Lead Opinion
Opinion by Judfe WARDLAW; Dissent by Judge IKUTA.
ORDER AND-AMENDED OPINION
ORDER
The opinion filed February 4, 2009, and published at
With these amendments, the panel has voted to deny as moot the petition for panel rehearing filed on March 20, 2009. No further petitions for rehearing shall be entertained.
OPINION
Joel Ramirez-Altamirano petitions for review of the denial of his application for cancellation of removal. The Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) both found that Ramirezr-Altamirano’s prior state conviction for possession of drug paraphernalia rendered him ineligible for relief, even though the conviction had been set aside under state law. Because the IJ and BIA erred in treating the set-aside conviction as an absolute bar to relief, we grant the petition and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ramirez-Altamirano was born in Mexico on September 25, 1967. He first entered the United States without inspection in April 1985, when he was seventeen. He
In May 2004, the Department of Homeland Security served Ramirez-Altamirano with a Notice to Appear before an IJ for removal proceedings. Before the IJ, Ramirez-Altamirano conceded that he had entered the country most recently in September 2000, and that he had done so illegally. He informed the IJ, however, that he would seek cancellation of removal under 8 U.S.C. § 1229b(b), and, in the alternative, post-conclusion voluntary departure under 8 U.S.C. § 1229c.
At a hearing in August 2004, the IJ asked Ramirez-Altamirano’s attorney whether he foresaw any potential bars to relief. In response, the attorney mentioned that, in 1993, Ramirez-Altamirano had been convicted of misdemeanor possession of drug paraphernalia under California Health and Safety Code section 11364. Ramirez-Altamirano had served five days in jail for the offense.
On October 19, 2004, Ramirez-Altamira-no succeeded in obtaining relief under a California rehabilitative statute. A state court found that “good cause” existed to order the conviction set aside, the guilty plea withdrawn, a plea of “not guilty” entered, and the charge dismissed. The court further ordered that Ramirez-Altamirano be “released from all penalties and disabilities” resulting from the conviction, except that he would not be relieved of his obligation to disclose the conviction “in response to any direct question contained in any questionnaire or application for public office, for licensure by any state [or] local agency, or for contracting with the California State Lottery.”
When Ramirez-Altamirano returned to Immigration Court in April 2005, the IJ considered whether the set-aside conviction affected his claim for cancellation of removal. Under 8 U.S.C. § 1229b(b)(l)(C), cancellation of removal is not available to nonpermanent residents who have been convicted of a controlled substance offense. Ramirez-Altamirano’s attorney argued, however, that because the conviction had been expunged under state law, it no longer precluded immigration relief. In support, he cited our opinion in Lujan-Armendariz v. INS,
The IJ rejected Ramirez-Altamirano’s argument, determining that the conviction retained its immigration consequences despite having been set aside in state court. The IJ found that the conviction could be used against Ramirez-Altamirano for immigration purposes because, by the terms of the state court’s order, it retained certain consequences under state law — specifically, the requirement to disclose the conviction upon request when applying “for public office, for licensure by any state or local agency, or for contracting with the
That Ramirez-Altamirano’s conviction retained its immigration consequences had “two profound impacts on his eligibility for cancellation of removal.” First, the conviction precluded relief under 8 U.S.C. § 1229b(b)(l)(C), which limits cancellation of removal to those nonpermanent residents who have not been convicted of a controlled substance offense. Second, the conviction served as a “stop-time event,” terminating (in a virtual sense) RamirezAltamirano’s “physical presence” in the United States. Because the conviction occurred in 1993, eight years after his initial entry in 1985, Ramirez-Altamirano could not demonstrate the ten years of continuous physical presence required by 8 U.S.C. § 1229b(b)(l)(A) for eligibility for cancellation of removal. The IJ therefore denied Ramirez-Altamirano’s application.
On appeal, the BIA adopted and affirmed the IJ’s denial of Ramirez-Altamirano’s application for cancellation of removal. The Board agreed that the 1993 conviction “rendered [Ramirez-Altamira-no] ineligible for cancellation of removal.” It concluded that the IJ did not err “in finding that [Ramirez-Altamirano] failed to meet his burden of proving that his expunged controlled substances conviction no longer qualified as a conviction for immigration purposes.” The BIA also agreed that the conviction, which occurred “less than 10 years after [Ramirez-Altamirano] first entered the United States,” “precluded him from accruing the period of continuous physical presence required for cancellation of removal.”
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the BIA’s determination that a controlled substance conviction precludes immigration relief as a matter of law. See de Jesus Melendez v. Gonzales,
We review the BIA’s legal determinations de novo. See Aguiluz-Arellano v. Gonzales,
III. DISCUSSION
The IJ held, and the BIA summarily agreed, that Ramirez-Altamirano’s prior conviction for possession of drug paraphernalia rendered him ineligible for cancellation of removal, even though the conviction had been set aside through a state rehabilitative statute. The IJ acknowledged that, under our decision in Lujan-Armendariz,
A. The Immigration Consequences of Expunged State Convictions
A nonpermanent resident seeking cancellation of removal must meet four threshold requirements. 8 U.S.C. § 1229b(b)(l). Specifically, the alien must:
(A) [have] been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) [have] been a person of good moral character during such period;
(C) [have] not been convicted of an offense[that would render the alien inadmissible under 8 U.S.C. § 1182(a)(2), or deportable under 8 U.S.C. § 1227(a)(2)-(3) ], subject to [certain exceptions for victims of domestic violence]; and
(D) establish ] that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or alien lawfully admitted for permanent residence.
Id. In analyzing the first requirement, “any period of ... continuous physical presence in the United States shall be deemed to end ... when the alien has committed an offense” referred to in 8 U.S.C. § 1182(a)(2) that renders the alien inadmissible under that provision, or removable under 8 U.S.C. § 1227(a)(2) or (a)(4). Id. § 1229b(d)(l). Under § 1182(a)(2), an alien convicted of a crime “relating to a controlled substance” is deemed inadmissible, subject to certain exceptions for youthful offenders or minor offenses. Id. § 1182(a)(2)(i), (ii). Therefore, a prior drug conviction theoretically can affect a nonpermanent resident’s eligibility for cancellation of removal in either of two ways: (1) It can render the alien directly ineligible under § 1229b(b)(l)(C); and (2) it can terminate the alien’s “continuous physical presence,” thereby precluding eligibility under § 1229b(b) (1) (A) and § 1229b(d)(l). But see Sinotes-Cruz v. Gonzales,
Ramirez-Altamirano argues that his prior conviction for possession of drug paraphernalia does not render him ineligible for relief because the California court set aside the conviction pursuant to a state rehabilitative statute.
However, although state rehabilitative statutes generally do not strip a conviction of its immigration consequences, the federal rehabilitative statute known as the Federal First Offender Act does. The FFOA provides relief for first-time defendants found guilty of drug possession. 18 U.S.C. § 3607. If the defendant has not previously been convicted of a federal or state controlled substance offense and has not previously been a beneficiary of the FFOA, the court may place him on probation without entering a judgment of conviction. Id. § 3607(a). At the end of the probation term, if the defendant has not violated any of the conditions of probation, the court will dismiss the proceedings and discharge the defendant without entering a judgment of conviction. Id. Moreover, if the defendant was less than twenty-one years old at the time of the offense, the court not only will dismiss the charges, but also will expunge all references to the arrest itself from most official records. Id. § 3607(c).
Given that the FFOA provides immigration relief for first-time defendants found guilty of drug possession in federal court, the Equal Protection Clause requires a parallel exception for similarly situated defendants prosecuted in state court. Lujan-Armendariz,
Federal convictions deferred under the FFOA and state convictions expunged under the rationale of Lujan-Armendariz no longer qualify as convictions for immigration purposes. See id. at 742-43. Therefore, if Ramirez-Altamirano’s set-aside conviction is considered expunged under Lujan-Armendariz, both grounds upon which the IJ denied Ramirez-Altamirano’s application are invalid. First, the conviction will not directly preclude eligibility for cancellation for removal under 8 U.S.C. § 1229b(b)(1)(C).; Second, the conviction will not terminate Ramirez-Altamirano’s “continuous physical presence” under 8 U.S.C. § 1229b(b)(1)(A) and § 1229b(d)(1).
B. Possession of Drug Paraphernalia
The IJ distinguished Lujam-Armendariz on the ground that RamirezAltamirano was convicted of possession of drug paraphernalia, while the FFOA applies to offenders charged only with possession of drugs. We rejected the identical argument in Cardenas-Uriarte,
In Cardenas-Uriarte, the petitioner originally was charged with two counts of possession of drugs but eventually pled guilty to the lesser offense of possession of drug paraphernalia.
That the reasoning in Cardenas-Uriarte applies squarely to the facts of this case is not disputed by our dissenting colleague. See Dissent at 4281. Ramirez-Altamirano originally was charged both with possession of drugs under California Health and Safety Code section 11350 and possession of drug paraphernalia under section 11364 of the same code. Ramirez-Altamirano eventually pled guilty only to the drug paraphernalia charge, a misdemeanor under state law. See Cal. Health & Safety Code § 11364. If he had instead pled guilty to the more serious drug possession charge, Ramirez-Altamirano’s conviction would have qualified him for relief under the FFOA. The structure of his plea agreement obviously was intended to minimize his culpability by allowing him to avoid facing the more serious drug possession charge, and reflects the state’s view as to the seriousness of the offense. We can conceive of no rational basis for treating Ramirez-Altamirano more harshly than a federal defendant found guilty of possessing drugs who would be eligible for immigration relief under the FFOA.
We acknowledged in Cardenas-Uriarte that a state statute criminalizing possession of drug paraphernalia could, in theory, be more serious than one criminalizing simple drug possession.
C. The Terms of Expungement under State Law
In the alternative, the IJ found that Ramirez-Altamirano’s conviction was not expunged for immigration ' purposes because “[t]he [state court] order itself, by its plain language, shows that even for the State of California, the respondent has a conviction, at least for disclosing it for public office, for seeking a license by any State or local agency, and for even contracting with the California State lottery.” Because “the critical question is not the nature of the state’s expungement statute but rather what [the petitioner] did,” Lujan-Armendariz,
We note that the title of the expungement order does not reflect the nature of the order itself. The state court order is entitled “ORDER DISMISSING ACCUSATION AGAINST PROBATIONER [PENAL CODE § 1203.4a].” This description is oxymoronic, because California Penal Code section 1203.4a applies only to defendants “not granted probation.” Cal.Penal Code § 1203.4a(a). The similar expungement relief accorded to probationers is set forth in California Penal Code section 1203.4. Moreover, section 1203.4, unlike section 1203.4a, requires that the order state that it “does not relieve [the probationer] of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.” Id. § 1203.4(a). The state court’s order recited this text nearly verbatim, suggesting that Ramirez-Altamirano actually was granted relief under section 1203.4 and the caption’s description of the order misstates the applicable statute.
Under either statute, the set-aside conviction retains certain residual consequences under state law. Under California Vehicle Code section 13555, relief granted under either section 1203.4 or section 1203.4a will not reinstate a defendant’s driving privileges if they were revoked or suspended as a result of the original conviction. For certain violent offenses, a defendant still may be prohibited from possessing or controlling a firearm after his conviction is dismissed under section 1203.4a. Cal.Penal Code § 12021.1(a). As described above, convictions, set aside under section 1203.4 must be disclosed on certain questionnaires. Finally,.under either statute, a prior set-aside conviction may be “pleaded and proved” if the defen
Although we have never addressed explicitly the extent to which a conviction must be “expunged” under state law before invoking the equal protection concerns articulated in Lujaiv-Armendariz, our analysis consistently has focused on whether aliens “would have been eligible for relief under the [FFOA] had their offenses been prosecuted as federal crimes,”
We first addressed the equal protection ramifications of the FFOA in Garberding,
In our subsequent cases, we reiterated that “the relevant question is whether the person involved could have received relief under the [FFOA] and does receive relief under a state rehabilitative statute.” Lujan-Armendariz,
Moreover, we frequently have found that equal protection principles required treating state drug possession convictions as “expunged” for immigration purposes even when the convictions retained certain consequences under state law. The Montana statute under which Garberding was granted relief specifically allows for “public access to the[records related to the dismissed charge] ... by district court order upon good cause shown.” Mont. Code Ann. § 46-18-204; Garberding,
The dissent argues that Garberding, Lujan-Armendariz, and Cardenas-Uriarte are “inapposite! ] because in none of them did we consider or even mention the extent to which the state expungement scheme removed the consequences of a conviction.” Dissent at 4285. The dissent’s cramped reading of these cases is unpersuasive. We have repeatedly found that an individual can be considered to have “receivefd] relief under a state rehabilitative statute” even when the statute in question does not expunge a conviction for all purposes.
We are thus bound to apply Lujavr-Armendariz’s holding that “the relevant question is whether the person involved could have received relief under the [FFOA] and does receive relief under a state rehabilitative statute.”
Ramirez-Altamirano meets each of the first three requirements, placing him in exactly the position of federal defendants eligible for relief under the FFOA.
IY. CONCLUSION
Ramirez-AItamirano’s set-aside conviction for possession of drug paraphernalia, which has been expunged, does not bar his relief under Lujan-ArmendaHz. The IJ and the BIA therefore erred in finding Ramirez-Altamirano statutorily ineligible for cancellation of removal on the basis of that conviction and in finding that the conviction terminated the accrual of his “continuous physical presence” in the United States. Accordingly, we grant the instant petition and remand to the BIA. On remand, the BIA should consider whether Ramirez-Altamirano qualifies for relief under Lujan-ArmendaHz even though he received a jail sentence, as opposed to probation. The BIA also should consider whether Ramirez-Altamirano is otherwise eligible for relief, and, if so, should exercise its discretion to determine whether to grant the requested relief.
PETITION GRANTED; REMANDED for further proceedings.
Notes
. Section 11364 makes it "unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking” certain controlled substances. Cal. Health & Safety Code § 11364(a). As applied to section 11364, "drug paraphernalia” means "all equipment, products and materials of any kind which are designed for use or marketed for use, in [injecting or smoking the relevant controlled substances].” Id. § 11014.5(a).
. The IJ suggested that there might be other problems with Ramirez-Altamirano's application, but he declined to reach any of those issues because he found the drug paraphernalia conviction dispositive.
. Many jurisdictions, including California, have adopted rehabilitative statutes to reduce the long-term impact of criminal convictions on individuals who subsequently demonstrate a period of good behavior following their adjudication. See Lujan-Armendariz, 222 F.3d at 734-35. These take several forms:
In some types, which we will refer to as "vacatur” or "set-aside” laws, a formal judgment of conviction is entered after a finding of guilt, but then is erased after the defendant has served a period of probation or imprisonment and his conviction is ordered dismissed by the judge.... In other types, which we will refer to as “deferred adjudication” laws, no formal judgment of conviction or guilt is ever entered. Instead, after the defendant pleads or is found guilty, entry of conviction is deferred, and then during or after a period of good behavior, the charges are dismissed and the judge orders the defendant discharged.
Id. at 734 n. 11. The primary effect of any of these statutes is to remove the legal consequences of a conviction. Many of the statutes, however, still allow or require disclosure of the conviction in certain circumstances, see, e.g., Mont.Code Ann. § 46-18-204 (2007)
. The FFOA therefore provides two distinct forms of relief — one available for all defendants, and the other available only for those who were less than twenty-one years old at the time of the offense. See In re Manrique, 21 I. & N. Dec. 58, 61 n. 4 (BIA 1995) ("[T]he expungement provisions of 18 U.S.C. § 3607(c) ... are separate from and in addition to the requirements for dismissal of the proceedings of a first offender under § 3607(a).”).
. Contrary to the assertion of the dissent, our approach in Lujan-Armendariz is entirely consistent with our recent en banc decision in Abebe v. Mukasey,
The out-of-circuit cases cited by the dissent also fail to provide a reason for revisiting Lujan-Armendariz. See id. at 4277-78. While some of our sister circuits have reached different conclusions as to what constitutes a "conviction” for purposes of immigration law, we are nonetheless compelled to follow the well-reasoned conclusion in Lujan-Armendariz, as other panels of our court have done. See, e.g., Cardenas-Uriarte v. INS,
. The dissent acknowledges that the BIA relied on only these .two grounds in rejecting Ramirez-Altamirano’s appeal, and that our review is limited to the grounds on which the BIA actually relied; yet, it nevertheless proceeds to analyze an issue that the BIA did not even mention — whether an alien who receives a term of jail, as opposed to a term of probation, could have qualified for and received expungement of the offense under the FFOA. See Dissent at 818-20. This issue has yet to be squarely addressed in our circuit, see Lujan-Armendariz,
. The dissent's reliance on Ramirez-Castro is both misplaced and misleading. See Dissent at 4283-85. In Ramirez-Castro, the petitioner was found deportable by reason of his state court misdemeanor conviction for carrying a concealed weapon.
. As we have already discussed, the statute at issue expunges a conviction for almost all purposes, save a few residual consequences under state law. See Cal.Penal Code §§ 1203.4, 1203.4a. The dissent’s reference to "the limited nature of the relief provided by section 1203.4a” is thus misleading. Dissent at 821.
. The government mistakenly argues that to be eligible for relief under the FFOA, one also must be under twenty-one years old at the time of the offense. In making this argument, the government conflates the general deferred adjudication provision in 18 U.S.C. § 3607(a) with the special provision for expunging youthful offenders' airests in § 3607(c). See Matter of Manrique, 21 I. & N. Dec. at 61 n. 4; cf. Paredes-Urrestarazu,
Dissenting Opinion
dissenting:
The majority holds that an alien convicted of the state offense of possession of drug paraphernalia and given limited relief under a state expungement scheme does not have a “conviction” for purposes of determining whether an alien is inadmissible under 8 U.S.C. § 1182(a)(2) or deportable under 8 U.S.C. § 1227(a)(2). According to the majority, the Equal Protection Clause compels this ruling, because aliens convicted of certain federal drug crimes expunged under the Federal First Offender Act (FFOA) do not have a “conviction” for purposes of determining inadmissibility or deportability under §§ 1182(a)(2) and 1227(a)(2). The majority is wrong. The Equal Protection Clause does not compel us to invalidate a distinction between aliens who receive relief under the FFOA and aliens who receive relief under state law, because “[djistinctions between different classes of aliens in the immigration context are subject to rational basis review and must be upheld if they are rationally related to a legitimate government purpose.” Aguilera-Montero v. Mukasey,
I
The Immigration and Nationality Act authorizes the Attorney General to cancel removal of a qualified alien who is inadmissible to, or deportable from, the United States. 8 U.S.C. § 1229b. To be eligible for this relief, an alien must, among other things, not have a conviction for a drug-related offense, as defined in 8 U.S.C. § 1182(a)(2) and 8 U.S.C. § 1227(a)(2). See 8 U.S.C. § 1229b(b)(l)(C). Under the INA definition of conviction, an alien has a “conviction” whether or not the alien’s sentence is subsequently expunged. See 8 U.S.C. § 1101(a)(48)(A). Yet, beginning with our 1994 decision in Garberding v. INS,
A
Section 241(a)(11) of the Immigration and Nationality Act of 1952, 66 Stat. 204, codified at 8 U.S.C. 1251(a)(11) (1952), provided that any alien “convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs” or other drug crimes was subject to deportation upon order of the Attorney General. Matter of A-F-, 8 I. & N. Dec. 429, 441 (1959) (Att’y Gen.). At that time, the Act did not define the words “convicted” or “conviction.” In 1959, the Attorney General took the position that, given the “continuing and serious Federal concern” regarding drug trafficking, “Congress did not intend that aliens convicted of narcotic violations should escape deportation because, as in California, the State affords a procedure authorizing a technical erasure of the conviction.” Id. at 445.
In 1970, Congress enacted the FFOA to provide relief for persons convicted of simple possession of a controlled substance as
In Garberding,
Following Garberding, the BIA reexamined its position and held that “an alien who has been accorded rehabilitative treatment under a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the provisions of 18 U.S.C. § 3607(a) (1988) had he been prosecuted under federal law.” Matter of Manrique, 21 I. & N. Dec. 58, 64 (1995). A year after Manrique, however, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which substantially amended the INA. Among other changes, Congress provided a statutory definition of “conviction”:
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.
We therefore interpret the new definition to provide that an alien is considered convicted for immigration purposes upon the initial satisfaction of the requirements of section 101(a)(48)(A) of the Act, and that he remains convicted notwithstanding a subsequent state action purporting to erase all evidence of the original determination of guilt through a rehabilitative procedure.
Matter of Roldan-Santoyo, 22 I. & N. Dec. 512, 523 (BIA 1999).
But in Lujan-Armendariz, we rejected the BIA’s reasoning. There, a petitioner convicted of attempted possession of cocaine challenged the BIA’s determination of deportability under 8 U.S.C. § 1227(a)(2)(B) (a successor to section 241(a)(11) of the INA)
Our subsequent decision in Cardenas-Uriarte v. INS,
In sum, before the decision today, an alien did not have a “conviction” for immigration purposes if: (1) “adjudged guilty” of a state crime that was identical to an offense under federal law, Lujan-Armendariz,
B
The BIA rejected the Lujan-Armendariz analysis. See Matter of Salazar-Regino, 23 I. & N. Dec. 223 (2002) (concluding that, “except in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the Act”).
In Acosta v. Ashcroft, the Third Circuit also rejected our approach.
[W]e can easily see a rational basis for a distinction between aliens whose criminal cases are dismissed under the federal FFOA and those whose charges are handled under similar state schemes. 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 considered 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. As the Supreme Court recently noted, “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Demore v. Kim,538 U.S. 510 ,123 S.Ct. 1708 ,155 L.Ed.2d 724 (2003).
Other circuits that have considered the effect of IIRIRA’s definition of “conviction” have likewise rejected our approach. See Madriz-Alvarado v. Ashcroft,
More important, our approach in Lujan-Armendariz is inconsistent with our en banc decision in Abebe v. Mukasey,
But even if we do not revisit our equal protection analysis, which has roamed far from the standards set by the Supreme Court, I would conclude that Ramirez is not entitled to immigration relief under either our case law or the Equal Protection Clause. The basis for this conclusion is straightforward: Ramirez simply did not obtain relief analogous to that provided by the FFOA.
In 1993, Ramirez was convicted under section 11364 of the California Health and Safety Code for possession of drug paraphernalia and was sentenced to five days in jail. Ramirez was subsequently granted relief under section 1203.4a of the California Penal Code,
In his hearing before the immigration judge (IJ), Ramirez sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b). The IJ held that Ramirez did not qualify for this form of relief because his state conviction “still exists for Immigration purposes.” The IJ noted that the state court’s order granting Ramirez a remedy under section 1203.4a “shows that even for the State of California, the respondent has a conviction, at least for disclosing it for public office, of seeking [sic] , a license by any State or local agency, and for even contracting with the California State lottery.” The BIA affirmed, holding that “the respondent failed to demonstrate statutory eligibility for cancellation of removal,” because he failed to carry his burden of demonstrating “he could have satisfied the requirements of the [FFOA] under 18 U.S.C. § 3607.”
In analyzing Ramirez’s appeal of the BIA’s denial under the three-prong Lujanr-Armendariz test, we first consider
Skipping ahead for a moment, a similar result occurs under the third prong of the test, which addresses the question whether the alien would have qualified for and received expungement of the offense under the FFOA. See Lujan-Armendariz,
Thus, the analysis turns on the second prong of the Lujan-Armendariz test, which requires expungement of an offense under state law.
The majority reaches the opposite conclusion for two reasons. First, the majority claims that section 1203.4 expungement is equivalent to an expungement under the FFOA because the exceptions to relief under section 1203.4a are narrow, minimal, and residual. Maj. Op. at 808-10, 811. This conclusion is contrary to our reasoning in Ramirez-Castro v. INS,
We stated that “as a general rule, an expunged conviction qualifies as a conviction” for purposes of § 1101(a)(48)(A), but noted that we had carved out an exception to this general rule “in cases involving first-time simple possession of narcotics.”
Second, the majority claims that Lujan-Armendariz’s second prong is met because the scope of relief provided by a state expungement statute is less important than whether the petitioner would qualify for FFOA relief at all. Maj. Op. at 808-09 (“the critical question is not the nature of the state’s expungement statute but rather ‘what [the petitioner] did.’ ”) (citing Lujan-Armendariz,
Again, I disagree. The three cases cited by the majority to buttress this proposition are inapposite, because in none of them did we consider or even mention the extent to which the state expungement scheme removed the consequences of a conviction. For example, Garberding is entirely silent on the scope of the state statute, and did not even quote the section of the Montana statute cited by the majority. See Garberding,
I also disagree with the majority’s suggestion that the scope of relief provided by the state statute is irrelevant. The question under our equal protection jurisprudence is whether there is a rational basis for distinguishing aliens receiving relief under the FFOA from aliens receiving relief under the state rehabilitation test. A state’s decision to completely rehabilitate a convict reflects its assessment that a person has reformed and should be given a fresh start. A rehabilitation statute that provides only partial or limited relief reflects a different determination. Although the majority cites Lujan-Armendariz,
In this case, the limited nature of the relief provided by section 1203.4a of the California Penal Code makes it “reasonable for the BIA to conclude that a conviction expunged under [such a] provision remains a conviction for purposes of federal law.” Ramirez-Castro,
Ill
Our prior decisions have led us, step by step, to the conclusion that Congress could have no rational reason for treating the expungement offered under the FFOA to certain first offenders convicted for certain federal drug crimes differently from a more limited expungement offered under state law to persons convicted for different state drug crimes. Clearly, we have traveled far from our main task of determining, “not whether the statutory scheme makes sense to us, but whether we can conceive of a rational reason Congress may have had in adopting it.” Abebe,
. 8 U.S.C. § 1227(a)(2)(B)(i) provides, in pertinent part, that:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ... is deportable.
. Although the caption of the court order granting relief refers to "order dismissing accusation against probationer,” the reference to Ramirez as probationer appears to be a scrivener's error. The court order otherwise correctly references section 1203.4a, and relief was granted under section 1203.4a. Section 1203.4a of the California Penal Code allows limited expungement for a defendant convicted of a misdemeanor and not granted probation, while section 1203.4 of the California Penal Code allows limited expungement for a defendant who has fulfilled the conditions of probation. Because Ramirez was sentenced to jail time, not probation, the court would be authorized to grant relief only under section 1203.4a.
. Section 12021.1 of the California Penal Code provides that it is a felony for persons convicted for certain violent crimes to own or possess a firearm, notwithstanding whether the person received relief under section 1203.4a. Section 13555 of the California Vehicle Code provides:
A termination of probation and dismissal of charges pursuant to Section 1203.4 or a dismissal of charges pursuant to Section 1203.4a of the Penal Code does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter. Such person's prior conviction shall be considered a conviction for the purpose of revoking or suspending or otherwise limiting such privilege on the ground of two or more convictions.
. The majority notes that in Lujan-Armendariz, the state expungement statute did not relieve defendants of all residual consequences of their convictions. Specifically, the ex-pungement statute precluded relief, in certain cases, from various department of transportation and game and fish commission penalties. Lujan-Armendariz did not discuss this aspect of the state expungement statute, stating only that the statute’s exceptions to "the release ‘from all penalties and disabilities’ ” were "not relevant here.”
. Section 1203.4(a) (the statute at issue in Ramirez-Castro) states that after expungement, a defendant "shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code." Cal. Pen.Code § 1203.4(a).
Section 1203.4a(a) (the statute at issue here) states that after expungement, a defendant "shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 12021.1 of this code or Section 13555 of the Vehicle Code.” Cal. Pen.Code § 1203.4a(a).