a)(48)(A), the BIA reversed its previous course and held that the 1996 definition of “conviction” includes convictions expunged under state rehabilitative statutes. In re Salazar-Regino, 23 I. & N. Dec. 223, 235 (BIA 2002) (en banc). Pursuant to this interpretation, the BIA, since 2002, has refused to follow in other circuits our circuit’s application of FFOA treatment to first-time drug offenses expunged under state law. Id. at 235 (stating that the BIA “decline[s] to apply the ruling in [Lujan-Armendariz ] to cases arising outside of the jurisdiction of the Ninth Circuit”). In so doing, the BIA has implicitly rejected the statutory rationale for treating state and federal expungements equally, and has instead relied only on the equal protection holding of Lujan-Armendariz on appeals within this circuit.
We need not, however, defer to the BIA’s interpretation of the term “conviction” as it is used in § 1101(a)(48)(A). Deference to the BIA’s interpretation of a “statute which it administers” is proper under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
The Supreme Court has decided many cases concerning the term “aggravated felony” — which, like “conviction,” is defined in § 1011(a) and used in § 1326 — without deferring to the BIA and without applying the Chevron framework. See, e.g., Carachuri-Rosendo v. Holder, 560 U.S. -,
Relatedly, even if, in discharging our duty, we were to find that § 1101(a)(48)(A) is ambiguous, its application in the criminal law context requires us to “resolve the ambiguity favorably to the alien, pursuant to the principle of lenity applicable with respect to the gravity of removal.” Retuta v. Holder,
C.
As the previous analysis reveals, an independent statutory justification can rescue the state-expungements holding of Lujan-Armendañz and its progeny. Nonetheless, that decision was properly decided on the basis of its equal protection analysis. I reject the majority’s equal protection analysis in this case, by which it overrules Lujan-Armendariz.
The rule we articulated in Lujan-Armendariz derives from our holding in Garherding v. INS,
1.
The majority offers two purportedly rational bases for not extending FFOA treatment to aliens whose convictions have been expunged under state law. First, the majority adopts the rationale offered by the Third Circuit in Acosta v. Ashcroft,
Congress may have been unfamiliar with the operation of state schemes that resemble the FFOA. Congress could have worried that state criminal justice systems, under the pressure created by heavy case loads, might permit dangerous offenders to plead down to simple possession charges and take advantage of those state schemes to escape what is considered a conviction under state law.
This rationale, however, is belied by the fact that the FFOA requires that the offender “has not, prior to the commission of [a simple possession] offense, been convicted of violating a Federal or State law relating to controlled substances.” 18 U.S.C. § 3607(a)(1). If Congress was worried that state criminal justice schemes, overwhelmed by heavy caseloads, might allow dangerous offenders to plead down, they presumably also recognized that offenders could simply plead to something other than a violation of a controlled substances law and thereby achieve the same result.
Moreover, the Supreme Court has recently held, in the context of determining what constitutes an “aggravated felony,” that the immigration consequences of state convictions must be applied as if the offense had been prosecuted in federal court. See Lopez v. Gonzales,
2.
The second purportedly rational basis offered by the majority is slightly more plausible. Because not all states have ex-pungement schemes, the majority offers, “Congress reasonably could have concluded that, in the strong interest in uniformity, it would not recognize any state ex-pungements rather than adopt a piecemeal approach.” Maj. Op. at 690 (citing Nunez-Reyes,
This rationale, however, is also flawed. First, under the majority’s reasoning, Congress’s hypothetical interest in uniformity cuts both ways. The majority opinion assumes that Congress’s interest in uniformity in the immigration context requires leveling down to the lowest common denominator and excluding all state-expunged convictions from FFOA treatment. But the FFOA ensures its own uniformity by providing that all offenses expunged under the Act will not be regarded as convictions “for any ... purpose.” 18 U.S.C. § 3607(b). There is no reason to believe that Congress’s interest in uniformity among the states is more important than Congress’s interest in uniformity in the treatment of first-time drug offenders whose convictions have been expunged.
Notably, aliens whose state convictions have been expunged are not similarly situated to those whose states have no ex-pungement schemes in place. Aliens whose convictions were expunged under state expungement schemes have undergone court-mandated rehabilitation. The FFOA was passed to ensure that those first-time offenders who undergo rehabilitative measures and ultimately get their charges dismissed or their convictions expunged are afforded a second chance. The only aliens who meet this criteria are those in states with expungement schemes. Unlike the disparity created by the majority, then, distinguishing between aliens in states with expungement schemes and those in states that do not have expungement schemes survives rational basis review and undermines neither Congress’s intent under the FFOA, nor states’ rehabilitative schemes.
Second, I note that any alien, from any state, may have his first-time federal drug offense expunged under the FFOA and that offense can no longer be considered as a basis for removal. It is not the case, therefore, that affording state expungements FFOA treatment would render aliens from states without state expungement schemes entirely ineligible for FFOA treatment, while those from states with expungement schemes would qualify for such treatment. Any and all may receive such treatment for federal convictions expunged under the FFOA. To the contrary, then, FFOA treatment of state ex-pungements ensures that aliens from states that offer alternatives to federal expungement programs are not severely punished merely because they were presented with and took such an alternative.
3.
There is simply no principled reason why Congress should treat offenses subject to state expungement differently from identical or lesser offenses that would have been eligible for FFOA treatment had they been prosecuted as federal crimes. Equal protection considerations prohibit unequal treatment of similarly-situated individuals. See Garberding,
Lujan-Armendariz’s equal protection analysis was based in part on the irrationality of treating aliens differently based on the “mere fortuity” whether a federal prosecutor sends a drug case to the state prosecutor or chooses to keep it, or vice versa.
Our precedent requires that we give extra deference to Congress in the immigration context. Abebe v. Mukasey,
The majority offers what it believes to be some consolation to non-citizen first-time drug offenders: from now on, “aliens will be able to make a fully informed decision whether to plead guilty or to exercise their constitutional rights, such as the right to trial by jury.” Maj. Op. at 693. But it will be of little comfort to aliens charged with first-time possession offenses that their decision to plead or go to trial will be rendered with full awareness of the immigration consequences of such a conviction. Non-citizens will no longer be able to avoid the most drastic consequence of all — removal—-by pleading guilty. This will further undermine state rehabilitative schemes because it will remove a tremendous incentive for first-time drug offenders to plead guilty. As amicus point out, this change in the cost-benefit analysis directly eviscerates the effectiveness of states’ rehabilitative statutes that, like the FFOA, aim to remove the legal consequences of a minor, first-time drug offense for those offenders who successfully complete their probationary requirements and undergo drug treatment.
Finally, the notion that state expungement programs should be given different or less significant treatment than their federal counterparts is directly at odds with the principle of “comity” and respect
D.
There is one thing on which we all can agree: “Reliance on the clear, binding precedent of Lujan-Armendariz strikes us as entirely reasonable and prudent, particularly in light of Congress’s inaction, the Supreme Court’s steady denial of certiorari in cases raising this issue, and our own consistent application (and, arguably, expansion) of the precedent in a series of cases spanning more than a decade.” Maj. Op. at 693 n.6. To this list of reasons we can add one more: the holding in Lujan-Armendariz itself is entirely reasonable and prudent. Moreover, there is no compelling reason why we should overrule Lujan-Armendariz without first engaging in a thorough statutory analysis. Such an analysis reveals that Congress never intended to exclude state-expunged first-time drug possession dispositions from the definition of “conviction” in § 1101(a)(48)(A) of the INA.
For all of the foregoing reasons, I would grant Nunez-Reyes’s petition for review and hold that his two misdemeanor convictions are eligible for FFOA treatment. While the rational basis test sets a low bar, there is simply no indication that Congress intended to deny FFOA treatment to aliens with state-expunged first-time minor drug offenses who have successfully undergone a state-approved program that resulted in their rehabilitation. In fact, the majority’s opinion serves to undermine Congress’s evidenced intent. Unless and until we are willing to engage in a thorough analysis of the definition of “conviction” under the INA, we should adhere to the principle of stare decisis and demonstrate restraint. This is particularly true where, as here, reexamining and casting aside our precedent is unnecessary to deciding the case before us. Because the majority ultimately reaches further than it needs to, without digging deeper than it ought to, I dissent.
. Because I believe that the rule articulated in Lujan-Armendariz should be upheld, I do not reach the question whether the majority’s new rule should apply only prospectively.
. California Penal Code § 1210.1 (2006) codifies the Substance Abuse and Crime Prevention Act, also known as "Proposition 36.”
. This misdemeanor count of using or being under the influence of a stimulant was the same violation for which Nunez-Reyes was convicted under California Health & Safety Code § 11550(a).
. A person convicted of using or being under the influence of a controlled substance in violation of California Health & Safety Code § 11550(a) "is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail.”