Lead Opinion
Opinion by Judge BERZON; Concurrence by Judge IKUTA.
Wе must decide whether first-time offenders convicted of using or being under the influence of a controlled substance pursuant to Cal. Health & Safety Code § 11550, where such offenders are subsequently granted relief under CaLPenal Code § 1203.4, are eligible for the same immigration treatment as those convicted of simple drug possession whose convictions are expunged under the Federal First Offender Act (FFOA). We hold that they are.
FACTUAL AND PROCEDURAL BACKGROUND
Juan Jose Jimenez Rice is a national and citizen of Mexico. He entered the United States as a visitor on January 19, 1987, with permission to stay until July 18, 1987. He never left. He has two U.S. citizеn children, a 22-year-old daughter and an 18-year-old son.
On September 20, 1999, the former Immigration and Naturalization Service (INS) issued Jimenez a Notice to Appear, charging that he was unlawfully present in the United States and therefore removable. His first removal hearing, in October 1999, was continued so thаt he could apply for cancellation of removal.
In June 2001, Jimenez was charged in a single complaint with two drug offenses: one felony count of possession of cocaine in violation of Cal. Health & Safety Code § 11350(a) and one misdemeanor count of using or being under the influenсe of a stimulant in violation of Cal. Health & Safety Code § 11550. He pleaded nolo contendere and was convicted of both offenses on November 29, 2001. The Superior Court suspended imposition of sentence and admitted him to three years of supervised probation. In June 2003, the court issued a single order under CaLPenal Code § 1203.4 terminating Jimenez’s probation under CaLPenal Code § 1203.3, setting aside his pleas of nolo contendere, entering pleas of not guilty, dismissing the complaint, and releasing him from specified penalties and disabilities resulting from the offenses.
The INS moved to pretеrmit Jimenez’s application for cancellation of removal, asserting, among other things, that the convictions would prevent him from establishing the requisite good moral character. In a May 2004 hearing, the Immigration Judge (IJ) held that Jimenez was statutorily ineligible for cancellation of removal because he could not satisfy the good moral character requirements, specifically section 101(f)(3) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(f)(3), because he had been convicted of violating a controlled substance law as defined in INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A).
The Board of Immigration Appeals (BIA) cоnducted a de novo review and dismissed Jimenez’s appeal. It held, first, that he would not have been eligible for relief under the Federal First Offender Act (FFOA), 18 U.S.C. § 3607, for the offense of being under the influence of a controlled substance because the FFOA applies only to simple possession offenses. Thus, that conviction was still valid for immigration purposes, even though he received relief under CaLPenal Code § 1203.4. Second, the BIA held that “expunged convictions can be used in assessing an alien’s good moral character because the facts underlying expunged convictions are relevant in the context of good moral character determinations.” Jimenez timely petitioned for review with this court.
ANALYSIS
This court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the BIA’s
Where, as hеre, the BIA conducted a de novo review of the Id’s decision, we review only the decision of the BIA. See Romero v. Holder,
A nonpermanent resident seeking cancellation of removal must meet four threshold requirements. INA § 240A(b)(l), 8 U.S.C. § 1229b(b)(l). He 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) [not have] been convicted of an offense under [8 U.S.C. § ]1182(a)(2), 1227(a)(2), or 1227(a)(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 an alien lawfully admitted for permanent residence.
Id. A person cannot be found to have good moral character if, among other things, he is “convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of ... a violation of ... any law or regulation of a State ... relating to a controlled substance,” INA § 212(a)(2)(A)®, 8 U.S.C. § 1182(a)(2)(A)®, as long as the offense was committed “during the period for which good moral character is required to be established,” INA § 101(f)(3), 8 U.S.C. § 1101(f)(3).
“[A]s a general rule, an expunged conviction qualifies as a conviction under the INA.” De Jesus Melendez v. Gonzales,
allows persons who have never previously violated the narcotics laws and are found guilty of first time simple drug possession to have the charges dismissed without entry of a conviction, provided that the judge deems them suitable for such treatment. The law applies to citizens and aliens alike, and allows those who benefit from it to avoid having their offenses used against them for any purpоse.
De Jesus Melendez,
Further, although the plain language of the FFOA applies only to offenses described in 21 U.S.C. § 844, which provides that it is “unlawful ... to possess a controlled substance,” we hаve held that the FFOA can be applicable to a drug offense less serious than simple possession, possession of drug paraphernalia. See Cardenas-Uriarte v. INS,
We see no relevant distinction for present purposes between the offenses of possession of drug paraphernalia and using or being under the influence of a controlled substance, as both are generally less serious than simple possession. As with possession оf drug paraphernalia, “Congress would never have considered including” under the FFOA the offense of using or being under the influence of a controlled substance, because no federal statute covers that crime. Cardenas-Uriarte,
We decline to address here the government’s contention that Jimenez would not have been eligible for relief under the FFOA because he was convicted of two drug offenses on November 29, 1999. The BIA’s decision was not premised on that circumstance, and it was asserted here for the first time in a letter filed with this court pursuant to Federal Rule of Appellate Procedure 28(j). See Ramirez-Altamirano,
The BIA also held that “expunged convictions can be used in assessing an аlien’s good moral character because the facts underlying expunged convictions are relevant in the context of good moral character determinations.” It is unclear whether this second holding was in the alternative, in the event that the FFOA does cover Jimenez’s convictiоns, or whether it addresses only convictions expunged under state law but not eligible for FFOA relief. Under the latter interpretation, the BIA’s second holding is correct, see Ramirez-Castro,
If, on the other hand, the BIA’s holding refers to expunged convictions that would be eligible for relief under the FFOA, then the holding is erroneous. We have recently held that “the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannоt serve as an ‘admission’ of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. § 1101(f)(3).” Romero,
CONCLUSION
Jimenez’s state conviction for using or being under the influence of a controlled substance, which has been expunged, does not bar his relief under Lujan-Armendariz. As the BIA erred in holding otherwise, we grаnt the petition and remand to the BIA.
PETITION GRANTED; REMANDED for further proceedings.
Notes
. In relevant part, the FFOA provides:
(a) ... If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. § 844)— (1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and
(2) has nоt previously been the subject of a disposition under this subsection; the court may ... place him on probation for a term of not more than one year without entering a judgment of conviction. At any time before the expiration of the term of probation, if the person has not violated a condition of his probation, the court may,*956 without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation....
(b) ... A disposition under subsection (a) ... shall not be considered a conviction for the purpose of a disqualification or a disаbility imposed by law upon conviction of a crime, or for any other purpose.
18 U.S.C. § 3607. Section 404 of the Controlled Substances Act criminalizes only simple possession of a controlled substance. 21 U.S.C. § 844(a).
Concurrence Opinion
concurring:
Though Congress determined that an alien who is found guilty and subject to some form of penalty оrdered by the court is considered to have a “conviction” for purposes of immigration law, 8 U.S.C. § 1101(a)(48)(A), our cases have all but written this requirement out of the INA. Beginning in Lujan-Armendariz v. INS, we reached the erroneous conclusion that the Equal Protection Clause required us to hold that an alien did not have a “cоnvic
From this dubious starting point, we have step by step traveled further afield from any reasonable interpretation of the INA, holding that an alien does not have a conviction for immigration purposes even if the alien wоuld not have qualified for expungement under the FFOA, see Cardenas-Uriarte v. INS,
Today, compelled by these precedents, we extend this judge-made edifice even further, holding that the BIA may not consider for any purpose a state crime (using or being under the influence of a controlled substance in violation of California Health & Safety Code § 11550) that neither qualifies for FFOA treatment nor received state law relief equivalent to that under the FFOA. In reaching this conclusion, we again overrule the BIA’s determination that such convictions should retain immigration consequences under the INA, even though: (1) we owe deference to the BIA’s interpretation that the state conviction has immigration consequences under the INA, see INS v. Aguirre-Aguirre,
Our case law compels me to join the majority. I lament, however, that we have drifted so far off the path counseled by Congress, the Supreme Court, and our sister circuits. The creeping expansion of federal common law in this area calls out for us to revisit and correct this questionable line of precedent.