Ramirez-Altamirano v. Holder

instance) issue in the first consider the confronted must do when fact should Lorion, Light Co. v. basic Fla. Power & (quoting on such testimony that conflicts with 1598, 744, 729, and altitude. See 105 S.Ct. 470 U.S. flight path issues as 521-22; (1985)). also Dutton, see L.Ed.2d 643 7 N.T.S.B. EA-5085, 2004 WL 595290 Gould, No. Andrzej ewski’s grant Accordingly, Oliveira, 2004); 18, No. (N.T.S.B. Mar. re- to the NTSB for petition and remand (N.T.S.B. EA-4995, 2002 WL consideration. case, Therefore, 2002). in this 17, Sept. PETITION GRANTED. concluded the ALJ erroneously

the NTSB credibility determination did not make required to defer. the NTSB give failure to

The NTSB’s credibility determination implicit

ALJ’s con deference was level of requisite and, therefore, precedent

trary to NTSB Atchison, See arbitrary capricious.4 RAMIREZ-ALTAMIRANO, Joel Be 807-08, 2367. 93 S.Ct. 412 U.S. at Petitioner, incorrectly concluded the cause the NTSB implic on an not based ALJ’s decision was however, determination, credibility Jr.,* Attorney HOLDER, Eric H. yet addressed whether has not NTSB General, Respondent. reverse reason” to “compelling there is No. 06-71445. credibility finding or whether the ALJ’s “clearly erroneous.” See finding was Appeals, States Court United Thus, Chirino, at 1529-30. Ninth Circuit. make these deter NTSB to

remand to the 5,May See INS v. 2008. Argued minations in the first instance. and Submitted 12, 16, Ventura, 537 U.S. Orlando 4, 2009. Filed Feb. (2002) 353, (holding 154 L.Ed.2d S.Ct. 14, April Amended yet consid agency an that where ” “ issue, course’ is ‘proper ered an agency the matter to allow remand testimony helpful he opin- does not mean language nesses’ in the NTSB's

4. There is some "explana- testimony completely. An- construed as credit their ion that could be must 3568702, *5; failing prece- to adhere to its own drzejewski, tion” for see Dut- 2006 WL Atchison, 807-08, 93 412 U.S. at ton, dent. See (stating "a 7 N.T.S.B. at 522-23 "explanations” them- S.Ct. 2367. Such require credibility [an determination does not precedent. with NTSB in conflict selves testimony op- to disbelieve the entire ALJ] First, the ALJ assertion that the NTSB’s witnesses,” if the posing "[e]ven because any detailed assessment of the “abandoned party’s wit- portions of [ALJ] [one found it relates to his find- evidence in the case as believable, testimony it is not incon- nesses’] ings” justify de review. does not novo Andrze- testimony sistent for her to have credited EA-5263, at *4 jewski, 2006 WL No. party’s] the more witnesses as [other (N.T.S.B. 2006). "credibility An ALJ’s Dec. occurred”). of what accurate account findings implicit” even to the witnesses are as * Jr., Holder, pre- for his H. is substituted Eric lacking. E.Air where detailed assessment decessor, Attorney Mukasey, B. Ltd., EA-5089, Michael Mgmt., No. 2004 WL Likewise, R.App. P. Fed. (N.T.S.B. 2004). General of the United States. May at *2 43(c)(2). wit- found of the FAA’s fact ALJ some Before: KIM McLANE WARDLAW IKUTA, Judges, and SANDRA Circuit S. FOGEL,** and JEREMY D. District Judge. WARDLAW;

Opinion by Dissent Judfe Judge IKUTA. ORDER AND-AMENDED OPINION ORDER 4, February 2009, opinion filed (9th Cir.2009) published at 554 F.3d 786 superseded by opinion the amended below. amendments, panel With these to deny petition voted as moot the for 20, on March panel rehearing filed rehearing further petitions No for shall be entertained.

OPINION WARDLAW, Judge: Circuit petitions Joel Ramirez-Altamirano for application review of of his the denial for cancellation of removal. The Immigration (“IJ”) Judge and Board of Immigration (“BIA”) Appeals both found Ramirezr- conviction prior pos- Altamirano’s for Escondido, Bove, CA, peti- Kevin A. for of drug paraphernalia session rendered tioner Joel Ramirez-Altamirano. relief, ineligible him even though for set aside had been under state LeFevre, Ronald Office of the District law. Because the IJ and BIA in erred Counsel, Department of Homeland Securi- treating the set-aside conviction an ab- Francisco, CA; Greenstein, ty, San Saul relief, bar grant petition solute Smith, Wendtland, Holly Linda M. S. proceedings. remand for further Litigation, Immigration Office of Civil Di- vision, Justice, Department U.S. Wash- I. AND FACTUAL PROCEDURAL D.C., ington, respondent Attorney Gen- BACKGROUND eral Holder.

Ramirez-Altamirano was born Mexico September 1967. He first entered inspection without United States April when he was seventeen. He California, Jeremy sitting by designation. Fogel, **The Honorable D. United Judge States District Northern District to have resided in the response any claims United States direct contained then, continuously although since he ad- in any questionnaire application returning occasionally office, public mits Mexico licensure state [or] period. during that time agency, local or for contracting with the California Lottery.” State May Department of Home- Security land served Ramirez-Altamirano When Ramirez-Altamirano returned to Appear with a Notice to before an IJ for Immigration April Court in the IJ IJ, proceedings. removal Before the Ra- considered whether the set-aside convic mirez-Altamirano conceded that he had tion affected his claim for cancellation of country entered the recently Sep- most removal. Under U.S.C. 2000, tember and that he had done so 1229b(b)(l)(C), § cancellation of removal is illegally. IJ, however, He informed the not available nonpermanent residents that he would seek cancellation of removal who have been convicted of a controlled 1229b(b), and, § under 8 U.S.C. in the substance offense. Ramirez-Altamirano’s alternative, post-conclusion voluntary de- attorney however, argued, that because parture § under 8 U.S.C. 1229c. the conviction had been expunged under law, state it longer precluded no immigra 2004,

At in hearing August the IJ tion relief. In support, he cited our opin attorney asked Ramirez-Altamirano’s in Lujan-Armendariz ion he any potential whether foresaw bars to (9th Cir.2000), which held that federal response, relief. the attorney men- convictions under the Fed that, 1993, tioned in Ramirez-Altamirano eral (“FFOA”), First Offender Act had been convicted of pos- misdemeanor 3607, § U.S.C. could not be used for immi drug paraphernalia session of under Cali- gration purposes, 749, 222 F.3d at and that fornia Safety Health and Code section “no rational basis ... exists for denying 11364. Ramirez-Altamirano had served identically relief to situated aliens who jail in days five for the offense.1 His qualify for similar treatment under state noted, however, attorney that Ramirez- expungement laws,” id. at 743 n. 24. Altamirano was seeking expungement of in the conviction state court. rejected The IJ Ramirez-Altamirano’s argument, determining that On October Ramirez-Altamira- immigration retained its consequences no de- obtaining succeeded relief under a spite having been set aside California rehabilitative court. statute. A state The IJ found that the conviction “good court found that could be cause” existed to against used aside, order the conviction set Ramirez-Altamirano for im- guilty withdrawn, migration because, plea plea guilty” of “not en- terms tered, order, of the state charge and the court’s dismissed. The retained cer- tain consequences court further ordered that specif- Ramirez-Alta- under state law— ically, mirano be “released from all penalties requirement to disclose the con- conviction, disabilities” resulting upon from the viction request when applying “for except office, that he would not be public relieved of his by any for licensure state or obligation to disclose the conviction “in agency, local or for contracting with the 1. Section pos- "drug 11364 makes it "unlawful to paraphernalia” means "all device, opium pipe any sess an or contri- equipment, products and materials of vance, instrument, paraphernalia or used for designed kind which are for use or marketed unlawfully injecting smoking” or certain con- use, [injecting smoking the relevant Safety trolled substances. Cal. Health & 11014.5(a). controlled substances].” 11364(a). applied As to section States,” Lottery.” rano] also first entered United IJ State California period “reli- him from “precluded accruing that Ramirez-Altamirano’s explained mis- Lujaiu-Armendariz presence required [was] physical ance of continuous case involved “the placed,” because for cancellation of removal.” of a simple possession controlled crime of AND II. STANDARD JURISDICTION could re- for which one receive

substance” OF REVIEW lief that Ramirez-Altamira- The IJ concluded jurisdiction We under 8 U.S.C. have “different, in it is [that] no’s convictionwas 1252(a)(2)(D) to review the BIA’s deter drug paraphernalia.” con mination that controlled substance Ramirez-Altamirano’s conviction That relief as precludes viction consequences had its retained matter See de Melendez v. of law. Jesus eligibility on his profound impacts (9th “two Gonzales, Cir. First, con- cancellation of removal.” 2007). precluded relief under 8 U.S.C. viction deter legal review BIA’s We 1229b(b)(l)(C), limits cancellation novo. See Aguiluz-Arellano minations de nonpermanent resi- of removal those (9th Gonzales, 980, v. Cir. 983 a who have not been convicted of dents 2006). here, When, adopts as BIA Second, substance offense. controlled decision, portion review that of the IJ’s event,” “stop-time conviction served as a portion decision if it of the IJ’s as were sense) (in terminating Ramirez- virtual BIA’s. 293 Molina-Estrada See in the “physical presence” Altamirano’s (9th Cir.2002). 1089, F.3d Our re 1093 the conviction oc- United States. Because view is to the relied grounds limited actual after eight years curred in his initial upon by Ashcroft, the BIA. Andia v. 359 entry in Ramirez-Altamirano could (9th Cir.2004). F.3d “If we years the ten continu- not demonstrate that the BIA’s decision cannot be conclude presence required by 8 physical ous U.S.C. its must re upon reasoning, sustained 1229b(b)(l)(A) eligibility § for for cancella- agency any mand allow the to decide removal. The IJ therefore tion of denied remaining in the Id. issues case.” application.2 Ramirez-Altamirano’s appeal, adopted the BIA and af- On III. DISCUSSION firmed the IJ’s of Ramirez-Altami- denial held, summarily The IJ and BIA application rano’s for cancellation of re- agreed, prior that Ramirez-Altamirano’s The that agreed moval. Board the 1993 possession drug parapher for conviction conviction “rendered [Ramirez-Altamira- nalia him cancella ineligible rendered for ineligible for cancellation of no] removal.” removal, though tion of even the conviction It concluded that the IJ did not err “in had been rehabil through set aside a state finding that failed [Ramirez-Altamirano] that, acknowledged itative statute. IJ proving to meet his burden of that his in Lujan-Armendariz, under our decision expunged controlled substances conviction certain longer qualified a conviction im- no as “convic cannot be treated as convictions migration purposes.” The BIA also Yet, the conviction, immigration purposes. tions” for agreed that the which occurred years Lujan-Armendariz than 10 IJ did not [Ramirez-Altami- “less after held that suggested might drug parapherna- 2. The IJ that there other issues because he found the be problems applica- with dispositive. Ramirez-Altamirano's lia conviction tion, but he declined to reach those (1) alien lawfully per- for two reasons: Ramirez-Alta- States or admitted apply was manent residence. mirano’s conviction posses- opposed drug paraphernalia analyzing Id. requirement, first (2) the terms of drugs; sion of “any of ... period physical continuous order, Ramirez- court’s set-aside the state presence in United States shall required to disclose Altamirano end ... deemed to when the alien has ques- state-specific on certain conviction committed offense” to in referred applications. conclude tionnaires We 1182(a)(2) § U.S.C. the alien renders supports the grounds that neither of these under that or provision, inadmissible re IJ’s conclusion Ramirez-Altamirano’s 1227(a)(2) § under 8 U.S.C. movable conse- retained its conviction (a)(4). 1229b(d)(l). Id. Under quences. 1182(a)(2), an alien convicted crime of a to a “relating controlled substance” Consequences Immigration A. The inadmissible, subject deemed to certain ex Expunged State Convictions ceptions youthful offenders or minor nonpermanent seeking can- A resident (ii). 1182(a)(2)(i), offenses. There meet four cellation of removal must fore, prior drug theoretically requirements. threshold U.S.C. nonpermanent can affect eligi resident’s 1229b(b)(l). alien Specifically, the must: bility for cancellation of removal in either (A) (1) in the It physically present ways: [have] been two can render the alien period directly ineligible 1229b(b)(l)(C); States for a continuous United (2) years immediately pre- less than 10 it can terminate the “contin alien’s ceding application; physical presence,” the date of such uous thereby preclud 1229b(b)(1)(A) ing eligibility § under and (B) person good been a of moral [have] 1229b(d)(l). § But see v. Sinotes-Cruz during period; character such Gonzales, (9th 468 F.3d 1202-03 Cir. (C) not been of an of- [have] convicted 2006) (holding that stop-time the rule of would alien inad- fense[that render the 1229b(d)(l) § apply retroactively does not 1182(a)(2), § under missible or 1996). to crimes before 1227(a)(2)- deportable under 8 U.S.C. (3) ], subject exceptions to [certain Ramirez-Altamirano argues violence]; of victims domestic prior his conviction for of drug (D) would re- paraphernalia ineligi ] removal does not render him establish extremely in exceptional sult unusu- ble for because the court relief California parent, al hardship spouse, pursuant the alien’s set aside the conviction a state child, or who is a citizen the United rehabilitative statute.3 of The BIA has fol- California, Many jurisdictions, including types, 3. we will “deferred refer as laws, adopted have rehabilitative to reduce adjudication” judgment statutes no formal of long-term impact Instead, of convictions guilt criminal conviction or is ever entered. subsequently who on individuals demonstrate pleads defendant after the or found is period good following deferred, a of behavior their ad- entry guilty, of conviction is judication. Lujan-Armendariz, See 222 F.3d during period good then or after a behav- of at 734-35. These take several forms: ior, charges judge are dismissed and the discharged. orders the defendant types, some which we will refer to as laws, primary n. 11. The Id. at 734 effect of or a formal "vacatur” "set-aside” judgment legal these statutes is to remove the conse- of conviction after a is entered quences Many a finding guilt, conviction. stat- but then is erased after the of the utes, however, require period probation still allow or disclosure defendant has served a circumstances, imprisonment is or- of the conviction in certain and his conviction see, (2007) judge.... e.g., In other dered dismissed Mont.Code Ann. 46-18-204 806 Id. rest itself from most official records. immigra “[f]or rule that general a

lowed 3607(c).4 a continues to stand indicates that purposes, person nothing Because tion notwithstanding immigra of an offense Congress convicted intended create an a state’s rehabili FFOA, later exception to the tion-based INS, v. Ramirez-Castro tative statute.” may have held that deferred convictions Cir.2002). (9th Al 1174 287 F.3d not for immi be treated “convictions” that the BIA’s though explained we have gration proceedings when many only plausi one of interpretation Lu later FFOA. See dismissed laws, readings ble 743-49; jan-Armendariz, F.3d at see to the rule generally deferred BIA’s have INS, Garberding also v. 30 F.3d effect of considering when Cir.1994). (9th 1189-91 id.; Murillo-Espi convictions. See state that the FFOA im provides Given (9th INS, 771, 774 v. Cir. noza migration relief for first-time defendants 2001). drug possession found in federal guilty of However, although state rehabilitative court, Equal re Protection Clause strip not generally statutes do exception similarly quires parallel immigration consequences, of its the feder- prosecuted in situated defendants state al known as Fed- rehabilitative statute Lujan-Armendariz, court. F.3d eral First Offender Act does. FFOA 749; F.3d Paredes-Urrestarazu relief provides for first-time defendants (9th Cir.1994); 811-12 Garberding, 30 guilty drug possession. found U.S.C. have F.3d 1191. We held that there is previous- If the has not 3607. defendant no rational for denying basis of a federal or ly been convicted relief on the happenstance based mere substance offense and controlled prosecuted by that the individual was beneficiary been a previously of the than govern state rather federal him may place proba- the court ment. Lujan-Armendariz, See entering judgment tion without convic- at 743 also n. We have found no 3607(a). At the end tion. denying rational basis for re term, probation if the defendant not has merely lief because a state rehabilitative any probation, violated of the conditions and procedural statute’s structural details court proceedings the will dismiss the and differed those of the id. from FFOA. See the discharge entering defendant without a (“[T]he at 738 n. critical not 18 is Moreover, judgment conviction. Id. if the state’s expungement nature of the stat the defendant than twenty-one was less ute but what petitioner] [the rather did.” years offense, old at the time of the (second (internal in only alteration charges, original) court not will dismiss the but omitted)); expunge will to quotation Garberding, also all references the ar- marks (allowing "public provides [records access to the 4. The therefore FFOA two distinct relating charge] to data the dismissed ... forms relief—one defen- available for all shown”), dants, upon good only district court order cause the other available for those go expunge only twenty-one years while others further and who than old at were less arrest, Manrique, the conviction but also the entire see time of the offense. See In re 3607(c) (BIA 1995) ("[T]he special, § (providing 18 U.S.C. a 21 I. & n. 4 en N. Dec. offenders). provision youthful provisions hanced For of 18 U.S.C. 3607(c) § simplicity, generally separate use term "ex- ... are from and in addi- effect, pungement” requirements to describe the when tion to of the even for dismissal Lujan- proceedings it is to some extent a misnomer. a first offender Armendariz, 3607(a).”). § 222 F.3d at 734 n. 11. See id. at 742-43. Instead, Pro- Equal purposes. at tion 1190-91. There requires immigra- fore, Ramirez-Altamirano’s tection Clause if set-aside tion benefits of the FFOA be extended expunged conviction is considered granted those relief under individuals Lujan-Armendariz, grounds upon both statutes who “would have rehabilitative which the IJ denied Ramirez-Altamirano’s relief under eligible [FFOA] been First, application invalid. the convic prosecuted as fed- had their offenses been directly tion will not preclude eligibility for Lujan-Armendariz, eral crimes.” cancellation for removal under 8 U.S.C. F.3d at 749.5 1229b(b)(1)(C).; Second, the conviction will not terminate

Federal convictions deferred under the Ramirez-Altamirano’s physical un- “continuous presence” FFOA and state convictions under 8 Lujan-Armendariz 1229b(b)(1)(A) der the rationale no U.S.C. 1229b(d)(1).6 e.g., re longer qualify immigra- as convictions See, Mandigma, dissent, Contrary Lujan-Armendariz to the assertion of the our of this test in cation is Lujan-Armendariz approach entirely hardly revisiting con in reason for a decision that good sistent recent en banc with our decision has been law in our circuit for almost a (9th Mukasey, 554 F.3d Cir. Abebe decade. banc) 2009) (en curiam). (per None The out-of-circuit cases cited the dissent Lujan-Ar statutory provisions before us in provide revisiting also fail a reason for at issue in id. at was Abebe. See mendariz Lujan-Armendariz. See id. 4277-78. (addressing whether 1204-06 While some of our sister circuits have reached eligible discretionary of de waiver different conclusions as to what constitutes portation Immigration under former and Na "conviction” for 212(c), 1182(c) (re tionality Act law, compelled we are nonetheless to follow therefore, 1996)). pealed surprisingly, Not Lujan-Armen- the well-reasoned conclusion Lujan-Armendariz we did not address dariz, panels as other of our court have done. progeny. The at of its dissent nevertheless See, e.g., Cardenas-Uriarte v. tempts to a conflict where none manufacture (9th Cir.2000). 1136-37 by repeatedly quoting in fact exists out of acknowledges 6. The dissent that the BIA re- general context Abebe. two statements from only grounds lied these rejecting .two 817-18, See Dissent 821-22. state Neither appeal, Ramirez-Altamirano’s and that our Lujan-Ar ment undermines decision in grounds review is limited to the on which the First, quotes or here. dissent mendariz relied; actually yet, pro- BIA it nevertheless proposition Abebe for the unremarkable " analyze ceeds issue that BIA did not ‘Congress particularly sweep broad and even mention—whether an alien who receives ing powers immigration, when it comes to jail, opposed proba- a term of term and is therefore entitled to an additional tion, qualified could have for and received legislates measure of deference when it as to expungement of the admission, exclusion, removal, offense under the FFOA. naturalization ” yet See Dissent at 818-20. issue has This to pertaining to Id. at or other matters aliens.’ circuit, Abebe, 1205-06). squarely be addressed in our see Lu- (quoting 817 554 F.3d at jan-Armendariz, 222 738 n. F.3d at and congressional The extensive discussion of in we not bound to follow the decisions Lujan-Armendariz tent in demonstrates our circuits, reached a few of sweeping our sister see awareness of these "broad and cases). 736-37, 742, See, (citing powers." e.g., Dissent 818-20 In 222 F.3d at event, Second, rely the BIA on 745. the dissent Abebe's because did not the fact relies on (which articulation the rational that Ramirez-Altamirano received a sentence of basis test Supreme days’ imprisonment rejecting the articula of five in consistent with Court's his tion), support argument appeal, open "we [must] to its that we do not reach the left Andia, Lujan-Armendariz.” Lujan-Armendariz. revisit Dissent 817. See 359 F.3d at However, ("In BIA, Lujan-Armendariz reviewing both 1184 the decision of the opinion employ very quoted only grounds upon by the the relied test consider Instead, simply disagrees agency."). dissent. That dissent we remand to the three-judge panel’s appli- with the unanimous BIA to consider this issue in the first instance. 808 (BIA of a ered “convicted” controlled substance 2008 WL A43 022

No. 2008) (“[T]he possession respondent’s offense Id. purposes. Lujam-Armen- [expunged “[wjhere under Therefore, offense possession drug of him inadmissible to not make does dariz] a less than paraphernalia is serious offense 212(a)(2) under section the United States simple possession of substance controlled Act, rule stop-time did not of ..., intent that it congressional indicates respondent’s continuous resi- end the should be included the [FFOA].” ”). .... dence That reasoning Cardenas-Uriarte to the case is applies squarely facts of this Paraphernalia Drug B. Possession of disputed by dissenting colleague. Lujam-Ar distinguished The IJ See Dissent at 4281. Ramirez-Altamirano that Ramirez ground on the mendariz originally charged posses- was both with possession of of Altamirano was convicted drugs sion of under California Health and drug paraphernalia, ap while FFOA Safety possession Code section only charged pos with plies offenders drug paraphernalia of under section 11364 drugs. rejected the session of We identi code. same Ramirez-Altamirano Cardenas-Uriarte, argument cal guilty only drug to the eventually pled there is no F.3d at 1137. Because rational paraphernalia charge, a un- misdemeanor treating guilty basis for individuals found more possessing drug paraphernalia Safety of der state law. See Cal. Health & harshly guilty than found of possess those pled If he 11364. had instead themselves, again actual ing drugs serious guilty drug possession the more reject denying this reason as a basis for charge, Ramirez-Altamirano’s conviction Ramirez-Altamirano relief. would him qualified have for relief Cardenas-Uriarte, plea FFOA. The structure of his was two originally charged agreement obviously with counts of was to min- intended possession drugs eventually pled but by allowing imize him to culpability his possession guilty to the lesser offense facing drug posses- the more avoid serious paraphernalia. 227 F.3d at charge, sion and reflects view the state’s that, face, noted its We FFOA toas the seriousness of the offense. We only appears cover individuals found can rational conceive of no basis for treat- actual guilty drug possession. Id. How- ing harshly Ramirez-Altamirano more ever, Congress had no need to include than a guilty federal defendant found possession drug paraphernalia explicitly drugs eligible for possessing who would be under the FFOA because no federal stat- immigration relief under the FFOA. possession ute made such a crime. Id. We acknowledged in We Cardenas-Uriarte drug paraphernalia held that a criminalizing posses- state statute implicitly included under the FFOA could, sion of in theo- drug paraphernalia otherwise because conclude “would frus- ry, criminalizing than more serious one congressional intent and trate lead to simple at 1137 drug possession. Congress absurd result.” Id. intended the n. example, imagined 6. As an a statute provide FFOA to relief for first-time of- “possession criminalized of the also drug fenders convicted of the least serious machinery ingredients and to create meth- Id. It offenses. would be absurd result amphetamine.” agree Id. We continue to drug guilty posses- if a defendant found that, exists, if such a statute convictions relief, qualify would for FFOA but sion might meaningfully thereunder be distin- pled only possession guilty one who drug possession drug paraphernalia guished would still be consid- from the convic- an improper ground upon under the also eligible tions for relief FFOA However, deny Ramirez-Altamirano relief. exception. California stat- Ramirez-Altamirano was ute under which expunge We note that the title of the raise such convicted does not concerns. ment order does not reflect the nature of Safety Health and Code section California the order itself. The state court order is only possession of a prohibits entitled “ORDER ACCU DISMISSING contrivance, “device, instrument, para- or SATION AGAINST PROBATIONER unlawfully phernalia injecting used for or [PENAL CODE This descrip 1203.4a].” smoking” certain controlled substances. If tion oxymoronic, California because Pe Congress “permit[ the FFOA to ] intended nal applies only Code section 1203.4a commit who drug first-time offenders granted probation.” defendants “not drug type least serious offense to avoid 1203.4a(a). Cal.Penal Code The similar consequences” the drastic that follow from expungement probation relief accorded to conviction, Lujan-Armendariz, a criminal ers is set forth in Penal California deny F.3d at it would be absurd to Moreover, section 1203.4, 1203.4. section possess who relief to individuals the uten- 1203.4a, requires unlike section drug ingestion grant sils incidental to but order state that it “does not relieve [the relief to the actual possess those who illicit probationer] obligation to disclose Therefore, under Cardenas-Ur- drugs. the conviction in response direct iarte, persons convicted of question any questionnaire contained or paraphernalia under California application office, public for licensure Safety Health and Code section 11364 by any agency, state or local or for con eligible tracting for the same treat- Lottery.” with the California State 1203.4(a). drug possession ment as those convicted of court’s order verbatim, and the recited this text nearly suggest under the IJ erred as a ing that by denying actually matter of law Ramirez-Altami- Ramirez-Altamirano granted relief application for under section 1203.4 and rano’s cancellation of re- caption’s description of the order ground. moval on this misstates applicable statute. Expungement C. The Terms of statute, Under either the set-aside con Law State viction retains certain residual conse alternative, In the the IJ found quences under state law. Under Califor that Ramirez-Altamirano’s conviction was nia Vehicle Code section relief ' granted under either section 1203.4 or sec itself, because order “[t]he [state court] tion 1203.4a will not reinstate a defen plain language, its shows that even for the driving they dant’s if privileges were re California, the respondent State of has a suspended voked or aas result of the conviction, for disclosing it for least original certain conviction. For violent of office, seeking public by any a license fenses, may prohibited defendant still State and for agency, or local even con from possessing controlling a firearm tracting lottery.” with the State California after his conviction is under sec dismissed Because critical 12021.1(a). “the is not the tion 1203.4a. Cal.Penal Code convictions, nature of the state’s statute above, As described set aside did,” Lu petitioner] but rather what [the under section must be 1203.4 disclosed on jan-Armendariz, 222 F.3d at 738 n. certain questionnaires. Finally,.under ei (alteration (internal statute, in original) quotation prior ther set-aside conviction omitted), may “pleaded marks conclude that if proved” this was and the defen- 810 was question in that if the statute in another offense even for prosecuted is

dant 1203.4, §§ the was. no broader than there Cal.Penal Code future. the Garberding re- excep- denying narrow rational for than these basis Other 1203.4a. however, posses- dictate that conviction for tions, both statutes lief because her state from all her penal- marijuana qualified released would have “be sion the defendant resulting from of- the the had it been disabilities for relief under FFOA ties and has been convict- federally. he or she 1190-91. The brought fense of which at 1203.4a(a). 1203.4(a), §§ consequences ed.” Id. set-aside not turn whether it conviction could never addressed ex- Although have in a reha- happened to occur state whose extent to which the plicitly counterpart anwas exact bilitation statute state be- “expunged” under law must be the Id. at 1191. FFOA. the concerns invoking equal protection fore our Lujaiv-Armendariz, articulated subsequent cases, In we reiterated on wheth- analysis consistently has focused that “the relevant is whether the eligible have been aliens “would er person could have received relief involved the had their under offenses [FFOA] relief under and does receive relief [FFOA] Luj crimes,” 222 prosecuted as federal been under a state rehabilitative statute.” than on the intricacies at rather F.3d 18; an-Armendariz, 222 at n. F.3d 738 ques- rehabilitative statutes in of the state Cardenas-Uriarte, 227 F.3d see also n. tion, at 738 id. (“If petitioner] 1136 would have been [the eligible for first offender treatment under equal protection first addressed We law, federal he would not ‘convicted’ stand Garberding, ramifications the FFOA laws.”); time, At that the BIA had F.3d 1187. 30 Dillingham v. 267 F.3d acknowledged granted that an alien long (9th Cir.2001) (“[T]he may not dis INS not under the FFOA did have a relief aliens of sim against criminate convicted immigration purposes, “conviction” subsequent ple offenses whose similarly held granted that defendants qualified have them for conduct would counterpart under state to the relief rehabilitation, FFOA the fact but for given should be same treat FFOA Deris, they un 20 I. N. were convicted rehabilitated ment. See Matter & (BIA 1989); of Werk, sovereign.”). Matter 16 der laws of another Sim Dec. (BIA 1977) (con ilarly, treat when we have denied FFOA I. & N. Dec. 236-37 law, ment an alien state predecessor statute the cur convicted under cerning FFOA). However, consistently it has been determining because alien rent would have been for relief eligible a state was covered whether defendant rule, cases, In this generally BIA the FFOA. some focused procedural of the state reha because the conviction itself fell outside on the details See, In the scope e.g., statute in Garberd of the FFOA. de Jesus question. bilitative Melendez, example, (concerning BIA had 1025-26 ing, for concluded conviction); a second controlled that Montana’s rehabilitative statute was substance Aguiluz-Arellano, to the at 983-84 counterpart” not a “state FFOA F.3d (same); Ramirez-Castro, F.3d at applied range because it to a broad simple drug (concerning weapon than a concealed convict offenses more serious ion).7 case, possession. 30 at 1189-90. held In another it was because the We deportable by er his 7. The dissent's reliance on was found reason of Ramirez-Castro misleading. carrying misplaced See court both Dissent misdemeanor conviction Ramirez-Castro, weapon. 287 petition- at 4283-85. concealed F.3d at 1173. After yet eligible for rehabilitative game alien was and fish commission. Ariz.Rev.Stat. 907(C)(1)—(2)(2006). Ashcroft, relief. See Chavez-Perez v. The statute 13— (9th Cir.2004); F.3d 1290-93 see also also allows dismissed convictions to “be (“It defy pleaded id. at 1292-93 would common proved any subsequent require prosecution sense to the INS to sit on its ... offense.” 13-907(C)(1). years, waiting hands for three to see explic- Cardenas-Uriarte comply itly will with exceptions, whether Chavez-Perez mentioned these probation perhaps Lujan-Armendariz the terms of his at similarly qualify expungement.”). for future noted that “subject the statute was here,” exceptions some not relevant Moreover, frequently have found added). at (emphasis F.3d 733 n. 6 protection principles required that equal treating drug possession convictions argues The dissent that Garberding, Lu- “expunged” immigration purposes jan-Armendariz, and Cardenas-Uriarte retained “inapposite! even when convictions certain because in none ] of them consequences under state law. The Mon- did we consider or even mention the extent tana which Garberding statute under was to which expungement the state scheme granted specifically “pub- relief allows for removed the consequences of a conviction.” lic access to related to the the[records Dissent at 4285. The dissent’s cramped ... charge] dismissed district court reading of these unpersuasive. cases is upon good order cause shown.” Mont. repeatedly We have found that an individ- 46-18-204; Ann. Garberding, 30 ual can be considered to have “receivefd] Similarly, Lujan-Ar- F.3d at 1189. both relief under a state rehabilitative statute” mendariz and Cardenas-Uriarte involved even when the statute in does not statute, Arizona’s rehabilitative expunge con- a conviction for all purposes.8 exceptions tains similar to Lujan-Armendariz, those 738 n. 18. California statute issue here. The Ari- That explicitly we did not discuss the specifically zona statute exempts scope certain expungement statutes in these penalties release, and disabilities from in- cases does not change the fact that we cluding imposed by several the state’s de- concluded Lujartr-Armendariz applied not- partment transportation and the state’s withstanding statutory exceptions. expunged pursuant his conviction was to Cal- purposes mains a conviction for of federal 1203.4, peti- ifornia Penal Code section law.” Id. What the dissent fails to make BIA, reopen tioner filed a motion with the analysis clear is that our of section 1203.4 appeal, peti- which was denied. Id. On only provided relevant to whether it argued expungement tioner that the of his independent treating basis for conviction nullified it for of immi- words, expunged. his conviction as In other gration rejecting law. Id. at 1174. petitioner’s had the conviction been within argument, petitioner’s we first determined the scope of the he would have been firearms conviction was “not within the eligible holding for relief based on our scope Only Id. at [FFOA].” after Lujan-Armendariz. reaching this conclusion did we turn to the question of whether section 1203.4 could discussed, already 8. As we have the statute at completely eliminate conse- expunges issue a conviction for almost all conviction, quences of a state which we an- purposes, consequences save a few residual negative. swered in the Id. We reasoned that state law. See Cal.Penal Code view of the “[i]n fact that California Penal 1203.4, §§ 1203.4(a) 1203.4a. The dissent’s reference to provides only Code section a limit- law, provided "the limited nature of the relief ed even under state it is misleading. section 1203.4a”

reasonable for the BIA to conclude that a is thus Dissent provision under that re- at 821. 1203.4a(a). 1203.4(a), Because §§ opinion mischaracterizes The dissent his majority! suggest[s] minimal, consequences of ] “the residual that the stating in the provided relief scope are not relevant that under state law Dissent is irrelevant.” statute here, denying in Ramirez- erred the IJ Ramirez-Altamira- that finding ground. that application on Altamirano’s sufficiently expunged, no’s conviction to re- is thus entitled Ramirez-Altamirano exceptions conclude we do not his Lujan-ArniendaHz, unless lief statute will expungement in an contained preclud- have five-day jail sentence would Rather, we limit our relevant. never be qualifying him for ed from must, before to the statute analysis, as BIA has not FFOA. Because the under the conse- few residual us, that the and hold issue, we do not decide this yet considered in this statute do not quences contained it here. for eligibility alter Ramirez-Altamirano’s relief. IY. CONCLUSION Lu apply thus bound

areWe that “the rele holding javr-Armendariz’s convic- set-aside Ramirez-AItamirano’s person in is whether vant drug paraphernalia, for possession tion relief under have received volved could does not bar his expunged, which has been relief under does receive [FFOA] Lujan-ArmendaHz. The IJ relief under 222 F.3d at statute.” state rehabilitative finding in BIA therefore erred and the Accordingly, an alien cannot be 738 n. 18. statutorily ineligible Ramirez-Altamirano pur deemed “convicted” on the basis of for cancellation of removal (1) if he can demonstrate poses finding that the con- that conviction and (2) offense; had first he conviction was his the accrual of his “con- viction terminated accorded first offender previously been (3) presence” the United treatment; pos physical was for tinuous his conviction or lesser drugs, equivalent or an the instant Accordingly, grant session States. drug paraphernalia, charge as such BIA. re- and remand to the On petition 7 F.3d at Cardenas-Uriarte, 22 mand, BIA should consider whether (4) 1137-38; relief under he received un- qualifies for relief Ramirez-Altamirano statute. state rehabilitative Lujan-ArmendaHz even though he der meets each of sentence, Ramirez-Altamirano jail opposed received a placing him requirements, three first BIA should consider probation. The also exactly position of federal defendants is otherwise whether Ramirez-Altamirano He for relief under the FFOA.9 eligible relief, and, so, if should exer- eligible for under a state granted relief also been to determine whether cise its discretion Ramirez-Altamira- rehabilitative statute. requested relief. grant the all penalties “released from no was GRANTED; REMANDED PETITION resulting from the offense of disabilities proceedings. further he ... convicted.” CaLPenal [was] 3607(c). youthful airests in See mistakenly argues that to offenders' government 9. The 4; also eligible relief under the one Manrique, & N. Dec. at 61 n. 21 I. Matter of twenty-one years old at the Paredes-Urrestarazu, (con- must be under at 812 cf. sidering making argument, time of the offense. In 3607(c)'s peti- age cutoff where the government general deferred conflates the challenging the IJ’s consideration tioner was 3607(a) adjudication provision in 18 U.S.C. arrest). prior of a of the circumstances provision expunging special with IKUTA, offense, Judge, dissenting: Circuit related as defined in 8 U.S.C. 1182(a)(2) 1227(a)(2). and 8 U.S.C. majority holds that an alien convict- 1229b(b)(l)(C). See 8 U.S.C. Under the the state offense of ed of conviction, INA definition of an alien has a drug paraphernalia given and limited relief “conviction” whether or not the alien’s sen expungement under a state scheme does subsequently tence is expunged. See 8 purposes not have a “conviction” for 1101(a)(48)(A). Yet, determining whether an alien is inadmissi- beginning U.S.C. 1182(a)(2) deporta- ble under 8 U.S.C. or with our 1994 decision Garberding v. 1227(a)(2). ble under 8 U.S.C. Accord- (9th INS, Cir.1994), 30 F.3d 1187 we have ing majority, Equal to the Protection step-by-step rewritten the definition of compels this ruling, Clause because aliens “conviction” for purposes of immigration of certain drug convicted federal crimes law. Previous cases detail process, expunged under the Federal First Offend- see, e.g., Chavez-Perez Ashcroft, v. 386 (FFOA) er Act do not have a “conviction” (9th 1284, Cir.2004), Lujan- 1287-90 determining inadmissibility 728, Armendariz v. 222 F.3d 734-43 1182(a)(2) §§ deportability or (9th Cir.2000), but a brief review is neces 1227(a)(2). majority wrong. The is The sary why, to understand even in light of Equal compel Protection Clause does not existing precedent, majority now ex us to invalidate a distinction between equal protection tends our jurisprudence aliens who receive relief under the FFOA too far. and aliens who receive relief under state “[djistinctions law, because between differ- A ent classes of aliens in the 241(a)(11) Section subject Immigration are context to rational basis review upheld they rationally and must be if Nationality 1952, 204, Act of 66 Stat. a legitimate government pur- related to 1251(a)(11)(1952), codified pro pose.” Aguilera-Montero v. Mukasey, any vided that alien “convicted of a viola (9th Cir.2008) 1248, 1252 (quoting 548 F.3d of, violate, tion or a conspiracy law Mukasey, 1037, Avila-Sanchez or regulation relating to the illicit posses (9th Cir.2007)). 1041 may Before we inval- sion of or traffic in narcotic drugs” or distinction, wholly idate such must “be subject other crimes deporta (quoting irrational.” de Martinez v. upon tion order of the Attorney General. (9th Cir.2004)). Ashcroft, 374 F.3d A-F-, Matter 8 I. & N. Dec. Here, there is a rational reason to distin- (1959) Gen.). (Att’y time, At that the Act guish between aliens whose convictions are did not define the words “convicted” or expunged under the FFOA and those who “conviction.” In the Attorney Gen limited obtain relief under the sort of state that, eral position given took the the “con I scheme issue this case. therefore tinuing and serious Federal concern” re respectfully dissent. garding drug trafficking, “Congress did not intend that aliens convicted of narcotic I escape deportation violations should be Immigration Nationality Act cause, California, inas the State affords a Attorney authorizes the General to cancel procedure authorizing a technical erasure qualified removal of a alien who is inadmis- of the conviction.” Id. at 445. to, from, deportable sible the United 1970, Congress enacted the FFOA to eligible 1229b. To be States. U.S.C. relief, must, provide relief for persons convicted of among for this alien other sim- things, drug- ple possession not have a conviction for a of a controlled substance as con- disagreed, original). We of this terations In consideration

a first offense. Garberding a conviction enactment, “distinguishing held that cluding the BIA “under a FFOA or because of the breadth deportation counterpart” of the law which statute, be- Montana’s the basis for not serve FFOA could did, logical rela- she has no cause of what Werk, N. 16 I. & Matter deportation. the immi- fair administration of tion to the 1977). (BIA subsequent aIn Dec. laws.” Id. at 1191. Unable gration Mary- effect of regarding decision distinguishing a rational basis for discern statute, BIA clari- the expungement land expungement a and state between federal counter- “state law meaning of fied the of- (notwithstanding the reason scheme applies that “if a statute by holding part” held that the government), the fered drug viola- serious of more to offenders Garberding’s deportation violat- order for to the tions, considered not be will under the right equal protection her ed the Matter [FFOA].” equivalent state of F.3d at Garberding, 30 Constitution. 1989). (BIA Deris, Dec. 20 I. & N. 1190-91. determination, the BIA light In of this that, Maryland expunge- the held because Garberding, the BIA reexam- Following persons covered at issue ment statute held that “an alien position ined its and offenses that substance guilty of controlled treat- accorded rehabilitative who has been simple possession, than more serious were will not be ment under a state statute counterpart. as a state qualify it did not if he establishes that he would deported at 11. Id. eligible for federal first offender have been we re- Garberding, 30 F.3d In provisions under the of 18 treatment equal protection jected this conclusion (1988) 3607(a) prose- had he been U.S.C. ease, petitioner In that the grounds. Man- under federal law.” Matter cuted of marijuana charge to a of pleaded guilty (1995). A 21 I. N. Dec. rique, & law, but was under Montana however, Congress year Manrique, after and guilty plea her allowed to withdraw Reform Illegal Immigration enacted under Mon- charge have her dismissed Act of 1996 Immigrant Responsibility Because a expungement statute. tana’s (IIRIRA), substantially amended eligible offenses was range of more serious changes, Congress Among the INA. other the BIA held that expungement, statutory of provided a definition “convic- not an exact counter- statute was Montana tion”: and thus part of means, re- The term “conviction” with govern- deportable. Id. at 1188. The was alien, judgment an a formal spect distinction was ment contended that or, if by a court guilt of the alien entered differing goals rational “because withheld, adjudication guilt has been under the Federal First results that obtain statute, opposed to broader Offender as where— remedies,” id. at 1190 expunction state (i) found the alien judge jury or (internal omitted), marks and be- quotation plea alien has entered a guilty or the policy requiring “its an exact cause or has admit- guilty or nolo contendere Congres- counterpart effects consistent finding sufficient facts to warrant ted harshly policy to deal with sional guilt, immigration laws offenders (ii) form of judge has ordered some who vio- strictly to deal with aliens [and] or restraint on the punishment, penalty, governing late controlled substances.” laws omitted) (al- (internal liberty imposed. to be alien’s quotation marks 1101(a)(48)(A). 3607(b)), plain U.S.C. As we construed the FFOA clear, carving exception of this section makes out an language the definition 1101(a)(48)(A). guilty, guilty, Id. pleads alien who is found of “conviction” Second, subject penalty to a ordered and is because conviction that court, purposes qualified expungement is considered convicted for light law. of this new FFOA would not count as a conviction for definition, purposes 1227(a)(2)(B), the BIA reexamined its treat- of 8 U.S.C. and held that principles equal protection ment of state statutes in Manrique required held that the decision “the benefits of the Act be ex- superseded by IIRIRA: tended to aliens whose offenses are ex- laws, punged under state rehabilitative interpret

We therefore the new defini- provided they eligi- would have been provide tion to that an alien is consid- ble relief under the Act had their of- ered convicted prosecuted fenses been as federal crimes.” upon the initial satisfaction of the re- Lujan-Armendariz, 101(a)(48)(A) F.3d at 749. We quirements of section of stated, “there is no rational basis for a Act, that he remains convicted federal statute that persons treats ad- notwithstanding subsequent a state ac- judged guilty a drug of offense under state purporting tion to erase all evidence of harshly law more persons than adjudged original guilt determination guilty of the identical through procedure. a rehabilitative offense under federal law.” Roldan-Santoyo, Matter 22 I. & N. (BIA 1999). Dec. subsequent Our decision in Cardenas- (9th Uriarte 227 F.3d 1132 Cir. in Lujan-Armendariz, rejected But we 2000) Lujan-Armendariz extended fur There, reasoning. petitioner the BIA’s a Cardenas-Uriarie, In rejected ther. we attempted possession convicted of of co petitioner BIA’s determination that a challenged caine the BIA’s determination who had possession been convicted of deportability 1227(a)(2)(B) (a drug paraphernalia law, under Arizona successor to section INA)1 241(a)(11) subsequently had his conviction of the after Arizona va scheme, under a state deportable un cated his conviction and dismissed the 1227(a)(2)(B)(i) der 8 U.S.C charges pursuant having to an stat disagreement relating ute. 222 F.3d at 733. committed crime to a controlled Our Id. at 1137-38. BIA two-step Although with the was based on a substance. First, Imjan-Armendariz analy analysis. reasoning step after that Con first gress’s required definition of “conviction” in 8 sis to have been 1101(a)(48)(A) repeal by U.S.C. did not “adjudged guilty of the identical offense implication protection law,” afforded under federal 222 F.3d at offenders, namely, bypassed FFOA first that a this “identical require offense” 3607(a) Instead, disposition “shall not be consid ment. Congress we inferred that purpose ered a conviction for the of a would have intended that a conviction for disqualification disability imposed by possession or of drug paraphernalia should be crime, conviction of a upon any law or for included under the FFOA when it is “a id. at 744 purpose,” (citing other less serious than simple possession U.S.C. offense 1227(a)(2)(B)(i) violate) provides, per- conspiracy attempt any 1. 8 U.S.C. or law State, States, part, regulation tinent that: aof the United or a foreign country relating Any to a controlled alien who at time after admission sub- (or deportable. ... has been convicted of a violation stance “[ujnder rational- gument. Noting that Cardenas-Ur- a controlled substance.” review, up- must be there, basis classification iarte, 1137. From if equal protection challenge held against anal- equal protection that the determined any reasonably conceivable state there is applied even Lujam-Armendariz ysis a rational basis provide of facts that could was not an of- offense though petitioner’s classification,” (quot- id. at 226-27 for the for relief qualified that could have fense Communications, Inc., ing FCC v. Beach Id. at 1137-38. FFOA. under the 307, 313, 508 U.S. 113 S.Ct. today, an sum, the decision before (1993)), con- L.Ed.2d 211 the Third Circuit for immi have a “conviction” alien did not cluded: (1) “adjudged guilty” if: gration purposes a rational basis for a easily can see [W]e to an that was identical of a state crime crimi between aliens whose distinction law, Lujan-Arme offense under federal under the feder nal cases are dismissed ndariz, or of the state 222 F.3d at charges those whose are al FFOA and drug parapherna offense of under similar state schemes. handled 1137; Cardenas-Uriarte, lia, 227 F.3d at of the feder operation Familiar with the (2) expunged under state the offense was justice system, Congress al criminal (3) law; qualified would have the alien that aliens whose thought could have expungement of this of for and received under the charges federal are dismissed prose had it the FFOA been fense under unlikely present a substan FFOA crime, Lujan-Armen a federal cuted as committing subsequent tial threat of ser dariz, 222 F.3d at 749. contrast, By Congress may crimes. ious operation have been unfamiliar with the B that the of state schemes resemble rejected Lujan-Armendar- BIA the Congress could have worried FFOA. Salazar-Regi- analysis. iz See Matter of justice systems, that criminal un (2002) no, (concluding 23 I. & N. Dec. 223 by heavy the created case pressure der Circuit, that, in Ninth a first- “except loads, permit dangerous offenders might offense ex- simple possession time possession down to plead simple punged under a state rehabilitative statute charges advantage and take of those 101(a)(48)(A) is a conviction under section escape state schemes to what is consid Act”). law. Par ered a conviction under state ticularly Congress’s power in view of Ashcroft, v. the Third Circuit Acosta matters, plain it seems that rejected approach. our 341 F.3d 218 also Cir.2003). rational-basis review is satisfied here. (3rd case, petitioner In that noted, recently Supreme As the Court pleaded charge nolo contendere to power over the exercise of its broad “[i]n Pennsyl- heroin in violation of immigration, and naturalization Con vania Id. at 220. The state court law. regularly makes rules that would gress probation, subsequently him on and placed unacceptable applied if to citizens.” against him without charges dismissed Kim, 510, v. 538 123 S.Ct. Demore U.S. adjudication BIA guilt. an After the (2003). 1708, 155L.Ed.2d 724 proceeding ruled that constituted Cir.2003). (3rd 218, 341 227 F.3d immigration purposes, “conviction” for argued exception for an to the Other circuits that have considered equal definition “conviction” based of IIRIRA’s definition of “convic- effect interpreted in Lu- protection principles, rejected approach. have our tion” likewise (now Ashcroft, jan-Armendariz. Judge at 224. v. 383 See Madriz-Alvarado Cir.2004) (5th Justice) 321, (rejecting Lu- rejected petitioner’s Alito ar- F.3d 332 equal protection analy powers immigration, when it comes to jan-Armendariz’s and appeals have all the courts of which is sis “as therefore entitled to additional meas- it,” that an stating have considered ure of legislates deference when it as to on the equal protection challenge admission, exclusion, removal, based naturaliza- merit”); FFOA “is without Resendiz-Al tion or other pertaining matters to aliens.” Gen., Att’y Abebe, caraz v. U.S. 554 F.3d at 1205-06. Once we iden- Cir.2004) (11th (rejecting Lujan-Ar tify “a rational Congress may reason have equal protection analysis mendariz’s be law],” in adopting analysis had [the cause “a rational basis exists for distin must end. Id. This conclusion is consis- guishing charges between aliens whose tent with direction from Supreme dismissed under the FFOA and those In determining Court. whether a federal charges whose are dismissed under state “allowing classification benefits to some statutes”); Elkins v. rehabilitative Comf permissible,” aliens but not to others is (10th Cir.2004) 1159, 1163-64 ort, 392 F.3d must not judgment “substitute our for that cir (noting “prevailing view other Diaz, Congress.” Mathews v. 426 U.S. cuits” that “there is a rational basis for 1883, 1892, 1893, 96 S.Ct. 48 L.Ed.2d distinguishing dispositions even state-court (1976); see also F.C.C. Beach Com- FFOA,” holding from those munications, Inc., 307, 313, 508 U.S. denying a rational basis for there is (1993) S.Ct. 124 L.Ed.2d 211 petitioner convicted under Korean law the (“Whether embodied the Fourteenth FFOA); Ashcroft, benefit of the Gill v. Fifth, Amendment or inferred from the (7th Cir.2003) (rejecting 577-78 equal protection not a license for courts Dajan-Armendariz’s analysis noting wisdom, fairness, to judge the logic every other court that has considered legislative choices. In areas of social and subject concluded state law policy, economic a statutory classification negate “do not a ‘conviction’ expungements proceeds that neither along suspect lines law”); see infringes nor fundamental constitutional INS, Vasquez-Velezmoro also 281 F.3d rights upheld against equal must be pro- (8th Cir.2002) (declining adopt to tection if challenge any reasonably there is holding reasoning Lujan-Ar of conceivable state of that pro- facts could mendañz, but that concluding petitioner’s vide a rational basis for the classifica- equal protection claim failed because tion.”). Here, as Acosta and the decisions similarly was not situated to a clear, from easy other circuits make it is treatment); person eligible for FFOA identify making rational reason for “a Herrera-Inirio v. 309 distinction between aliens whose criminal (1st Cir.2000) (holding that cases are dismissed under the federal 1101(a)(48)(A) passes rational basis re FFOA and charges those whose are han- in view the context of a substantive due dled under similar state schemes.” Acos- process challenge because it advances “the ta, 341 at 227. Accordingly, our en government’s nationally need for a uniform banc decision in Supreme Abebe and the definition of the term ‘conviction’for immi equal protection jurisprudence Court’s gration purposes”). Lujam-Armendar- counsel that revisit iz, not that we extend further important,

More our in its errone- approach Lujan- ous that Equal Armendariz is determination Protec- inconsistent with our en compels tion Clause us to exclude Mukasey, banc decision Abebe v. from the (9th Cir.2009) (en banc) F.3d 1203 definition of “conviction” in (per curiam). 1101(a)(48)(A) case, In that we noted that “Con- certain state convic- gress particularly sweeping broad and tions under state law. response to disclose conviction in

II any any ques- direct contained in equal not if we do revisit But even office, public tionnaire or for application which has roamed far protection analysis, by any agency, for licensure state local o[r] by Supreme set from the standards contracting or for with the California State Court, conclude that Ramirez is I would Lottery.” relief not entitled In his hearing before the or the Protec- Equal case law either our (IJ), judge sought Ramirez relief for The basis this conclusion tion Clause. form of cancellation of removal under 8 simply Ramirez did not straightforward: 1229b(b). The held that U.S.C. IJ Ra- to that analogous provided obtain relief mirez did form of qualify not for this relief the FFOA. his because conviction “still exists state Immigration The IJ purposes.” noted 1993, Ramirez was convicted under In granting that the court’s order Ra- of the California Health and section 11364 a remedy mirez under section 1203.4a of Safety drug para- “shows even for the State of Califor- phernalia days and was sentenced to five nia, conviction, respondent has in jail. subsequently granted Ramirez was office, least for disclosing public section 1203.4a of the Califor- relief under , seeking a license State or [sic] local Code,2 provides nia Penal agency, contracting for even with the convicted of misdemeanor and defendant lottery.” BIA California State af- probation can granted “be released firmed, respondent that “the holding failed penalties resulting from all disabilities statutory eligibility to demonstrate of which from the offense he or she has removal,” cancellation he because failed convicted, except provided been sec- carry demonstrating his burden “he tion 12021.1of this code or section 13555 could have requirements satisfied the the Vehicle Code.”3 Cal. Pen.Code the [FFOA] under 18 U.S.C. 3607.” 1203.4a(a). granting Ramirez such relief, imposed court the state additional In analyzing appeal Ramirez’s restrictions, stating: three-prong “[TJhis order does BIA’s denial under the Lu- test, obligation janr-Armendariz not relieve the defendant we first consider Although caption the court order convicted crimes to for certain violent own or granting dismissing firearm, relief refers to "order ac- possess notwithstanding whether against probationer,” cusation the reference person received relief under section probationer appears to Ramirez as to be a 1203.4a. the California Section 13555 of Vehi- scrivener's error. The court order otherwise provides: cle Code 1203.4a, correctly references section and re- probation A termination of and dismissal of granted lief was under section 1203.4a. Sec- charges pursuant to Section 1203.4 aor 1203.4a of the tion California Penal Code charges pursuant dismissal of to Section expungement allows limited for a defendant 1203.4a Code does not of the Penal affect granted convicted of misdemeanor and not probation, suspension privi- while section 1203.4 revocation or of the of the Califor- expungement lege nia Penal Code allows limited person to drive a convicted mo- for defendant who fulfilled the condi- chapter. per- tor Such vehicle under this probation. tions Because was Ramirez prior son's conviction shall considered a time, jail probation, sentenced to purpose revoking conviction for the grant only court would be authorized relief limiting privi- suspending such or otherwise under section 1203.4a. lege ground or more of two convic- tions. of the Section 12021.1 California Penal provides felony persons that it is a “adjudged guilty” (holding person of 697 that a sentenced to ten whether Ramirez was years probation that was identical to an offense a Texas court would an offense relief, Lujan-Armendariz, eligible law. not be for FFOA and “[t]his under federal ques to this difference in is a rational 222 F.3d at 749. The answer sentences basis treating petitioner differently adjudged Ramirez was not from an tion is no. offense that would alien whose conviction is under guilty drug-related of a FFOA.”); Elkins, expungement. Our case 392 F.3d at 1163 qualify for FFOA (10th Cir.2004) (as above), law, requires (holding us there is a however noted petitioner rational for denying conclude that Ramirez’s conviction basis in an offense of benefits the FFOA the state prong proceeding petitioner subject of the because paraphernalia satisfies Cardenas-Uriarte, sentence, two-year suspension to a test. See 227 F.3d rath than probation). Lujan-Armendar er 1137-38. iz, expressly left open. this issue Lu moment, Skipping ahead for a a similar jan-Armendariz, 222 F.3d at 738 n. 18 prong under the third of the result occurs that, (holding because the test, which addresses the whether only probation, case was sentenced qualified alien would have for and re we did not need to decide whether a per expungement of the ceived offense subject imprisonment son qualify could Lujan-Armendariz, the FFOA. See relief). Ramirez fails to meet the re Here, F.3d at 749. the answer is also no. quirement prong of the third of the Lu applies only to defendants who FFOA jan-Armendariz test. deficiency This probation a term of of not have received however, analysis, not relevant to our be 3607(a); year, more than one rely cause the BIA ground did not on this jail Ramirez received time. Three circuits in rejecting appeal. Ramirez’s See Andia there is a rational basis to distin have held (9th Ashcroft, 359 F.3d Cir. guish between aliens who receive different 2004) that, (holding in reviewing the BIA’s Att’y sentences. See Fernandez-Bernal v. decision, may rely only grounds on the (11th Cir.2001) Gen., 1304, 1317 BIA). upon by relied equal protec not violate (holding does Thus, analysis an alien who tion to treat is sentenced to turns on the second test, years probation jail prong Lujan-Armendariz two and a term of differently receiving requires expungement than an alien FFOA which of an offense relief); Lujan-Armendariz, F.3d at state law.4 Vasquez-Velezmoro, 281 Lujan-Armendar- majority provide 4. The notes that in failed to a rational basis for distin- iz, the state statute did not re- guishing “between aliens whose criminal consequences lieve defendants of all residual cases are dismissed under the federal FFOA Specifically, of their convictions. the ex- charges and those whose are handled under relief, pungement precluded statute in certain Acosta, similar state schemes.” 341 F.3d at cases, department transpor- from various Nevertheless, 227. the situation in this case game penal- tation and fish commission below, explained is different. As section Lujan-Armendariz ties. did not discuss this provides 1203.4a less relief than the ex- statute, aspect expungement of the state stat- Lujan-Armen- pungement at statute issue in ing only exceptions that the statute’s to "the dariz, including depriving certain convicts of ” penalties release ‘from all and disabilities’ right. peti- a constitutional And unlike the were "not relevant here.” 222 F.3d at 733 Lujan-Armendariz, apparently tioner in who Lujan-Armendariz explain why n. 6. Nor does subject consequences, was not to residual pro- the difference between the limited relief subject Ramirez himself was to residual con- expungement vided the Arizona statute sequences. provided by and the full relief the FFOA rule, Yet, general stated that “as a an pass Ramirez cannot We F.3d at 749. a receiving expunged qualifies relief under conviction convic- person this test. A 1101(a)(48)(A), purposes the California Penal tion” for but 1203.4a of section expunge- from a full exception noted that we had carved out an does not benefit Code rather, ment, depending on the cir- general involving this rule “in cases but consequences of cumstances, simple possession retains first-time of narcotics.” contexts, important poten- determining 1174. his conviction 287 F.3d at After eligibility rights such as tially implicating petitioner’s firearms convictionwas not license, application public FFOA, for a driver’s scope within the we went on office, from a local of a license receipt petitioner’s argument to consider that his firearm, of a see agency, prior conviction had been erased for immi- — Heller, v. U.S. District Columbia gration purposes because it had been ex- -, 171 L.Ed.2d 637 128 S.Ct. rejected punged under section 1203.4. We (2008) (holding that the Second Amend- petitioner’s argument, explaining that even right pos- individual’s protects ment “assuming expungement that some state use). There is private a firearm for sess completely eliminate the im- statutes could concluding it is principled no basis migration consequences of a state convic- the limit- distinguish between irrational tion, Penal section 1203.4 California Code statute this case ed state rehabilitation (foot- is not such a statute.” Id. at 1175 provides that a dis- and the omitted). context, In note we found it 3607(a) “shall not be con- position under significant that a defendant retained the purpose of a sidered a conviction for the consequences imposed of a conviction disability imposed by a disqualification or section 13555 of the California Vehicle crime, conviction of or for upon law expunged even after a conviction is 3607(b). purpose.” other Accordingly, under section 1203.4. concluded that view of the fact that majority opposite “[i]n reaches the con- 1203.4(a) First, majori- California Penal Code section clusion for two reasons. only a ty expungement provides expungement limited even claims that section 1203.4 law, under state reasonable for the equivalent to an is under BIA to conclude that a exceptions to relief un- conviction ex- FFOA because narrow, minimal, punged provision remains der section 1203.4a 808-10, Maj. conviction for of federal law.” Op. and residual. at 811. contrary Id. Because Ramirez-Castro involved a This conclusion is to our reason- conviction, firearm did not to ad- have ing Ramirez-Castro (9th Cir.2002). Ramirez-Castro, dress the whether a first-time drug expunged conviction under section petitioner sought deportation to terminate ground prior analogous that his 1203.4 was first-time proceedings on expunged un- the FFOA. firearms conviction had been However, 1203.4(a), holding a statute similar to in Ramirez-Castro der section section 1203.4a.5 indicates that the even more limited ex- 1203.4(a) (the 1203.4a(a) (the Section statute issue in Section statute issue Ramirez-Castro) here) expunge expungement, a de- states that after states that after ment, a "shall be released from defendant "shall thereafter re fendant thereafter penalties resulting penalties leased from all and disabilities re all from disabilities sulting from the offense of which he or she the offense of which he or she has been convicted, convicted, except provided except provided in in Section has been as

Section 13555 of the Vehicle Code." Cal. Pen. 12021.1 of this code or Section 13555 of the 1203.4a(a). 1203.4(a). Vehicle Code.” Cal. Code Pen.Code

821 disagree majority’s sug I also with the equivalent in our case is not pungement expungement. scope provided full that the of relief gestion by the FFOA’s statute irrelevant. The ques the state is Second, majority Lujan- claims that the equal under our protection jurispru tion is met because prong second Armendariz’s dence is whether there is a rational basis by a state scope provided of relief the distinguishing receiving relief aliens important is less expungement statute from receiving under the FFOA aliens re qualify would petitioner than whether the lief under the state rehabilitation A test. Maj. atOp. relief at all. 808-09 for FFOA (“the to completely state’s decision rehabilitate a critical is not the nature rather expungement per the state’s statute but convict reflects its assessment that a ”) (citing Lu petitioner] ‘what did.’ given [the son has reformed and should be 18) at 738 n. jan-Armendariz, F.3d fresh start. A rehabilitation statute that (alteration original). support, in provides only partial or relief limited re majority prior out that in several points flects a different determination. Although BIA required grant decisions majority Lujan-Armendariz, cites petitioners receiving relief to n. proposition laws even relief under state rehabilitative “the critical question is not the nature of at issue did not though the state laws expungement the state’s statute but rather Maj. complete expungement. Op. provide did,” petitioner Maj. Op. what the at 810. we made this statement connection with disagree. I The three cases cited Again, our conclusion that the difference between proposition by majority to buttress this adjudication guilty a deferred in the because in none of them did inapposite, FFOA and the vacatur provided by the extent we consider or even mention the Lujan-Armen Arizona statute at issue in scheme re expungement which the state dariz was irrelevant. Lujan-Armen See consequences of a conviction. moved the dariz, 222 F.3d at n. It does not example, Garberding entirely silent For support majority’s claim that the scope statute, scope of the and did on the provided by expungement of relief a state the Montana quote not even the section of statute is irrelevant. majority. cited See statute Gar case, In this the limited nature of the 1187; berding, 30 F.3d at see also Carden provided by relief section 1203.4a as-Uriarte, (mentioning 227 F.3d at 1138 Penal makes it California “reason petitioner’s conviction was ex able for the BIA to conclude that a convic by section 13-907 of the Arizona punged provision tion under [such a] Code, Revised which allowed convictions remains a conviction for of feder

under the statute to be used as a convic Ramirez-Castro, al law.” 287 F.3d at any subsequent prosecution “in tion (examining language the similar any of person by such the state or its 1203.4(a) section of the California Penal offense,” only but subdivisions for Code). Because there is rational basis to assure ourselves that had distinguish person between Ramirez and a convicted of another controlled not been full expungement who receives under the Arizona). When we substance offense FFOA, the BIA’s determination that Ra scope expungement did address the mirez had a for purposes statute, a state provided 1182(a)(2) 1227(a)(2), Ramirez-Castro, and there see we determined was qualify could not for cancellation of con fore not sufficient to erase the 1229b(b)(1)(C), sequences of the crime. removal Crystal Sugar Company, American equal protection Ramirez’s did not violate Intervenor-Appellee. rights.

No. 07-35971. Ill Appeals, United States Court us, step have led prior decisions Our Ninth Circuit. Congress could to the conclusion

step, Argued Sept. and Submitted 2008. treating rational reason have no under the FFOA to expungement offered Filed Feb. 2009. convicted for certain certain first offenders April Amended differently from a drug crimes federal limited offered under more persons convicted for different

state law to Clearly, we drug crimes. have trav- main task of determin-

eled far from our statutory scheme

ing, “not whether us, but whether we can

makes sense Congress

conceive of a rational reason Abebe, it.”

may adopting have had in By holding at 1205-06. that aliens limited relief under a state

receiving even treated

rehabilitation statute must be

same as first offenders whose convictions expunged by majority

today equal protection further strains yet

jurisprudence step and takes another rewriting the definition of “conviction” 1101(a)(48)(A). respectful-

in 8 U.S.C. I

ly dissent.

AMALGAMATED CO. SUGAR

LLC, Plaintiff-Appellant, * VILSACK; Dept.

Thomas

Agriculture, Defendants-

Appellees, * predeces- Agriculture, pursuant R.App. P. Thomas Vilsack is substituted for his to Fed. sor, Johanns, 43(c)(2). Secretary Mike as United States

Case Details

Case Name: Ramirez-Altamirano v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 14, 2009

Citation: 563 F.3d 800

Docket Number: 06-71445

Court Abbreviation: 9th Cir.