Nunez-Reyes v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLAVIO NUNEZ-REYES, aka Flavio 

Reyes,

No. 05-74350

Petitioner,



B.I.A. No.

v. A078-181-648

ERIC H. HOLDER JR., Attorney OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

December 14, 2010—Pasadena, California

Filed July 14, 2011

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,

Betty B. Fletcher, Harry Pregerson,

Diarmuid F. O’Scannlain, Sidney R. Thomas,

Susan P. Graber, Kim McLane Wardlaw,

Consuelo M. Callahan, Milan D. Smith, Jr., and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Ikuta;

Dissent by Judge Pregerson

9477

9480 NUNEZ-REYES v. HOLDER

COUNSEL

Frank P. Sprouls, Law Office of Ricci & Sprouls, San Fran-

cisco, California, for the petitioner.

Holly M. Smith and Keith I. Bernstein, U.S. Department of

Justice, Office of Immigration Litigation, Washington, D.C.,

for the respondent.

Theshia Naidoo, Drug Policy Alliance, Berkeley, California;

Jayashri Shrikantiah, Stanford Law School Immigrants’

Rights Clinic, Stanford, California; and Stephen W. Manning,

Immigrant Law Group PC, Portland, Oregon, for Amici

Curiae.

NUNEZ-REYES v. HOLDER 9481

OPINION

GRABER, Circuit Judge:

Petitioner Flavio Nunez-Reyes, a native and citizen of

Mexico, petitions for review of the Board of Immigration

Appeals’ (“BIA”) decision denying his application for cancel-

lation of removal. We deny the petition. In the course of

doing so, sitting as an en banc court, we overrule our equal

protection holding in Lujan-Armendariz v. INS, 222 F.3d 728

(9th Cir. 2000). We also conclude that, in light of the equities

and other considerations, we will apply today’s new rule only

prospectively.*

FACTUAL AND PROCEDURAL HISTORY

Petitioner entered the United States in 1992. In 2001, he

was charged in state court with one felony count of possession

of methamphetamine, in violation of California Health and

Safety Code section 11377(a), and one misdemeanor count of

being under the influence of methamphetamine, in violation

of California Health and Safety Code section 11550(a). He

pleaded guilty to both counts, but the state court eventually

dismissed the charges under California Penal Code section

1210.1(e)(1), held unconstitutional in other part by Gardner

v. Schwarzenegger, 101 Cal. Rptr. 3d 229 (Ct. App. 2009).

Under that provision, the state court “shall . . . set aside [the

conviction] and . . . dismiss the indictment” if the defendant

successfully completes a drug treatment program and meets

other conditions. Cal. Penal Code § 1210.1(e)(1). “[E]xcept as

provided [in other subsections], both the arrest and the con-

viction shall be deemed never to have occurred.” Id.

In early 2002, the federal government issued a notice to

*Chief Judge Kozinski and Judges Schroeder, Thomas, Wardlaw, and

M. Smith join all Parts of this Opinion. Judges O’Scannlain, Callahan, and

Ikuta join Part A only. Judge B. Fletcher joins Part B only.

9482 NUNEZ-REYES v. HOLDER

appear, charging Petitioner with being removable. Petitioner

conceded removability but applied for adjustment of status

and cancellation of removal. The immigration judge (“IJ”)

denied all forms of relief and ordered Petitioner removed. The

IJ held that the state convictions rendered Petitioner ineligible

for any form of relief even though the state court later had dis-

missed the convictions. The BIA affirmed the IJ’s decision.

Petitioner timely petitioned for review. A three-judge panel

granted the petition because of our rule, first announced in

Lujan-Armendariz, that “equal protection requires us to treat

the expungement of a state conviction for simple possession

in the same manner” as the expungement of a federal convic-

tion for simple possession. Nunez-Reyes v. Holder, 602 F.3d

1102, 1104 (9th Cir. 2010) (per curiam). Judge Graber wrote

separately to state reasons why we should revisit the rule

announced in Lujan-Armendariz. See id. at 1105 (Graber, J.,

concurring) (citing Rice v. Holder, 597 F.3d 952, 957-58 (9th

Cir. 2010) (Ikuta, J., concurring) (arguing that we should

revisit this rule); Ramirez-Altamirano v. Holder, 563 F.3d

800, 816-17 (9th Cir. 2009) (Ikuta, J., dissenting) (same); Dil-

lingham v. INS, 267 F.3d 996, 1012-13 (9th Cir. 2001) (Fer-

nandez, J., dissenting) (suggesting that the Lujan-Armendariz

rule is incorrect but concluding that, “for purposes of this

case, that is neither here nor there”)).

We then granted rehearing en banc. Nunez-Reyes v. Holder,

No. 05-74350, 2010 WL 3816719 (9th Cir. Sept. 24, 2010)

(order).

STANDARD OF REVIEW

We review de novo the BIA’s determination “that a con-

trolled substance conviction precludes immigration relief as a

matter of law.” Ramirez-Altamirano, 563 F.3d at 804.

NUNEZ-REYES v. HOLDER 9483

DISCUSSION

A. We overrule Lujan-Armendariz.

Does a state-court conviction for a simple-possession drug

crime, later expunged by the state court, nevertheless consti-

tute a “conviction” for federal immigration purposes? History

has provided an ever-changing answer to that question. See In

re O-T-, 4 I. & N. Dec. 265, 268 (B.I.A. 1951) (“yes”); In re

A-F-, 8 I. & N. Dec. 429, 445 (Att’y Gen. 1959) (“no”); In re

Werk, 16 I. & N. Dec. 234, 235-36 (B.I.A. 1977) (“yes, in

some circumstances”); Garberding v. INS, 30 F.3d 1187,

1190-91 (9th Cir. 1994) (“no”); In re Manrique, 21 I. & N.

Dec. 58, 62-64 (B.I.A. 1995) (“no”). Against that backdrop,

in 1996, Congress enacted significant changes to our immi-

gration laws, which included a new definition of the term

“conviction.” 8 U.S.C. § 1101(a)(48)(A).1

In Lujan-Armendariz, we addressed the effect of the new

definition on a petitioner’s expunged state conviction for a

simple-possession drug crime. We began by considering

whether a federal conviction, later expunged under the Fed-

eral First Offender Act (“FFOA”), nevertheless constitutes a

“conviction” for immigration purposes. Importantly, the

FFOA mandates that a successfully expunged federal convic-

tion “shall not be considered a conviction for the purpose of

a disqualification or a disability imposed by law upon convic-

1

The full definition states:

The term “conviction” means, with respect to an alien, a for-

mal judgment of guilt of the alien entered by a court or, if adjudi-

cation 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 suffi-

cient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty,

or restraint on the alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A).

9484 NUNEZ-REYES v. HOLDER

tion of a crime, or for any other purpose.” 18 U.S.C.

§ 3607(b) (emphases added). We thoroughly examined the

apparent conflict between the quoted text of the FFOA and

the new definition of “conviction.” Lujan-Armendariz, 222

F.3d at 734-43.

[1] But we relegated to a footnote a very important addi-

tional step in the analysis: Did Congress have a rational basis

for distinguishing between expunged federal convictions and

expunged state convictions? We answered as follows: “INS

counsel offered no reason, and we cannot conceive of any,

why Congress would have wanted aliens found guilty of fed-

eral drug crimes to be treated more leniently than aliens found

guilty of state drug crimes.” Id. at 743 n.24. Our brief analysis

of this important issue is understandable in light of the gov-

ernment’s silence. But we now are persuaded that we erred.2

[2] Since our decision in Lujan-Armendariz, the BIA and

every sister circuit to have addressed the issue—eight in total

—have rejected our holding. In re Salazar-Regino, 23 I. & N.

Dec. 223, 235 (B.I.A. 2002) (en banc); Wellington v. Holder,

623 F.3d 115, 120-21 (2d Cir. 2010) (per curiam), cert.

denied, 79 U.S.L.W. 3442 (U.S. June 6, 2011) (No. 10-933);

Danso v. Gonzales, 489 F.3d 709, 716 (5th Cir. 2007); Ramos

v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Resendiz-

Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1271-72 (11th Cir.

2004); Elkins v. Comfort, 392 F.3d 1159, 1163-64 (10th Cir.

2004); Acosta v. Ashcroft, 341 F.3d 218, 224-27 (3d Cir.

2003); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-98 (8th

Cir. 2002); Herrera-Inirio v. INS, 208 F.3d 299, 304-09 (1st

Cir. 2000). The BIA held:

2

We address here only our holding in Lujan-Armendariz that the consti-

tutional guarantee of equal protection required Congress to treat expunged

federal convictions and expunged state convictions the same way. As we

did in Lujan-Armendariz, we assume, without deciding, that the statutory

term “conviction” includes expunged state convictions. Because this case

does not require resolution of that issue, we do not reach it.

NUNEZ-REYES v. HOLDER 9485

After considering the analysis set forth in Lujan-

Armendariz . . . , we decline to apply the ruling in

that decision to cases arising outside of the jurisdic-

tion of the Ninth Circuit. We therefore conclude that,

except in the Ninth Circuit, a first-time simple drug

possession offense expunged under a state rehabilita-

tive statute is a conviction under [the immigration

laws].

In re Salazar-Regino, 23 I. & N. Dec. at 235.

[3] Having reconsidered the issue, we now agree with the

BIA and our sister circuits. A very relaxed form of rational

basis review applies to this inquiry: “[F]ederal classifications

based on alienage are subject to relaxed scrutiny. Federal clas-

sifications distinguishing among groups of aliens thus are

valid unless wholly irrational.” Garberding, 30 F.3d at 1190

(citation and internal quotation marks omitted); see also

Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009) (en

banc) (per curiam) (“Congress has particularly broad and

sweeping powers when it comes to immigration, and is there-

fore entitled to an additional measure of deference when it

legislates as to admission, exclusion, removal, naturalization

or other matters pertaining to aliens.”), cert. denied, 130 S. Ct.

3272 (2010). That standard easily is met here. The Third Cir-

cuit put it well:

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 opera-

tion of state schemes that resemble the FFOA. Con-

gress 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 advan-

9486 NUNEZ-REYES v. HOLDER

tage of those state schemes to escape what is consid-

ered a conviction under state law. Particularly in

view of Congress’s power in immigration matters, it

seems plain that rational-basis review is satisfied

here.

Acosta, 341 F.3d at 227. Another rational basis exists as well:

Not all states permit expungement. A person con-

victed in such a state would be ineligible for relief

under the immigration laws, whereas a person con-

victed in a different state would be eligible. Con-

gress reasonably could have concluded that, in the

strong interest of uniformity, it would not recognize

any state expungements rather than adopt a piece-

meal approach.

Nunez-Reyes, 602 F.3d at 1107 (Graber, J., concurring).

[4] In conclusion, we hold that the constitutional guarantee

of equal protection does not require treating, for immigration

purposes, an expunged state conviction of a drug crime the

same as a federal drug conviction that has been expunged

under the FFOA. We therefore overrule Lujan-Armendariz’s

holding to the contrary. By necessity, we also overrule the

same holding in those cases that, bound by stare decisis, fol-

lowed the rule we announced in Lujan-Armendariz. Those

cases include Romero v. Holder, 568 F.3d 1054 (9th Cir.

2009); Ramirez-Altamirano, 563 F.3d 800; Dillingham, 267

F.3d 996; and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th

Cir. 2000).3

3

We do not address, and do not overrule, any other holding of Lujan-

Armendariz or its progeny, other than Rice v. Holder, 597 F.3d 952 (9th

Cir. 2010). See infra Part C.

NUNEZ-REYES v. HOLDER 9487

B. We will apply our decision prospectively only.

[5] Having decided to overrule Lujan-Armendariz, we next

consider whether to apply the new rule of law only prospec-

tively. The default principle is that a court’s decisions apply

retroactively to all cases still pending before the courts. Fed-

eral courts may depart from that default principle only in cer-

tain circumstances, as outlined in Chevron Oil Co. v. Huson,

404 U.S. 97 (1971). Below, we first explain that the three-

factor Chevron Oil test remains good law, at least in cases,

such as this one, where we announce a new rule of law not

affecting our jurisdiction. Balancing the three factors

described in Chevron Oil, we conclude that we will apply our

decision only prospectively.

1. The Chevron Oil test applies.

The circumstances that justify a deviation from the normal

rule of retroactivity have a long jurisprudential history. In the

criminal context, the Supreme Court originally held that pro-

spective application was appropriate in some circumstances.

Linkletter v. Walker, 381 U.S. 618 (1965). But the Court later

overruled Linkletter in favor of a bright-line rule: In criminal

cases, any new rule of law must be applied retroactively. Grif-

fith v. Kentucky, 479 U.S. 314 (1987).

In the civil context, the Supreme Court originally

announced a three-factor test of general applicability in Chev-

ron Oil. Under the Chevron Oil test, equitable considerations

in some circumstances warrant prospective application of a

new rule of law. But the Court has limited, in two relevant

ways, the circumstances in which the Chevron Oil test

applies.

First, a court announcing a new rule of law must decide

between pure prospectivity and full retroactivity; what Justice

Souter termed “selective prospectivity,” in which courts

weighed the equities on a case-by-case basis, is foreclosed.

9488 NUNEZ-REYES v. HOLDER

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

537-38 (1991) (Souter, J., plurality op.); see Reynoldsville

Casket Co. v. Hyde, 514 U.S. 749 (1995); Harper v. Va. Dep’t

of Taxation, 509 U.S. 86, 97 (1993) (“When [the Supreme]

Court applies a rule of federal law to the parties before it, that

rule is the controlling interpretation of federal law and must

be given full retroactive effect in all cases still open on direct

review . . . .”); Crowe v. Bolduc, 365 F.3d 86, 93 (1st Cir.

2004) (“In a civil case, then, a court [announcing a new rule

of law] has only two available options: pure prospectivity or

full retroactivity.”).

Second, in cases in which the new rule of law strips the

courts of jurisdiction, the courts must apply that new rule of

law retroactively. See United States ex rel. Haight v. Catholic

Healthcare W., 602 F.3d 949, 953 (9th Cir.) (citing United

States ex rel. Eisenstein v. City of New York, 129 S. Ct. 2230

(2009); Bowles v. Russell, 551 U.S. 205 (2007)), cert. denied,

131 S. Ct. 366 (2010); Felzen v. Andreas, 134 F.3d 873, 877

(7th Cir. 1998) (citing Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 818 (1988)). “Equitable considerations

are altogether irrelevant when a court lacks adjudicatory

power.” Felzen, 134 F.3d at 877.

We glean from this jurisprudential history the following

rule of law: We apply the three-pronged test outlined in Chev-

ron Oil (1) in a civil case; (2) when we announce a new rule

of law, as distinct from applying a new rule that we or the

Supreme Court previously announced; (3) and when the new

rule does not concern our jurisdiction. See, e.g., George v.

Camacho, 119 F.3d 1393, 1399 n.9 (9th Cir. 1997) (en banc).4

[6] Like some of our sister circuits, we acknowledge that

4

To the extent that our decision in George contravenes today’s holding

by applying Chevron Oil to circumstances concerning our jurisdiction, we

recognize that subsequent Supreme Court decisions overruled it. Haight,

602 F.3d at 953; Felzen, 134 F.3d at 877.

NUNEZ-REYES v. HOLDER 9489

the Supreme Court’s reasoning in cases such as Harper could

support a conclusion that the Chevron Oil test no longer

applies in any circumstances: all new rules of law must be

applied retroactively. See, e.g., Kolkevich v. Att’y Gen. of

U.S., 501 F.3d 323, 337 n.9 (3d Cir. 2007) (observing that,

“as some commentators have noted, it is unclear whether we

have the power” to apply a new rule of law prospectively in

light of Harper, but not reaching the issue); Fairfax Covenant

Church v. Fairfax Cnty. Sch. Bd., 17 F.3d 703, 710 (4th Cir.

1994) (noting that, in Harper, “the Supreme Court cast seri-

ous doubt” upon the continuing “vitality” of the Chevron Oil

test). But the Supreme Court has not overruled the Chevron

Oil test in the circumstances described above. See Glazner v.

Glazner, 347 F.3d 1212, 1216-17 (11th Cir. 2003) (en banc)

(“Although prospectivity appears to have fallen into disfavor

with the Supreme Court [citing Harper, James B. Beam, and

Griffith], the Court has clearly retained the possibility of pure

prospectivity and, we believe, has also retained the Chevron

Oil test, albeit in a modified form, as the governing analysis

for such determinations in civil cases.”); Fairfax Covenant

Church, 17 F.3d at 710 (“We are struck, however, by the

notable absence in Harper of any statement that Chevron

[Oil] is overruled . . . .”); but see Hulin v. Fibreboard Corp.,

178 F.3d 316, 333 (5th Cir. 1999) (concluding, in dictum, that

“[t]he Court’s most recent decisions . . . leav[e] only an indis-

tinct possibility of the application of pure prospectivity in an

extremely unusual and unforeseeable case”). As a circuit

court, even if “recent Supreme Court jurisprudence has per-

haps called into question the continuing viability of [its prece-

dent], we are bound to follow a controlling Supreme Court

precedent until it is explicitly overruled by that Court.” United

States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005)

(citation omitted); see Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of

this Court has direct application in a case, yet appears to rest

on reasons rejected in some other line of decisions, the Court

of Appeals should follow the case which directly controls,

leaving to this Court the prerogative of overruling its own

decisions.”). We therefore remain bound by Chevron Oil. For

that same reason, every court to have decided the issue has

concluded that Chevron Oil continues to apply. See Crowe,

365 F.3d at 94 (applying the Chevron Oil test); Glazner, 347

9490 NUNEZ-REYES v. HOLDER

F.3d at 1219 (same); see also Shah v. Pan Am. World Servs.,

Inc., 148 F.3d 84, 91 (2d Cir. 1998) (same). Following our

sister circuits and our previous holdings, we too will apply the

Chevron Oil test when all three of the requirements described

above are met.

In this civil case, we announce a new rule of law that does

not concern our jurisdiction. The Chevron Oil test applies.

2. Balancing the Chevron Oil factors, we will apply the

new rule only prospectively.

[7] The three Chevron Oil factors are: (1) whether the

decision “establish[es] a new principle of law”; (2) “whether

retrospective operation will further or retard [the rule’s] oper-

ation” in light of its history, purpose, and effect; and (3)

whether our decision “could produce substantial inequitable

results if applied retroactively.” 404 U.S. at 106-07 (internal

quotation marks omitted). There is no question that our deci-

sion today “establish[es] a new principle of law . . . by over-

ruling clear past precedent on which litigants may have

relied.” Id. at 106. Lujan-Armendariz clearly announced the

rule that equal protection required that we treat expunged

state drug convictions as we do expunged federal drug con-

victions. Just as clearly, we overrule that holding today.

Further, amici assert—and the government does not dispute

—that, because of the clarity and consistent application of

Lujan-Armendariz for more than a decade, aliens and their

counsel have acted in reliance on Lujan-Armendariz. Accord-

ing to amici, aliens often have pleaded guilty to minor drug

crimes and have completed drug treatment in order to have

their convictions expunged—all in reliance on Lujan-

Armendariz’s promise that doing so would spare them from

adverse immigration consequences.

“There can be little doubt that, as a general matter, alien

defendants considering whether to enter into a plea agreement

NUNEZ-REYES v. HOLDER 9491

are acutely aware of the immigration consequences of their

convictions.” INS v. St. Cyr, 533 U.S. 289, 322 (2001).5

“[D]eportation is an integral part—indeed, sometimes the

most important part—of the penalty that may be imposed on

noncitizen defendants who plead guilty to specified crimes.”

Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (footnote

omitted). “Preserving the client’s right to remain in the United

States may be more important to the client than any potential

jail sentence.” Id. at 1483 (internal quotation marks and alter-

ation omitted). Accordingly, “the threat of deportation may

provide the defendant with a powerful incentive to plead

guilty to an offense that does not mandate that penalty.” Id.

at 1486.

Our decision in Lujan-Armendariz provided clear assurance

that expungement after a plea of guilty to the state crime of

simple drug possession would insulate the alien from adverse

immigration consequences. “Even if the defendant were not

initially aware of [Lujan-Armendariz], competent defense

counsel, following the advice of numerous practice guides,

would have advised him concerning the [decision’s] impor-

tance.” St. Cyr., 533 U.S. at 323 n.50. Indeed, in a situation

similar to this one, where the immigration consequences are

“succinct, clear, and explicit,” the Supreme Court has held

that an alien’s counsel who fails to inform the alien of those

5

Judge Ikuta asserts that, because St. Cyr arose in a different context, all

the Supreme Court’s statements in that opinion are “inapposite” here. Par-

tial dissent at 9506-07 n.7. As an initial matter, we quote from a wide

range of cases arising in many different contexts. For instance, in the next

sentence in text, we quote from Padilla v. Kentucky, 130 S. Ct. 1473

(2010), but Judge Ikuta expresses no concern about that quotation. More

to the point, we simply use the Supreme Court’s words to describe the

interplay between plea agreements and immigration consequences and the

resulting unfairness to aliens when they enter into plea agreements under

a misunderstanding of the immigration consequences. The interplay

between pleas and consequences—and the resulting unfairness—are the

same, whether it is Congress or the courts that pull the rug out from under-

neath aliens. While St. Cyr does not control the analysis of the third Chev-

ron Oil factor, the Court’s discussion is relevant and instructive.

9492 NUNEZ-REYES v. HOLDER

consequences has provided ineffective assistance. Padilla,

130 S. Ct. at 1483.

After our decision today, alien defendants will know that an

expunged state-law conviction for simple possession will have

adverse immigration consequences.6 Those aliens will be able

to make a fully informed decision whether to plead guilty or

to exercise their constitutional rights, such as the right to trial

by jury. See St. Cyr, 533 U.S. at 322 (“In exchange for some

perceived benefit, defendants waive several of their constitu-

tional rights (including the right to a trial) and grant the gov-

ernment numerous tangible benefits . . . .”).

For those aliens who relied on Lujan-Armendariz, however,

“[t]he potential for unfairness in the retroactive application”

of today’s decision “is significant and manifest.” St. Cyr, 533

U.S. at 323. Those aliens were assured that, after completion

of drug treatment, there would be absolutely no legal conse-

quences. Their waiver of their constitutional rights was in reli-

ance on Lujan-Armendariz. In these circumstances, we easily

6

We recognize, of course, that nothing is ever guaranteed. There was

always some chance, for instance, that Congress would amend the law and

apply it retroactively. Similarly, there was some chance that an alien resid-

ing in the Ninth Circuit would move and be issued a notice to appear in

a different jurisdiction, where Lujan-Armendariz does not apply. At oral

argument, the government urged us to conclude that any reliance on

Lujan-Armendariz therefore was only speculative. We disagree; indeed, it

is the government’s argument that contains speculation. Reliance on the

clear, binding precedent of Lujan-Armendariz strikes us as entirely reason-

able and prudent, particularly in light of Congress’ inaction, the Supreme

Court’s steady denial of certiorari in cases raising this issue, and our own

consistent application (and, arguably, expansion) of the precedent in a

series of cases spanning more than a decade. Moreover, the Supreme

Court has rejected essentially the same argument because “[t]here is a

clear difference, for the purposes of [statutory] retroactivity analysis,

between facing possible deportation and facing certain deportation.” St.

Cyr, 533 U.S. at 325. In conclusion, aliens’ reliance on Lujan-Armendariz

is not diminished because of some outside chance that they would not

receive its benefit.

NUNEZ-REYES v. HOLDER 9493

conclude that the third Chevron Oil factor is met: our decision

“could produce substantial inequitable results if applied retro-

actively.” Chevron Oil, 404 U.S. at 107. It would be mani-

festly unfair effectively to hoodwink aliens into waiving their

constitutional rights on the promise of no legal consequences

and, then, to hold retroactively that their convictions actually

carried with them the “particularly severe ‘penalty’ ” of

removal, Padilla, 130 S. Ct. 1481; cf. Crowe, 365 F.3d at 94

(“We think that it would be patently unfair to subject a party

to a forfeiture for assiduously following binding circuit prece-

dent.”); Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d

541, 545 (11th Cir. 2002) (en banc) (“It would be inequitable

to punish those parties for following the clearly established

precedent of this Circuit.”).

For similar reasons, we conclude that the second Chevron

Oil factor is met: In light of the rule’s history, purpose, and

effect, retroactive application will not further the rule’s opera-

tion. 404 U.S. at 106-07. As we now make clear, Congress

intended that convictions for state-law simple possession have

adverse immigration consequences. At first glance, it may

appear that retroactive application of today’s decision would

further that purpose. After all, the state-law convictions

occurred, and Congress intended that such convictions have

adverse immigration consequences.

But Congress did not intend adverse immigration conse-

quences for those who were merely charged with a crime or

suspected of a crime; Congress intended such results only for

those who were duly convicted, with all the constitutional

protections of our criminal justice system. Relevant here, we

think it is a reasonable assumption that Congress intended

adverse immigration consequences only for those who were

convicted either after the exercise of their constitutional

rights, such as the right to trial, or after an informed waiver

of those constitutional rights. As discussed above, many alien

defendants fell into neither category. Instead, they pleaded

guilty and waived their constitutional rights with a wholly

9494 NUNEZ-REYES v. HOLDER

uninformed understanding of the consequences of their plea.

Contrary to their understanding that there would be no immi-

gration consequences, the actual consequence is the severe

penalty of removal. Nothing in the statute or its history, pur-

pose, or effect suggests that Congress intended adverse immi-

gration consequences for those whose waiver of constitutional

rights turned out to be so ill-informed. Indeed, the Supreme

Court has instructed that such a gross misunderstanding of the

immigration consequences of a plea, when caused by incom-

petent counsel, rises to the level of a constitutional violation.

Padilla, 130 S. Ct. at 1486-87. We conclude that retroactive

application of our decision today will not further the purposes

of the immigration laws.

[8] Weighing the Chevron Oil factors, we hold that our

decision today will apply only prospectively. Cf. Glazner, 347

F.3d at 1220 (“If this were truly a situation where the class of

persons affected by the new rule would suddenly face a strong

likelihood of liability when they faced no possibility of liabil-

ity before, we would be inclined to view the equities as

weighing heavily in favor of pure prospective application.”).

For those aliens convicted before the publication date of this

decision, Lujan-Armendariz applies. For those aliens con-

victed after the publication date of this decision, Lujan-

Armendariz is overruled.

C. We nevertheless deny the petition in this case.

Because our decision applies only prospectively, we apply

the rule announced in Lujan-Armendariz to the petition for

review in this case. In Lujan-Armendariz, we held that an

expunged conviction for simple possession did not constitute

a “conviction” for immigration purposes. In later cases, we

held that an expunged conviction for a “lesser offense” to

simple possession also did not constitute a “conviction” for

immigration purposes. Ramirez-Altamirano, 563 F.3d at

808-09; Cardenas-Uriarte, 227 F.3d at 1137. In those cases,

it was clear that the conviction was for a “lesser offense”

NUNEZ-REYES v. HOLDER 9495

because the alien was convicted of a single crime that carried

a lesser penalty than the crime of simple possession. See

Ramirez-Altamirano, 563 F.3d at 808 (“The structure of [the

alien’s] plea agreement obviously was intended to minimize

his culpability by allowing him to avoid facing the more seri-

ous drug possession charge, and reflects the state’s view as to

the seriousness of the offense.”).

[9] Here, however, Petitioner was convicted of being under

the influence of methamphetamine. Being under the influence

is not a lesser crime than simple possession. Although we

have held that possession of paraphernalia is a lesser crime

than possession of a drug itself, at least where the defendant

pleaded down from an original charge of simple possession,

Cardenas-Uriarte, 227 F.3d at 1137, being under the influ-

ence is not a possession crime at all, and it is thus qualita-

tively different from any federal conviction for which FFOA

treatment would be available. Being under the influence is not

a lesser offense to simple possession because it arguably is

more serious than mere possession; being under the influence

alters one’s sober state of mind and carries an immediate risk

of dangerous behavior, which mere possession does not nec-

essarily create. For example, one could foolishly agree to hide

drugs for a friend, which does not create an immediate risk of

dangerous behavior. We therefore overrule Rice v. Holder,

597 F.3d 952 (9th Cir. 2010).7 The BIA did not err.

7

Judge Ikuta argues that, if we are correct about the Chevron Oil factors

concerning Lujan-Armendariz, then we also must overrule Rice prospec-

tively only. Partial dissent at 9505-06 & n.6. We disagree. Unlike with

respect to Lujan-Armendariz, the Chevron Oil factors do not support a

finding of prospectivity with respect to Rice. The parties and amici have

presented no evidence that litigants have relied on our very recent decision

in Rice. See Chevron Oil, 404 U.S. at 106 (holding that prospectivity is

appropriate where we overrule past precedent “on which litigants may

have relied”). This petitioner certainly did not rely on Rice, because he

pleaded guilty in 2001—nine years before we decided Rice. For similar

reasons, we are unpersuaded that “substantial inequitable results,” id. at

107 (internal quotation marks omitted), will result from retroactive appli-

cation of our decision to overrule the very recent holding in Rice.

9496 NUNEZ-REYES v. HOLDER

Petition DENIED.

IKUTA, Circuit Judge, with whom Judges O’SCANNLAIN

and CALLAHAN join, concurring in part, dissenting in part,

and concurring in the judgment:

In overruling the equal protection holding of Lujan-

Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), see Maj. op.

at 9483-86, the majority corrects a longstanding error in our

case law, and I concur in both its reasoning and its result.

Having corrected one error, however, the majority then com-

mits another, holding that its overruling of Lujan-Armendariz

will apply prospectively only. Because the majority fails to

heed the Supreme Court’s warning that prospective decision-

making is appropriate (if ever) only in certain circumstances

that are not present here, I respectfully dissent from Parts B

and C of the majority opinion.

I

In Harper v. Virginia Department of Taxation, the Supreme

Court’s most recent opinion on the prospective application of

judicial decisions, the Court expressed grave concerns about

whether prospective decisionmaking is ever permissible. 509

U.S. 86, 97-98 (1993). Harper represents only the latest in a

series of Supreme Court decisions that have severely curtailed

the power of courts to engage in prospective decisionmaking

and have articulated a more traditional view of the judicial

power. See Am. Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167,

201 (1990) (Scalia, J., concurring in the judgment) (“[T]he

judicial role . . . is to say what the law is, not prescribe what

it shall be.”); see also Agostini v. Felton, 521 U.S. 203, 237

(1997) (“Our general practice is to apply the rule of law we

announce in a case to the parties before us. . . . We adhere to

this practice even when we overrule a case.” (citation omit-

ted)).

NUNEZ-REYES v. HOLDER 9497

The Supreme Court began experimenting with prospective

decisionmaking during the 1960s. In Linkletter v. Walker, the

Court created a doctrine under which courts could deny retro-

active effect to a newly announced rule of criminal procedure.

381 U.S. 618, 629 (1965). In Chevron Oil Co. v. Huson, it

established a similar doctrine for civil cases. 404 U.S. 97,

106-07 (1971). Over the next decade or so, the Supreme Court

applied both of these doctrines in a number of cases, justified

by a range of rationales of varying strength. See James B.

Beam Distilling Co. v. Georgia (Beam), 501 U.S. 529, 536

(1991) (citing cases); United States v. Johnson, 457 U.S. 537,

543-45 (1982) (same).

The Court’s return to a more traditional view of judicial

power began with United States v. Johnson. Expressing dis-

satisfaction with its prior non-retroactivity jurisprudence and

declaring that “[r]etroactivity must be rethought,” Johnson,

457 U.S. at 548 (quoting Desist v. United States, 394 U.S.

244, 258 (1969) (Harlan, J., dissenting)) (internal quotation

marks omitted), Johnson cut back on Linkletter by holding

that (subject to certain exceptions) “a decision of th[e]

[Supreme] Court construing the Fourth Amendment is to be

applied retroactively to all convictions that were not yet final

at the time the decision was rendered.” Id. at 562. It was left

to Griffith v. Kentucky, however, to bring the era of criminal

non-retroactivity to a close. 479 U.S. 314 (1987). In Griffith,

the Court overruled Linkletter and held that “a new rule [of

criminal procedure] is to be applied retroactively to all cases,

state or federal, pending on direct review or not yet final, with

no exception[s].” Id. at 328. In explaining its decision, the

Court stated that the Linkletter doctrine violated two of the

“basic norms of constitutional adjudication.” Id. at 322. First,

it violated the “nature of judicial review” because it allowed

a court to decide on a new rule of law but then refuse to

“apply that rule to all similar cases pending on direct review.”

Id. at 322-23. Second, Linkletter’s “selective application of

new rules violate[d] the principle of treating similarly situated

[parties] the same.” Id.

9498 NUNEZ-REYES v. HOLDER

It is true that Griffith left the civil non-retroactivity doctrine

of Chevron Oil untouched. See id. at 322 n.8. However, the

Court subsequently expressed doubts about the viability of

non-retroactivity in the civil context, as well. See Beam, 501

U.S. 529 (six Justices disapproving of selective non-

retroactivity in the civil context);1 Am. Trucking Ass’ns, 496

1

In an opinion announcing the judgment of the Court, Justice Souter

(joined by Justice Stevens) commented: “Griffith cannot be confined to the

criminal law. Its equality principle, that similarly situated litigants should

be treated the same, carries comparable force in the civil context.” Beam,

501 U.S. at 540 (Souter, J., announcing the judgment of the Court). He

further noted:

Nor, finally, are litigants to be distinguished for choice-of-law

purposes on the particular equities of their claims to prospec-

tivity: whether they actually relied on the old rule and how they

would suffer from retroactive application of the new. It is simply

in the nature of precedent, as a necessary component of any sys-

tem that aspires to fairness and equality, that the substantive law

will not shift and spring on such a basis. To this extent, our deci-

sion here does limit the possible applications of the Chevron Oil

analysis, however irrelevant Chevron Oil may otherwise be to

this case. Because the rejection of modified prospectivity pre-

cludes retroactive application of a new rule to some litigants

when it is not applied to others, the Chevron Oil test cannot

determine the choice of law by relying on the equities of the par-

ticular case.

Id. at 543. Justice White noted that “if the Court in [Bacchus Imports, Ltd.

v. Dias, 468 U.S. 263 (1984),] thought its decision to have been reason-

ably foreseeable and hence not a new rule, there would be no doubt that

it would be retroactive to all similarly situated litigants.” Id. at 544-45

(White, J., concurring in the judgment). Justice Blackmun (joined by Jus-

tices Marshall and Scalia) wrote:

I agree that failure to apply a newly declared constitutional rule

to cases pending on direct review violates basic norms of consti-

tutional adjudication. It seems to me that our decision in Griffith

makes clear that this Court’s function in articulating new rules of

decision must comport with its duty to decide only “Cases” and

“Controversies.” Unlike a legislature, we do not promulgate new

rules to “be applied prospectively only,” as the dissent, and per-

haps Justice Souter, would have it. The nature of judicial review

NUNEZ-REYES v. HOLDER 9499

U.S. 167 (five Justices rejecting the plurality’s civil non-

retroactivity analysis).

The Justices’ misgivings regarding non-retroactivity in the

civil context found expression in the Court’s opinion in Har-

per. Justice Thomas, in his opinion for the Court, stated:

Beam controls this case, and we accordingly adopt a

rule that fairly reflects the position of a majority of

Justices in Beam: When this Court applies a rule of

federal law to the parties before it, that rule is the

controlling interpretation of federal law and must be

given full retroactive effect in all cases still open on

direct review and as to all events, regardless of

constrains us to consider the case that is actually before us, and,

if it requires us to announce a new rule, to do so in the context

of the case and apply it to the parties who brought us the case to

decide. To do otherwise is to warp the role that we, as judges,

play in a Government of limited powers.

Id. at 547 (Blackmun, J., concurring in the judgment) (citations omitted).

Justice Scalia (joined by Justices Marshall and Blackmun) wrote:

I think, “[t]he judicial Power of the United States” conferred

upon this Court and such inferior courts as Congress may estab-

lish must be deemed to be the judicial power as understood by

our common-law tradition. That is the power “to say what the law

is,” not the power to change it. I am not so naive (nor do I think

our forebears were) as to be unaware that judges in a real sense

“make” law. But they make it as judges make it, which is to say

as though they were “finding” it — discerning what the law is,

rather than decreeing what it is today changed to, or what it will

tomorrow be. Of course this mode of action poses “difficulties of

a . . . practical sort” when courts decide to overrule prior prece-

dent. But those difficulties are one of the understood checks upon

judicial law-making; to eliminate them is to render courts sub-

stantially more free to “make new law,” and thus to alter in a fun-

damental way the assigned balance of responsibility and power

among the three branches.

Id. at 549 (Scalia, J., concurring in the judgment) (citations omitted).

9500 NUNEZ-REYES v. HOLDER

whether such events predate or postdate our

announcement of the rule.

Harper, 509 U.S. at 97. The Court explained that it was

imposing this rule to further the same “basic norms of consti-

tutional adjudication” that had caused it to eliminate non-

retroactivity in the criminal context in Griffith. Id. (internal

quotation marks omitted). The Court noted that the “general

rule of retrospective effect” for judicial decisions has “gov-

erned ‘[j]udicial decision[making] . . . for near a thousand

years.’ ” Id. at 94 (quoting Kuhn v. Fairmont Coal Co., 215

U.S. 349, 372 (1910) (Holmes, J., dissenting)). In direct con-

trast to this general rule, the power to “make rules of law

retroactive or prospective as [one] see[s] fit” is “quintessen-

tially” a legislative prerogative. Id. at 95; see also Griffith,

479 U.S. at 323 (“In truth, the Court’s assertion of power to

disregard current law in adjudicating cases before us that have

not already run the full course of appellate review, is quite

simply an assertion that our constitutional function is not one

of adjudication but in effect of legislation.” (quoting Mackey

v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concur-

ring in the judgment)) (internal quotation mark omitted)).

Thus, Harper said, courts “ha[ve] no more constitutional

authority in civil cases than in criminal cases to disregard cur-

rent law or to treat similarly situated litigants differently.” 509

U.S. at 97 (quoting Am. Trucking Ass’ns, 496 U.S. at 214

(Stevens, J., dissenting)) (internal quotation mark omitted).

Although the reasons for severely limiting non-retroactive

decisionmaking are clearly set out in Harper, the Court did

not expressly overrule Chevron Oil.2 See id. We therefore

2

Whether the Court may have implicitly overruled Chevron Oil has

been the subject of some debate. See Bradley Scott Shannon, The Retroac-

tive and Prospective Application of Judicial Decisions, 26 Harv. J. L. &

Pub. Pol’y 811, 814 (Summer 2003) (reviewing the Supreme Court’s opin-

ions and concluding that the Court has “reverted to a firm rule of retroac-

tive application . . . in the civil arena”). Such a conclusion finds support

NUNEZ-REYES v. HOLDER 9501

must continue to consider Chevron Oil where we are

announcing a new rule of law for the first time and the parties

have fairly raised the issue.3 See Agostini, 521 U.S. at 237.

Harper nonetheless strongly indicated that purely prospective

application of a new rule is disfavored even in this situation.

In light of Harper’s disapproval of the principle of non-

retroactivity, we should interpret the Chevron Oil exception to

retroactivity as a narrow one and avoid expanding its applica-

tion.

II

Chevron Oil sets forth three factors we must consider when

determining whether a decision should be applied prospec-

tively only. When narrowly construed, as required by Harper,

these factors do not clearly support applying our decision

overruling Lujan-Armendariz non-retroactively; indeed, one

factor weighs heavily against a prospective-only application.

In addition, both practical and jurisprudential considerations

strongly encourage compliance with the Supreme Court’s pre-

ferred approach of full retroactivity.

A

The first factor in the Chevron Oil test is whether “the deci-

sion to be applied nonretroactively . . . establish[es] a new

principle of law, either by overruling clear past precedent on

in Landgraf v. USI Film Products, in which the Court stated that “[w]hile

it was accurate in 1974 to say that a new rule announced in a judicial deci-

sion was only presumptively applicable to pending cases, we have since

established a firm rule of retroactivity.” 511 U.S. 244, 279 n.32 (1994)

(citing Harper, 509 U.S. 86; Griffith, 479 U.S. 314).

3

Another restriction on non-retroactivity, not at issue here, is that a new

rule of law must always be applied retroactively where it concerns our

jurisdiction. See United States ex rel. Haight v. Catholic Healthcare W.,

602 F.3d 949, 953 (9th Cir. 2010) (citing United States ex rel. Eisenstein

v. City of New York, 129 S. Ct. 2230 (2009)).

9502 NUNEZ-REYES v. HOLDER

which litigants may have relied, or by deciding an issue of

first impression whose resolution was not clearly foreshad-

owed.” Chevron Oil, 404 U.S. at 106 (citation omitted). Con-

strued narrowly, this first factor aims at identifying those

judicial decisions that unexpectedly enunciate a novel princi-

ple of law which may unfairly take litigants by surprise. Our

abrogation of Lujan-Armendariz does not meet this criteria;

instead, it brings our circuit in line with the rest of the nation.

Lujan-Armendariz has long been an outlier in the context of

national immigration law; as noted by the majority, since it

was decided, “the BIA and every sister circuit to . . .

address[ ] the issue—eight in total” have soundly rejected its

holding.4 Maj op. at 9484. Given this context, the majority’s

decision hardly establishes a “new principle of law.” Chevron

Oil, 404 U.S. at 106. To the contrary, the demise of Lujan-

Armendariz (at the hands of Congress, the Supreme Court, or

the en banc Ninth Circuit) has been “clearly foreshadowed.”

Id. Because the majority is taking the unsurprising step of

conforming our case law to the rest of the nation rather than

adopting an unanticipated new legal rule, this factor does not

weigh heavily in favor of non-retroactive application of its

decision.

B

The second factor requires us to “weigh the merits and

demerits in each case by looking to the prior history of the

rule in question, its purpose and effect, and whether retrospec-

4

Our sister circuits have consistently rejected our position. See Welling-

ton v. Holder, 623 F.3d 115, 120-22 (2d Cir. 2010) (per curiam), petition

for cert. filed, 79 U.S.L.W. 3442 (U.S. Jan. 18, 2011) (No. 10-933); Danso

v. Gonzales, 489 F.3d 709, 716-17 (5th Cir. 2007); Ramos v. Gonzales,

414 F.3d 800, 805-06 (7th Cir. 2005); Resendiz-Alcaraz v. U.S. Att’y Gen.,

383 F.3d 1262, 1271-72 (11th Cir. 2004); Elkins v. Comfort, 392 F.3d

1159, 1162-64 (10th Cir. 2004); Acosta v. Ashcroft, 341 F.3d 218, 224-27

(3d Cir. 2003); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-98 (8th Cir.

2002); cf. Herrera-Inirio v. INS, 208 F.3d 299, 304-09 (1st Cir. 2000).

NUNEZ-REYES v. HOLDER 9503

tive operation will further or retard its operation.” Id. at 106-07.5

This factor strongly supports retrospective operation.

As the majority acknowledges, Congress’s enactment of a

broad definition of “conviction” in IIRIRA, see 8 U.S.C.

§ 1101(a)(48)(A), clearly expressed its intent “that convic-

tions for state-law simple possession have adverse immigra-

tion consequences” even if those convictions are later

expunged by the state courts. Maj. op. at 9493. In holding that

such a result would violate the equal protection rights of

aliens convicted of state offenses, Lujan-Armendariz frus-

trated the realization of Congress’s intent. Today, the majority

announces that, contrary to Lujan-Armendariz, “the constitu-

tional guarantee of equal protection does not require treating,

for immigration purposes, an expunged state conviction of a

drug crime the same as a federal drug conviction that has been

expunged under the FFOA.” Maj. op. at 9486. This ruling

finally frees immigration judges, the BIA, and this court to

apply § 1101(a)(48)(A) as Congress intended and as it has

been applied for over a decade outside the Ninth Circuit. By

overruling Lujan-Armendariz only prospectively, however,

the majority further delays giving effect to a law that Con-

gress enacted over ten years ago, even while the majority

repudiates Lujan-Armendariz’s equal protection analysis. The

only reasonable conclusion is that the delay caused by this

prospective application “retard[s]” the operation of the major-

ity’s new rule. See Chevron Oil, 404 U.S. at 107.

The majority’s contrary conclusion is based on its “assump-

tion” that Congress could not have intended to apply the stat-

5

This factor was adopted from Linkletter, which considered whether the

exclusionary rule established by Mapp v. Ohio, 367 U.S. 643 (1961),

should be applied retroactively to cases that were already final. In deter-

mining that the purpose of the Mapp rule would not be served by its retro-

active application, the Court noted the purpose of the exclusionary rule

was the “deter[rence of] lawless police action,” a purpose that would not

“at this late date be served by the wholesale release of the guilty victims.”

Linkletter, 381 U.S. at 636-37.

9504 NUNEZ-REYES v. HOLDER

ute to aliens who may have waived their constitutional rights

in reliance on our erroneous precedent. See Maj. op. at 9493.

This assumption, of course, arises solely from the majority’s

belief that Congress would balance the equities the same way

it does. But we must discern Congress’s intent from the lan-

guage of the statutes it enacts, not from our own perspectives

on policy. See United States v. Gonzales, 520 U.S. 1, 9-10

(1997) (noting that where “the straightforward language” of

a statute “leaves no room to speculate about congressional

intent,” courts should not “carve out statutory exceptions

based on judicial perceptions” of good policy). There is no

support in the statute for the majority’s claim that “retroactive

application will not further the rule’s operation.” Maj. op at

9493. Indeed, by substituting its own intent for that of Con-

gress, the majority usurps Congress’s legislative “preroga-

tive” to make its enactments “retroactive or prospective as [it]

see[s] fit,” Harper, 509 U.S. at 95, and effectively eliminates

Chevron Oil’s second factor for any case where a statute is

involved (because a court can always impute its own views on

equity to Congress). This approach is contrary to Chevron Oil

and also expands its scope, contrary to Harper.

C

The third factor instructs us to inquire whether our decision

“could produce substantial inequitable results if applied retro-

actively.” Chevron Oil, 404 U.S. at 107 (internal quotation

marks omitted). Given the diversity of relief provided by state

expungement statutes, including statutes that allow expunge-

ment even when an alien is convicted of drug offenses at trial,

see, e.g., Cal. Penal Code §§ 1210, 1210.1(e), it is impossible

to know the extent to which aliens waived their constitutional

rights in reliance on Lujan-Armendariz. See Maj. op. at

9492-93. But even assuming that aliens did waive their trial

rights in the expectation of subsequently avoiding immigra-

tion consequences for their offenses, and that defeating such

expectations would produce inequitable results, a full consid-

eration of the equities cannot ignore the inequities that will

NUNEZ-REYES v. HOLDER 9505

result from the majority’s application of its new rule non-

retroactively. The majority’s decision will create significant

inequities between aliens in the Ninth Circuit who were con-

victed before the date of this decision and who subsequently

had those convictions expunged, and all other aliens with

expunged convictions everywhere in the country. The aliens

in the first group, whether they actually relied on Lujan-

Armendariz or not, could avoid the immigration consequences

of their convictions, while all those in the second group would

be deemed to have “convictions” under the plain language of

§ 1101(a)(48)(A) and would have to suffer such conse-

quences. In short, the majority’s decision will lead to “simi-

larly situated” aliens being treated differently in the future,

Harper, 509 U.S. at 95 (internal quotation marks omitted),

with no basis in the Constitution or the statute for the differ-

ence.

The majority exacerbates this inequity by choosing to over-

rule Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), retroac-

tively, see Maj. op. at 9494-95, while overruling Lujan-

Armendariz and its other progeny only prospectively, see Maj.

op. at 9487, 9494-95. Under Harper, because the majority

applies its new rule abrogating Rice to Nunez-Reyes, this

abrogation “must be given full retroactive effect in all cases

still open on direct review.” Harper, 509 U.S. at 97. In other

words, the majority has singled out one unlucky sub-class

(aliens who may have relied on Rice) from the larger class it

has created (aliens who may have relied on Lujan-Armendariz

and its progeny) with no apparent justification other than the

fact that Nunez-Reyes’s case happened to fall within the pur-

view of Rice.6 This runs directly counter to the Supreme

6

The majority gives two explanations for its inconsistent treatment of

Rice, neither of which is persuasive. First, the majority asserts that Rice

was more wrongly decided than Ramirez-Altamirano v. Holder, 563 F.3d

800 (9th Cir. 2009), and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir.

2000), because the state offense at issue in Rice (being under the influ-

ence) is less like the federal offense covered by FFOA (simple possession)

9506 NUNEZ-REYES v. HOLDER

Court’s statement in Harper that courts must not allow “the

substantive law [to] shift” according to “the particular equities

of [an individual party’s] claim[ ].” Id. (internal quotation

marks omitted).

Given that applying our decision overruling Lujan-

Armendariz non-retroactively creates “substantial inequitable

results” among similarly situated aliens, Chevron Oil’s third

factor does not weigh heavily in favor of a non-retroactive appli-

cation.7

than is the state offense at issue in Ramirez-Altamirano and Carde-

nas-Uriarte (possession of drug paraphernalia). As the majority explains,

while possession of paraphernalia is a “‘possession crime,” being under

the influence does not involve any kind of “possession,”and thus it

is“qualitatively different from any federal conviction for which FFOA

treatment would be available.” Maj. op. at 9494-95. Moreover, the major-

ity asserts that possession of drug paraphernalia is a “lesser offense” than

simple possession, whereas being under the influence is not. Id. at 9495.

But this analysis is completely immaterial, given that all three of these

cases, along with Lujan-Armendariz, were wrongly decided because of the

same erroneous equal protection analysis; therefore, the majority’s com-

parison of the types of offenses expunged in these cases does not help

answer the question why only one of these wrong decisions should be

overruled retroactively.

Second, the majority notes that‘[t]he parties and amici have presented

no evidence that litigants have relied on our very recent decision in Rice.”

Maj. op. at 9495 n.7. This purported distinction of Rice is also unpersua-

sive: the parties and amici provided as much “evidence” of reliance on

Rice as they did of reliance on any of the other cases. In a word: none.

Rather, the “evidence” of reliance cited by the parties and amici amounted

to little more than assertions that the defense bar knew of our prior case

law and so informed their clients. Of course, that case law included not

only Lujan-Armendariz, but also its progeny. See, e.g., Brief for Drug Pol-

icy Alliance et al. as Amici Curiae Supporting Petitioner at 6 n.4, 9,

Nunez-Reyes v. Holder, No. 05-74350 (9th Cir. Oct. 29, 2010) (explaining

that “established criminal defense practice in states within the Ninth Cir-

cuit” is based on “the Lujan-Armendariz line of decisions,” which includes

Lujan-Armendariz and eight other decisions).

7

In its discussion of Chevron Oil’s third factor, the majority repeatedly

cites to and quotes from INS v. St. Cyr, 533 U.S. 289, 322-23 (2001). See

NUNEZ-REYES v. HOLDER 9507

D

In sum, because courts generally “ha[ve] no more constitu-

tional authority in civil cases than in criminal cases to disre-

gard current law or to treat similarly situated litigants

differently,” Harper, 509 U.S. at 97 (quoting Am. Trucking

Ass’ns, 496 U.S. at 214 (Stevens, J., dissenting)) (internal

quotation mark omitted), the Chevron Oil exception to retro-

activity must be treated as a narrow one. At a minimum, then,

we should apply the exception only where all three factors

clearly favor prospectivity. Because here the second Chevron

Oil factor weighs heavily against non-retroactive application,

and neither of the other factors provides strong support for a

purely prospective decision, Chevron Oil does not support the

majority’s decision.

III

Where the factors of Chevron Oil do not overwhelmingly

support the disfavored approach of non-retroactive applica-

tion, we should instead give effect to the “general rule of

retrospective effect for . . . constitutional decisions” that the

Supreme Court reaffirmed in Harper. Id. at 94 (quoting Rob-

inson v. Neil, 409 U.S. 505, 507 (1973)). Here, practical and

Maj. op. at 9490-93. St. Cyr is inapposite, however, because it dealt with

the retroactive effect of a statute, which is presumed to be prospective. See

Landgraf, 511 U.S. at 266, 272 (holding that in considering the retroactive

effect of statutes, we apply a “presumption against retroactiv[ity],” out of

a recognition that a “[l]egislature’s unmatched powers allow it to sweep

away settled expectations suddenly and without individualized consider-

ation”). As the Court made clear in Harper, however, we are to apply the

opposite presumption (that is, the “general rule of retrospective effect,”

509 U.S. at 94) when it comes to judicial decisions, because “[t]o do oth-

erwise is to warp the role that we, as judges, play in a Government of lim-

ited powers,” Beam, 501 U.S. at 547 (Blackmun, J., concurring in the

judgment). In other words, the Supreme Court’s analysis of “reliance” and

“fairness” in St. Cyr, 533 U.S. at 315-25, cannot dictate our analysis in this

case.

9508 NUNEZ-REYES v. HOLDER

jurisprudential considerations also weigh heavily in favor of

retroactive application of our ruling.

Practical concerns are crucial in the area of immigration

law, because regulating immigration is the prerogative of the

legislative branch. See Garcia-Ramirez v. Gonzales, 423 F.3d

935, 953 (9th Cir. 2005) (Gould, J., concurring) (“[T]he Con-

stitution gives the superordinate role to Congress, and not to

the federal courts, in regulating the flow and content of immi-

gration to the United States.”). Because Congress has “exclu-

sive power over immigration,” we have frequently stressed

the paramount importance of national uniformity in this area.

See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th

Cir. 2004) (noting the “strong interest in national uniformity

in the administration of immigration laws”); Kahn v. INS, 36

F.3d 1412, 1414 (9th Cir. 1994) (“The INA ‘was designed to

implement a uniform federal policy,’ and the meaning of con-

cepts important to its application are ‘not to be determined

according to the law of the forum, but rather require a uniform

federal definition.’ ” (alteration omitted) (quoting Rosario v.

INS, 962 F.2d 220, 223 (2d Cir. 1992))). By applying its deci-

sion overruling Lujan-Armendariz non-retroactively, where

there is no constitutional reason for doing so, the majority

usurps Congress’s authority and derogates from this principle

of national uniformity.

The Supreme Court has emphasized the substantial juris-

prudential concerns that weigh against non-retroactivity; in

fact, the Justices seem to speak directly against the approach

adopted by the majority. Justice Souter, joined by Justice Ste-

vens, asserted in Beam that “the Chevron Oil test cannot

determine the choice of law by relying on the equities of the

particular case.” Beam, 501 U.S. at 543 (Souter, J., announc-

ing the judgment of the Court). Justice Blackmun, joined by

Justices Marshall and Scalia, wrote that “[t]he nature of judi-

cial review constrains us to consider the case that is actually

before us, and, if it requires us to announce a new rule, to do

so in the context of the case and apply it to the parties who

NUNEZ-REYES v. HOLDER 9509

brought us the case to decide.” Id. at 547 (Blackmun, J., con-

curring in the judgment of the Court). Justice Scalia recog-

nized that judges in a real sense “make” law, but stated that

“they make it as judges make it, which is to say as though

they were ‘finding’ it—discerning what the law is, rather than

decreeing what it is today changed to, or what it will tomor-

row be.” Id. at 549 (Scalia, J., concurring in the judgment).

These perspectives commanded a majority of the Court in

Harper. Where, as here, the Chevron Oil factors do not

clearly support non-retroactivity, the majority’s insistence that

our ruling be given only prospective application cannot be

squared with Harper and with the Justices’ underlying con-

cerns.8

Instead of straining to make the law fit its notion of good

policy, the majority should have followed the advice of Har-

per and reserved prospective decisionmaking for the rare case

where all three Chevron Oil factors clearly point toward doing

so. Because the majority has abjured this wiser course, I

respectfully dissent.

PREGERSON, Circuit Judge, with whom Judge B.

FLETCHER joins, dissenting:

Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000),

holds that equal protection of the laws is violated by denying

Federal First Offender Act (“FFOA”) relief to aliens whose

8

A further explanation of the benefits of a firm rule of retroactivity is

set forth in Shannon, supra note 2. Professor Shannon concludes that a

firm rule of retroactivity: (1) “is more in accord with the nature of the

adjudicative function than alternatives”; (2) “is consistent with traditional

understandings of the distinction between holding and dicta”; (3) “is . . .

consistent with traditional understandings of the doctrine of stare decisis”;

and (4) “is superior to prospectivity-based approaches because it better

furthers private ordering, fair and efficient adjudication, and public confi-

dence in the judiciary.” Id. at 836-37.

9510 NUNEZ-REYES v. HOLDER

first-time minor drug offenses were expunged by a state-court

judge after the offender successfully completed a state-

approved rehabilitation program. The majority overturns this

well-established circuit precedent and in doing so overturns a

number of our cases that followed the Lujan-Armendariz rule.

In addition to the three-judge panel opinion in this case, these

overturned cases include Rice v. Holder, 597 F.3d 952 (9th

Cir. 2010), Romero v. Holder, 568 F.3d 1054 (9th Cir. 2009),

Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir. 2009),

Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001), and

Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). The

majority throws out more than ten years of our precedent

without so much as a cursory examination of the question

whether Congress intended to maintain FFOA treatment for

state-expunged first-time minor drug offenses. Specifically,

the majority fails to address the question whether Congress’s

1996 definition of “conviction,” set forth under

§ 1101(a)(48)(A) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1101(a)(48)(A), includes court-ordered

expungements at all. The majority skips over this statutory

interpretation question and improperly jumps to the constitu-

tional equal protection question instead. See, e.g., Standard

Oil Co. of California v. Arizona, 738 F.2d 1021, 1023 (9th

Cir. 1984) (“[W]e must, if at all possible, resolve cases on

statutory grounds before reaching constitutional questions”)

(citing Escambia County, Fla. v. McMillan, 466 U.S. 48, 51

(1984) (per curiam)).

To make matters worse, the majority denies the petition for

review in this case even though it decides to apply its new

rule denying state offenders FFOA relief for state-expunged

first-time drug convictions prospectively only. The result is

that the petitioner will be separated from his citizen wife and

two American-born children because of a minor drug

conviction—one that a California state judge expunged

because the petitioner successfully completed a state rehabili-

tation program. Such a result is unjust. The majority com-

pounds that injustice by ensuring that thousands of minor

NUNEZ-REYES v. HOLDER 9511

drug offenders will suffer the same cruel separation from their

families in the days ahead.

America is a second-chance nation. Each year, thousands of

people, some of them immigrants to this country, are caught

up in our justice system by making the mistake of committing

a minor drug offense. But Congress through the FFOA has

seen fit to give those folks who commit the most minor drug

offenses an opportunity—a second chance— to redeem them-

selves through rehabilitation, and thereafter walk a straight

and narrow path to become productive members of society

and a credit to their families. For some immigrants, including

thousands of lawfully-admitted residents, this second chance

also means being able to stay in the country with their fami-

lies intact. The majority’s abandonment of our precedent

today means that first-time minor drug offenders within our

circuit who have fully complied with their state’s stringent

rehabilitation programs, and who have had their minor con-

victions expunged by a state court judge, nonetheless will be

subject to removal from the United States. For them, there

will be no second chance. Thousands of families will be ren-

dered asunder, and tens of thousands of American-born chil-

dren will suffer the consequences. This harsh result, I submit,

is repugnant to the values of kindness, compassion, and fun-

damental fairness.

I therefore strongly dissent.

A.

This dissenting opinion starts out where the majority should

have, by examining the Board of Immigration Appeal’s

(“BIA”) decision in the case now before us. Analyzing

Nunez-Reyes’s petition for review, I adhere to Lujan-

Armendariz and its progeny. Because the majority walks

away from the Lujan-Armendariz rule only prospectively,1 the

1

Because I believe that the rule articulated in Lujan-Armendariz should

be upheld, I do not reach the question whether the majority’s new rule

should apply only prospectively.

9512 NUNEZ-REYES v. HOLDER

majority’s pronouncement does not apply to Nunez-Reyes’s

case.

Flavio Nunez-Reyes (“Nunez-Reyes”) is a thirty-five-year-

old national of Mexico who entered the United States without

inspection in 1992. His United States citizen wife and two

American-born children reside in San Jose, California.

In 2001, Nunez-Reyes was charged with one felony count

of possession of methamphetamine, in violation of California

Health & Safety Code § 11377(a). This felony charge was

later reduced to a misdemeanor. Nunez-Reyes was also

charged, under the same complaint, with using or being under

the influence of methamphetamine, in violation of California

Health & Safety Code § 11550(a). The charges against

Nunez-Reyes were ultimately dismissed pursuant to Califor-

nia’s expungement statute for drug possession offenses, which

states that the state court “shall . . . set aside [the conviction]

and . . . dismiss the indictment” if the defendant successfully

completes probation and that “both the arrest and the convic-

tion shall be deemed never to have occurred.” Cal. Penal

Code § 1210.1(e)(1).2

In early 2002, the federal government charged Nunez-

Reyes under 8 U.S.C. § 1182(a)(6)(A)(I) as a removable

alien. Nunez-Reyes conceded removability but applied for

adjustment of status, cancellation of removal, and, alterna-

tively, voluntary departure. The Immigration Judge (“IJ”)

held that the state conviction rendered Nunez-Reyes ineligible

for any form of relief. The BIA affirmed the IJ’s decision and

held that Nunez-Reyes could not avail himself of relief under

the FFOA because his conviction for using or being under the

influence of methamphetamine was “not one for which fed-

eral first offender treatment would be available.” The BIA

reasoned that the FFOA applies only to simple possession

2

California Penal Code § 1210.1 (2006) codifies the Substance Abuse

and Crime Prevention Act, also known as “Proposition 36.”

NUNEZ-REYES v. HOLDER 9513

offenses, and that being under the influence of methamphet-

amine is not a simple possession offense. While recognizing

that our court has applied FFOA treatment to convictions for

“lesser offenses,” the BIA held that Nunez-Reyes had not

pleaded down from a charge of simple possession and that

being under the influence of methamphetamine is not a

“lesser offense” than that of simple possession.

The matter came before our court on appeal. Under de novo

review, we faithfully applied our precedent, which holds that

state-expunged first-time drug possession dispositions that

would be eligible for FFOA treatment are not convictions for

purposes of the immigration laws. Nunez-Reyes v. Holder,

602 F.3d 1102, 1104 (9th Cir. 2010) (per curiam) (citing

Lujan-Armendariz, 222 F.3d at 734-49, and Garberding v.

INS, 30 F.3d 1187, 1190 (9th Cir. 1994)). Under the law of

our circuit, FFOA treatment also applies to a “lesser offense”

than that of simple possession of a controlled substance. See

Cardenas-Uriarte v. INS, 227 F.3d 1132, 1137 (9th Cir. 2000)

(noting that congressional intent indicated that the lesser

crime of possession of drug paraphernalia should be given

FFOA treatment). Thus, under the FFOA,

an alien cannot be deemed “convicted” for immigra-

tion purposes if he can demonstrate that (1) the con-

viction was his first offense; (2) he had not

previously been accorded first offender treatment;

(3) his conviction was for possession of drugs, or an

equivalent or lesser charge such as possession of

drug paraphernalia . . . ; and (4) he received relief

under a state rehabilitative statute.

Ramirez-Altamirano, 563 F.3d at 812 (citation omitted).

Nunez-Reyes easily met the first, second, and fourth require-

ments for FFOA relief. The only question left for the panel

was whether Nunez-Reyes’s conviction for using or being

under the influence of methamphetamine was an “equivalent

or lesser charge” than simple possession of drugs.

9514 NUNEZ-REYES v. HOLDER

Importantly, the panel relied on our court’s recent decision

in Rice v. Holder, 597 F.3d 952, 957 (9th Cir. 2010), where

we held that a misdemeanor conviction for being under the

influence of a controlled substance qualifies as a “lesser

offense” eligible for FFOA treatment. In Rice, the petitioner

was charged with one felony count of possession of cocaine

and one misdemeanor count of using or being under the influ-

ence of a stimulant under California law.3 Id. at 954. Rice

pleaded nolo contendere and was convicted of both offenses.

Id. Upon completion of three years of probation, the court set

aside Rice’s pleas of nolo contendere, entered pleas of not

guilty, and dismissed the complaint. Id. During removal pro-

ceedings, the IJ found Rice statutorily ineligible for cancella-

tion of removal because he had been convicted for violating

a controlled substance law. Id. The BIA dismissed Rice’s

appeal, holding that Rice would not have been eligible for

FFOA treatment for the offense of being under the influence

of a controlled substance because only simple possession

offenses were eligible for relief, and thus, Rice stood con-

victed for immigration purposes. Id.

In Rice, we granted the petition for review and held that

“persons convicted of using or being under the influence of a

controlled substance, where that offense is less serious than

simple drug possession, are eligible for the same immigration

treatment as those convicted of drug possession under the

FFOA.” Id. at 957. Following the precedent set forth in

Cardenas-Uriarte, 227 F.3d at 1137, we reasoned that there

was “no relevant distinction . . . between the offenses of pos-

session of drug paraphernalia and using or being under the

influence of a controlled substance, as both are generally less

serious than simple possession.” Rice, 597 F.3d at 956; see

also Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005).

We further noted that “we can be sure that using or being

3

This misdemeanor count of using or being under the influence of a

stimulant was the same violation for which Nunez-Reyes was convicted

under California Health & Safety Code § 11550(a).

NUNEZ-REYES v. HOLDER 9515

under the influence of a controlled substance is a lesser

offense because it is a misdemeanor while possession of

cocaine is a felony.”4 Id. (internal marks and citation omitted).

The BIA’s decision in Nunez-Reyes’s case was rendered

before our well-reasoned decision in Rice.

As Judge Graber’s concurrence to the panel opinion cor-

rectly points out, Rice “answered the legal questions raised in

[Nunez-Reyes’s] case, and no factual distinction exists.”

Nunez-Reyes, 602 F.3d at 1105 (Graber, J., concurring)

(emphasis added). According to our precedent, then, Nunez-

Reyes is eligible for FFOA treatment and his state-expunged

convictions cannot be used as grounds to deny him relief from

removal. The three-judge panel granted Nunez-Reyes’s peti-

tion and remanded for further proceedings. Id. The panel got

it right.

Yet, Judge Graber’s en banc majority opinion now holds

that Nunez-Reyes’s petition for review should be denied. It

does so by overruling Rice, reasoning that “being under the

influence is not a lesser crime than simple possession”

because it is “not a possession crime at all, and it is thus quali-

tatively different from any federal conviction for which FFOA

treatment would be available.” Maj. Op. at 9495. The major-

ity further reasons that “[b]eing under the influence is not a

lesser offense to simple possession because it arguably is

more serious than mere possession . . . .” Maj. Op. at 9495.

The majority’s reasoning is flawed. “Our review is limited

to the actual grounds relied upon by the BIA.” Ramirez-

Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir. 2009) (cita-

tion omitted). “If we conclude that the BIA’s decision cannot

be sustained upon its reasoning, we must remand to allow the

4

A person convicted of using or being under the influence of a con-

trolled substance in violation of California Health & Safety Code

§ 11550(a) “is guilty of a misdemeanor and shall be sentenced to serve a

term of not less than 90 days or more than one year in a county jail.”

9516 NUNEZ-REYES v. HOLDER

agency to decide any issues remaining in the case.” Id. The

BIA distinguished this case from Lujan-Armendariz because

Nunez-Reyes was charged and “convicted under California

law for using or being under the influence of methamphet-

amine.” The BIA found Nunez-Reyes’s conviction for using

or being under the influence of methamphetamine “not analo-

gous to any offense for which federal first offender treatment

would be available,” and therefore held that the conviction’s

dismissal was “not akin to an FFOA expungement.” In short,

the BIA stated that using or being under the influence of

methamphetamine did not qualify for FFOA treatment

because it was neither a simple possession offense nor a “less-

er” offense than simple possession of methamphetamine.

However, “[u]nder these circumstances, concluding that

[using or being under the influence of a controlled substance]

is not included in the First Offender Act would frustrate con-

gressional intent and lead to an absurd result.” Cardenas-

Uriarte, 227 F.3d at 1137. Congress intended the FFOA “as

a limited federal rehabilitation statute that permits first-time

drug offenders who commit the least serious type of drug

offense to avoid the drastic consequences which typically fol-

low a finding of guilt in drug cases.” Lujan-Armendariz, 222

F.3d at 735. Nunez-Reyes’s conviction for using or being

under the influence of methamphetamine is the “least serious

type of drug offense.” In contrast to Nunez-Reyes’s felony

possession of methamphetamine charge, his conviction for

using or being under the influence of methamphetamine was

a misdemeanor. See Cal. Health & Safety Code §§ 11377(a),

11550(a). And Nunez-Reyes’s drug use is not even a federal

crime: there is no equivalent federal criminal statute that pro-

hibits using or being under the influence of a controlled sub-

stance. See 21 U.S.C. §§ 841-865. If being under the

influence “arguably is more serious than mere possession

. . . [,]” Maj. Op. at 9495, the majority fails to explain why

neither Congress nor the State of California chose to treat it

as such. Thus, by denying Nunez-Reyes the benefit of FFOA

treatment for his expunged conviction for using or being

NUNEZ-REYES v. HOLDER 9517

under the influence of drugs, the majority not only frustrates

the intent of Congress but also ignores the criminal statutory

schemes of both Congress and California, which both treat

using or being under the influence as a “least serious type of

drug offense.”

Nor does the distinction between simple possession and

using or being under the influence of drugs make sense under

these circumstances. Congress criminalized the possession of

drugs, at least in part, because it did not want people to use

drugs. Thus, given the underlying purpose of the FFOA, the

FFOA’s rehabilitative scheme logically applies to protect first

time drug users, along with first time drug possessors,

“against the harsh consequences that follow from a drug con-

viction.” Lujan-Armendariz, 222 F.3d at 737.

By way of analogy, we have previously held that 8 U.S.C.

§ 1227(a)(2)(B)(i)—an exception to the automatic removabil-

ity of aliens convicted of “a single offense involving posses-

sion for one’s own use of 30 grams or less of marijuana”—

implicitly applies to both possession and actual use of mari-

juana. See Medina, 393 F.3d at 1066. This “ ‘makes absolute

logical sense’ ” because “use of drugs ‘has generally been

considered a less serious crime than possession.’ ” Id. (quot-

ing Flores-Arrellano v. INS, 5 F.3d 360, 363, n.5 (9th Cir.

1993)). Here, as in Medina, “[i]t defies reason to conclude

that Congress wanted to protect a person who possessed

[methamphetamine] in small amounts for his own use, but

then wanted to remove him from the country if he did so use

it.” Id. Thus, distinguishing between possession of drugs and

their use, allowing only the former to qualify for FFOA treat-

ment, frustrates congressional intent and leads to absurd

results.

Moreover, had Nunez-Reyes been prosecuted by the federal

government rather than by the State of California, he would

have been charged only with simple possession of metham-

phetamine because, as mentioned previously, there is no fed-

9518 NUNEZ-REYES v. HOLDER

eral criminal statute prohibiting using or being under the

influence of a controlled substance. See 21 U.S.C. §§ 841-

865. As we noted in Rice, “[a]s with possession of drug para-

phernalia, ‘Congress would never have considered including’

under the FFOA the offense of using or being under the influ-

ence of a controlled substance, because no federal statute cov-

ers that crime.” Rice, 597 F.3d at 956 (quoting Cardenas-

Uriarte, 227 F.3d at 1137, and citing 21 U.S.C. §§ 841-865);

see also Ramirez-Altamirano, 563 F.3d at 808. In fact, federal

law imposes only a civil penalty for possession of a controlled

substance in “an amount that, as specified by regulation of the

Attorney General, is a personal use amount . . . .” 21 U.S.C.

§ 844a. Thus, Nunez-Reyes would have qualified for FFOA

treatment had he been fortunate enough to have been caught

by federal agents rather than by state officers.

To support its position, the majority claims that in

Cardenas-Uriarte, 227 F.3d at 1137, and Ramirez-

Altamirano, 563 F.3d at 808-09, “it was clear that the convic-

tion was for a ‘lesser offense’ because the alien was convicted

of a single crime that carried a lesser penalty than the crime

of simple possession.” Maj. Op. at 9494-95. Contrary to this

reasoning, however, neither case relies on the number of con-

victions or on the fact of “possession.” In Cardenas-Uriarte,

possession of drug paraphernalia under Arizona law was con-

sidered a “lesser offense” not because it was the only offense

the petitioner had pleaded to, but because “it would be a mis-

demeanor once probation was successfully completed while

possession of the drugs would have been a felony.” 227 F.3d

at 1137. In Ramirez-Altamirano, the possession of drug para-

phernalia offense under California law was considered a

“lesser offense” because “it would be absurd to deny [FFOA]

relief to individuals who possess the utensils incidental to

drug ingestion but grant relief to those who possess the actual

illicit drugs,” not because the petitioner pleaded guilty to only

the misdemeanor paraphernalia possession charge. 563 F.3d

at 809. Thus, in neither case was the number of offenses or

NUNEZ-REYES v. HOLDER 9519

the fact of “possession” dispositive. The majority’s conclu-

sion, therefore, remains unsupported.

***

It is difficult to square the majority’s prospective-only

application of the new rule it sets out today with the denial of

Nunez-Reyes’s petition for review. As the majority recog-

nizes, a substantial number of aliens acted in reliance on

Lujan-Armendariz when they pleaded guilty to drug crimes

under state law. Maj. Op. at 9490-91. Relying on equitable

considerations, the majority concludes that we must protect

the reliance interests of those state offenders who may have

forgone their constitutional rights under the reasonable belief

that they would not face harsh immigration consequences for

pleading guilty and undergoing rehabilitative drug treatment.

Maj. Op. at 9492-94. The majority recognizes that Lujan-

Armendariz applies to the petitioner, Nunez-Reyes, but still

denies his petition for review. The majority fails, however, to

distinguish Lujan-Armendariz and its progeny from Nunez-

Reyes’s case. Nor can the majority adequately explain why

Rice was wrongly decided. Therefore, under Lujan-

Armendariz, Cardenas-Uriarte, Ramirez-Altamirano, and

Rice, I would grant Nunez-Reyes’s petition for review.

B.

The majority’s review of the BIA’s opinion flawed. Addi-

tionally, it remains unclear why the majority opinion even

reaches the issue of Lujan-Armendariz’s viability. The BIA,

in Nunez-Reyes’s case, distinguished Lujan-Armendariz to

the majority’s satisfaction, but, puzzlingly, the opinion

devotes the bulk of its efforts to overruling Lujan-

Armendariz. Because we must limit our review to grounds

actually discussed by the BIA, this ruling is out of bounds and

entirely improper. Pascua v. Holder, ___ F.3d ___, 2011 WL

1024434, at *1 (9th Cir. Mar. 23, 2011).

9520 NUNEZ-REYES v. HOLDER

Moreover, the majority overrules Lujan-Armendariz on

constitutional grounds without addressing the independent

statutory justification, on which Lujan-Armendariz expressly

relied, for excluding state-expunged dispositions from the def-

inition of “conviction.” 222 F.3d at 739-43, 745-46. Prudence

counsels that we exert more effort before abandoning such

long-established, eleven-year-old precedent.

1.

In Lujan-Armendariz, based in part on an equal protection

analysis, we held that “persons whose offenses would qualify

for treatment under the [FFOA] but who are convicted and

have their convictions expunged under state laws may not be

removed on account of those offenses.” 222 F.3d at 732. In

so holding, Lujan-Armendariz faithfully adhered to congres-

sional intent underlying the FFOA in “permit[ting] first-time

drug offenders who commit the least serious type of drug

offense to avoid the drastic consequences which typically fol-

low a finding of guilt in drug cases.” Id. at 735.

Given the FFOA’s directive that dispositions eligible for

FFOA relief “shall not be considered a conviction for the pur-

pose of a disqualification or a disability imposed by law upon

conviction of a crime, or for any other purpose,” 18 U.S.C.

§ 3607(b) (emphases added), we must give meaning to the

statute within the immigration context. As both the majority

and the Supreme Court recognize, “deportation is an integral

part—indeed, sometimes the most important part—of the pen-

alty that may be imposed on noncitizen defendants who plead

guilty to specified crimes.” Maj. Op. at 9491 (citing Padilla

v. Kentucky, 130 S. Ct. 1473, 1480 (2010)). And there can be

little doubt that the “particularly severe ‘penalty’ ” of

removal, id. at 1481, is one of the most “drastic conse-

quences” that results from a drug conviction. To fully effectu-

ate Congress’s intent to insulate first-time drug offenders who

complete expungement programs from the extremely harsh

consequences that would otherwise result from their actions,

NUNEZ-REYES v. HOLDER 9521

FFOA relief must apply not only to eligible aliens convicted

of federal offenses, but also to those convicted of state

offenses. Otherwise, the FFOA loses much of its efficacy

because the relief it offers can be circumvented via the state

criminal justice system.

2.

Keeping these principles in mind, even if the equal protec-

tion analysis set forth in Lujan-Armendariz is abandoned, it

does not follow that state-expunged first-time drug offense

convictions are ineligible for FFOA treatment. In Lujan-

Armendariz, we did not consider what effect the 1996 amend-

ment to the term “conviction,” promulgated in 8 U.S.C.

§ 1101(a)(48)(A), had on state expungements specifically.

Instead, we held that the 1996 amendment did not repeal the

FFOA and we then simply extended this conclusion to state

expungements on the basis of equal protection. 222 F.3d at

742-43. Put another way, Lujan-Armendariz’s equal protec-

tion rationale had necessary force only absent an answer to

the question of “what effect the new definition [of conviction]

has on state expungements under state rehabilitation laws in

general.” 222 F.3d at 742. Assuming that Lujan-Armendariz’s

equal protection analysis no longer stands, we must now

engage in this statutory analysis.

Congress’s 1996 amendment to the term “conviction” sug-

gests that it had no intention of altering the BIA’s decisions

to include state- and federally-expunged convictions from that

term. The majority, in leaping to the conclusion that equal

protection is not violated because Congress could have made

a decision to treat similarly-situated aliens differently under

rational basis review, declines to engage in any analysis,

through statutory interpretation or otherwise, of whether Con-

gress actually intended to do so. The majority simply assumes

that “Congress intended that convictions for state-law simple

possession have adverse immigration consequences,” Maj.

Op. at 9493, but fails to explain from where it divines such

9522 NUNEZ-REYES v. HOLDER

congressional intent. We should not prematurely review Con-

gress’s purported distinction between state and federal

expungement under a cursory form of rational basis review

without first looking at the relevant statutes to determine

whether Congress actually intended for such a distinction to

exist.

In 1996, Congress addressed the meaning of the term “con-

viction” by enacting the following definition:

The term “conviction” means, with respect to an

alien, a formal judgment of guilt of the alien entered

by a court or, if adjudication of guilt has been with-

held, where—

(I) a judge or jury has found the alien guilty or the

alien has entered a plea of guilty or nolo contendere

or has admitted sufficient facts to warrant a finding

of guilt, and

(ii) the judge has ordered some form of punishment,

penalty, or restraint on the alien’s liberty to be

imposed.

8 U.S.C. § 1101(a)(48)(A).

The legislative history behind the 1996 amendment to the

definition of “conviction” fully supports the conclusion that

state-expunged first-time drug possession offenses are not

“convictions” under § 1101(a)(48)(A) of the INA. 222 F.3d at

739-43. In enacting 8 U.S.C. § 1101(a)(48)(A), Congress

adopted most of the BIA’s definition of “conviction,” as it

was laid out in Matter of Ozkok, 19 I. & N. Dec. 546, 551-52

(BIA 1988). Notably, the amended definition makes no men-

tion of “the rule, cited with approval by the BIA in Ozkok,

that expunged convictions cannot serve as the basis for depor-

tation.” Lujan-Armendariz, 222 F.3d at 742 n.23. Moreover,

Congress promulgated its new definition of “conviction” just

NUNEZ-REYES v. HOLDER 9523

after the BIA reaffirmed its rule that immigration conse-

quences do not attach to state-expunged first-time drug pos-

session offenses, and that they would be treated the same as

federal convictions expunged under the FFOA. See Matter of

Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995). As amicus

points out, when Congress adopts an agency interpretation,

Congress intends the agency construction to be incorporated

into the statute. See Davis v. Mich. Dep’t of Treasury, 489

U.S. 804, 813 (1989) (When Congress “codifies a judicially

defined concept, . . . absent an express statement to the con-

trary, . . . Congress intended to adopt the interpretation placed

on that concept by the courts.”); Lorillard v. Pons, 434 U.S.

575, 581 (1977) (the presumption that Congress acted with

knowledge is particularly appropriate where Congress “exhib-

ited both a detailed knowledge of the [incorporated] provi-

sions and their judicial interpretation and a willingness to

depart from those provisions regarded as undesirable or inap-

propriate for incorporation.”); Hing Sum v. Holder, 602 F.3d

1092, 1099-1101 (9th Cir. 2010) (Where Congress uses terms

that have settled meanings in BIA case law, “Congress means

to incorporate the established meaning of these terms.”).

We have previously acknowledged that the 1996 amend-

ment to the definition of “conviction” in § 1101(a)(48)(A)

“said nothing about expungement, and could well be inter-

preted to establish only when a conviction occurred without

determining what might be the effect of a later expungement.”

Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001)

(citing to Lujan-Armendariz, 222 F.3d at 741-42). And, nota-

bly, consistent with every other circuit, the majority does not

overrule Lujan-Armendariz’s holding that the 1996 amend-

ment to the definition of “conviction” in § 1101(a)(48)(A) of

the INA did not expressly or impliedly repeal the FFOA. Its

holding thereby leaves intact the FFOA’s exception for

expunged first-time controlled substance offenses from the

definition of “conviction.” See Lujan-Armendariz, 222 F.3d at

737.

9524 NUNEZ-REYES v. HOLDER

Thus, in enacting the 1996 amendment, “it appears that

Congress was concerned primarily . . . with the question

whether aliens could be deported during the period that fol-

lowed a determination of guilt but preceded the expungement

of the offense,” but had no intention of altering the longstand-

ing rule that convictions that are subsequently expunged

under either federal or state law “no longer have any effect for

immigration” purposes. Id. at 742 n.23. Congress’s decision

to enact essentially verbatim the majority of Ozkok’s defini-

tion of conviction, while excluding only one part of that defi-

nition that has no bearing here, makes it particularly

appropriate to read § 1101(a)(48)(A) as incorporating the

agency’s treatment of expunged convictions. Evidently, Con-

gress approved the rule established by the BIA in Manrique

and recognized in Ozkok.

An analysis of the relevant statutes and their history reveals

an independent justification for excluding first-time minor

drug offenses expunged under state law from the definition of

“conviction” in § 1101(a)(48)(A). Congress evidently

approved of the long-standing principle that state-expunged

first-time simple possession convictions do not carry adverse

immigration consequences and, in enacting the 1996 amend-

ment, had no intention of disturbing it.

3.

In failing to reach this statutory question and instead rely-

ing only on its equal protection analysis, the majority implic-

itly defers to the BIA’s post-1996 interpretation of

“conviction,” which followed the promulgation of

§ 1101(a)(48)(A) of the INA. See, e.g., Murillo-Espinoza, 261

F.3d at 774 (according Chevron deference to the BIA’s “per-

missible construction of the [INA] statute”).

After the 1996 amendments to § 1101(a)(48)(A), the BIA

reversed its previous course and held that the 1996 definition

of “conviction” includes convictions expunged under state

NUNEZ-REYES v. HOLDER 9525

rehabilitative statutes. In re Salazar-Regino, 23 I. & N. Dec.

223, 235 (BIA 2002) (en banc). Pursuant to this interpretation,

the BIA, since 2002, has refused to follow in other circuits

our circuit’s application of FFOA treatment to first-time drug

offenses expunged under state law. Id. at 235 (stating that the

BIA “decline[s] to apply the ruling in [Lujan-Armendariz] to

cases arising outside of the jurisdiction of the Ninth Circuit”).

In so doing, the BIA has implicitly rejected the statutory ratio-

nale for treating state and federal expungements equally, and

has instead relied only on the equal protection holding of

Lujan-Armendariz on appeals within this circuit.

We need not, however, defer to the BIA’s interpretation of

the term “conviction” as it is used in § 1101(a)(48)(A). Defer-

ence to the BIA’s interpretation of a “statute which it adminis-

ters” is proper under Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).

Deference to the BIA’s interpretation of the definition of

“conviction” as used in § 1101(a)(48)(A), however, is entirely

inappropriate, because that term is used not only for purposes

of immigration law, but also in the criminal law context. Spe-

cifically, § 1101(a)(48)(A)’s definition of conviction controls

the meaning of the term in the federal illegal reentry statute,

8 U.S.C. § 1326, and is correspondingly referenced in the

United States Sentencing Guidelines. Because “a criminal

statute[ ] is not administered by any agency but by the

courts,” its interpretation is our independent responsibility.

Crandon v. United States, 494 U.S. 152, 177 (1990); see also

de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir.

2007) (stating that no deference is owed to the BIA’s interpre-

tation of statutes it does not administer, including the FFOA).

The Supreme Court has decided many cases concerning the

term “aggravated felony”—which, like “conviction,” is

defined in § 1011(a) and used in § 1326—without deferring to

the BIA and without applying the Chevron framework. See,

e.g., Carachuri-Rosendo v. Holder, 560 U.S. __, 130 S. Ct.

2577 (2010); Nijhawan v. Holder, 129 S. Ct. 2294 (2009);

9526 NUNEZ-REYES v. HOLDER

Lopez v. Gonzales, 549 U.S. 47 (2006); Leocal v. Ashcroft,

543 U.S. 1 (2004). Similarly, here, we must conduct our own

interpretation of the statute and need not defer to the BIA’s

interpretation of “conviction.” Because construction of this

term has consequences for the administration of criminal law,

it is the independent duty of the judiciary, and not the BIA,

to assign to the term a meaning.

Relatedly, even if, in discharging our duty, we were to find

that § 1101(a)(48)(A) is ambiguous, its application in the

criminal law context requires us to “resolve the ambiguity

favorably to the alien, pursuant to the principle of lenity appli-

cable with respect to the gravity of removal.” Retuta v.

Holder, 591 F.3d 1181, 1189 (9th Cir. 2010) (citing INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987), and Lara-

Cazares v. Gonzales, 408 F.3d 1217, 1221 (9th Cir. 2005)).

The majority entirely fails to consider how its holding will

apply to criminal laws.

C.

As the previous analysis reveals, an independent statutory

justification can rescue the state-expungements holding of

Lujan-Armendariz and its progeny. Nonetheless, that decision

was properly decided on the basis of its equal protection anal-

ysis. I reject the majority’s equal protection analysis in this

case, by which it overrules Lujan-Armendariz.

The rule we articulated in Lujan-Armendariz derives from

our holding in Garberding v. INS, 30 F.3d 1187, 1191 (9th

Cir. 1994). Under Garberding, “persons who received the

benefit of a state expungement law were not subject to depor-

tation as long as they could have received the benefit of the

[FFOA] if they had been prosecuted under federal law.”

Lujan-Armendariz, 222 F.3d at 738. Garberding’s equal pro-

tection analysis focused on whether similarly-situated aliens

could be treated differently based on their conduct. Id. “Gar-

berding . . . establishes that aliens may not be treated differ-

NUNEZ-REYES v. HOLDER 9527

ently based on the ‘mere fortuity’ that they happen to have

been prosecuted under state rather than federal law, or under

different state laws, as there is no rational basis for distin-

guishing among the affected groups.” Id. at 748. Lujan-

Armendariz simply adopted and applied that same principle

after finding that Congress’s new definition of “conviction”

had not repealed the FFOA’s first-time offense exception. Id.

at 742. We applied equal protection because “no rational basis

exists for affording [FFOA] relief to an alien under federal

expungement law while denying relief to identically situated

aliens who qualify for similar treatment under state expunge-

ment laws.” Id. at 743 n.24.

1.

The majority offers two purportedly rational bases for not

extending FFOA treatment to aliens whose convictions have

been expunged under state law. First, the majority adopts the

rationale offered by the Third Circuit in Acosta v. Ashcroft,

341 F.3d 218, 227 (3d Cir. 2003), that

Congress may have been unfamiliar with the opera-

tion of state schemes that resemble the FFOA. Con-

gress 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 advan-

tage of those state schemes to escape what is consid-

ered a conviction under state law.

This rationale, however, is belied by the fact that the FFOA

requires that the offender “has not, prior to the commission of

[a simple possession] offense, been convicted of violating a

Federal or State law relating to controlled substances.” 18

U.S.C. § 3607(a)(1). If Congress was worried that state crimi-

nal justice schemes, overwhelmed by heavy caseloads, might

allow dangerous offenders to plead down, they presumably

also recognized that offenders could simply plead to some-

9528 NUNEZ-REYES v. HOLDER

thing other than a violation of a controlled substances law and

thereby achieve the same result.

Moreover, the Supreme Court has recently held, in the con-

text of determining what constitutes an “aggravated felony,”

that the immigration consequences of state convictions must

be applied as if the offense had been prosecuted in federal

court. See Lopez v. Gonzales, 549 U.S. at 47; Carachuri-

Rosendo, 130 S. Ct. at 2577. If Congress is willing to

acknowledge that state convictions have force in the federal

immigration context, it seems wholly inconsistent to assume

that Congress intended to treat state expungements differ-

ently.

2.

The second purportedly rational basis offered by the major-

ity is slightly more plausible. Because not all states have

expungement schemes, the majority offers, “Congress reason-

ably could have concluded that, in the strong interest in uni-

formity, it would not recognize any state expungements rather

than adopt a piecemeal approach.” Maj. Op. at 9486 (citing

Nunez-Reyes, 602 F.3d at 1107 (Graber, J., concurring)).

This rationale, however, is also flawed. First, under the

majority’s reasoning, Congress’s hypothetical interest in uni-

formity cuts both ways. The majority opinion assumes that

Congress’s interest in uniformity in the immigration context

requires leveling down to the lowest common denominator

and excluding all state-expunged convictions from FFOA

treatment. But the FFOA ensures its own uniformity by pro-

viding that all offenses expunged under the Act will not be

regarded as convictions “for any . . . purpose.” 18 U.S.C.

§ 3607(b). There is no reason to believe that Congress’s inter-

est in uniformity among the states is more important than

Congress’s interest in uniformity in the treatment of first-time

drug offenders whose convictions have been expunged.

NUNEZ-REYES v. HOLDER 9529

Notably, aliens whose state convictions have been

expunged are not similarly situated to those whose states have

no expungement schemes in place. Aliens whose convictions

were expunged under state expungement schemes have under-

gone court-mandated rehabilitation. The FFOA was passed to

ensure that those first-time offenders who undergo rehabilita-

tive measures and ultimately get their charges dismissed or

their convictions expunged are afforded a second chance. The

only aliens who meet this criteria are those in states with

expungement schemes. Unlike the disparity created by the

majority, then, distinguishing between aliens in states with

expungement schemes and those in states that do not have

expungement schemes survives rational basis review and

undermines neither Congress’s intent under the FFOA, nor

states’ rehabilitative schemes.

Second, I note that any alien, from any state, may have his

first-time federal drug offense expunged under the FFOA and

that offense can no longer be considered as a basis for

removal. It is not the case, therefore, that affording state

expungements FFOA treatment would render aliens from

states without state expungement schemes entirely ineligible

for FFOA treatment, while those from states with expunge-

ment schemes would qualify for such treatment. Any and all

may receive such treatment for federal convictions expunged

under the FFOA. To the contrary, then, FFOA treatment of

state expungements ensures that aliens from states that offer

alternatives to federal expungement programs are not severely

punished merely because they were presented with and took

such an alternative.

3.

There is simply no principled reason why Congress should

treat offenses subject to state expungement differently from

identical or lesser offenses that would have been eligible for

FFOA treatment had they been prosecuted as federal crimes.

Equal protection considerations prohibit unequal treatment of

9530 NUNEZ-REYES v. HOLDER

similarly-situated individuals. See Garberding, 30 F.3d at

1190. Aliens who have committed identical offenses and have

their convictions expunged, whether directly through the

FFOA or as a result of a state rehabilitation scheme, are simi-

larly situated. Under Lujan-Armendariz, the question has

always been whether the expunged offense would have been

covered under the FFOA if charged as a federal crime. 222

F.3d at 738 n.18. And we have been consistent in asking and

answering that question. See Ramirez-Altamirano, 563 F.3d at

810. To do otherwise would be to allow non-citizens’ due

process rights to hinge on jurisdictional happenstance. As we

stated in Lujan-Armendariz, “there is no rational basis for a

federal statute that treats persons adjudged guilty of a drug

offense under state law more harshly than persons adjudged

guilty of the identical offense under federal law.” Id. at 749.

Lujan-Armendariz’s equal protection analysis was based in

part on the irrationality of treating aliens differently based on

the “mere fortuity” whether a federal prosecutor sends a drug

case to the state prosecutor or chooses to keep it, or vice

versa. 222 F.3d at 738 (citing Paredes-Urrestarazu v. INS, 36

F.3d 801, 811 (9th Cir. 1994)). Without the equal treatment

afforded under Lujan-Armendariz, this unfettered prosecu-

torial discretion may now be exercised to dispositively deter-

mine whether an individual’s first-time drug offense will yield

extremely harsh immigration consequences; that is, whether

any particular defendant will benefit from the FFOA. This

result is unsettling, to say the least.

Our precedent requires that we give extra deference to Con-

gress in the immigration context. Abebe v. Mukasey, 554 F.3d

1203, 1206 (9th Cir. 2009). But we cannot allow “rational

basis review” to serve as a rubber stamp to what a hypotheti-

cal Congress might have intended. “Justifications for overrul-

ing one of our court’s longstanding precedents should be

made of sterner stuff. . . . We must place some rational

bounds on what survives rational basis review if the constitu-

tional right of equal protection is to have any meaning what-

NUNEZ-REYES v. HOLDER 9531

soever outside the context of suspect classifications.” Id. at

1210 (9th Cir. 2009) (Clifton, J., concurring); see also id. at

1215 (Thomas, J., dissenting) (“[I]n order to be rational, the

reason must be consistent[.]”). Until now, employing the

rational basis test, we treated similarly-situated first-time drug

offenders equally. I see no reason to abandon that practice,

particularly when any rational basis now offered is no more

or less true today than it was eleven years ago when we

decided Lujan-Armendariz.

The majority offers what it believes to be some consolation

to non-citizen first-time drug offenders: from now on, “aliens

will be able to make a fully informed decision whether to

plead guilty or to exercise their constitutional rights, such as

the right to trial by jury.” Maj. Op. at 9492. But it will be of

little comfort to aliens charged with first-time possession

offenses that their decision to plead or go to trial will be ren-

dered with full awareness of the immigration consequences of

such a conviction. Non-citizens will no longer be able to

avoid the most drastic consequence of all—removal—by

pleading guilty. This will further undermine state rehabilita-

tive schemes because it will remove a tremendous incentive

for first-time drug offenders to plead guilty. As amicus point

out, this change in the cost-benefit analysis directly eviscer-

ates the effectiveness of states’ rehabilitative statutes that, like

the FFOA, aim to remove the legal consequences of a minor,

first-time drug offense for those offenders who successfully

complete their probationary requirements and undergo drug

treatment.

Finally, the notion that state expungement programs should

be given different or less significant treatment than their fed-

eral counterparts is directly at odds with the principle of

“comity” and respect for state court proceedings and pro-

cesses that federal courts have embraced in other areas. See,

e.g., Harrington v. Richter, 131 S. Ct. 770, 784-86 (2011)

(state court proceedings are the “central process” through

which federal habeas claims should be adjudicated, and fed-

9532 NUNEZ-REYES v. HOLDER

eral court may not impose requirements that “undercut state

practices designed to preserve the integrity of the case-law

tradition”). It is lamentable that, while federal courts apply

extreme deference to state laws and procedures in contexts

where they might serve to frustrate the vindication of consti-

tutional or federally-protected rights, we refuse to recognize

state programs in the context where they might serve to trig-

ger the FFOA in a manner completely consistent with con-

gressional intent. See Beard v. Kindler, 130 S. Ct. 612, 618-19

(2009) (“In light of . . . federalism and comity concerns . . .

it would seem particularly strange to disregard state . . . rules

that are substantially similar to those to which we give full

force in our own courts.”). Though some of our sister circuits

may ascribe to Congress little faith in state court rehabilitative

schemes, we should not feel so bound. Cf. Acosta, 341 F.3d

at 227.

D.

There is one thing on which we all can agree: “Reliance on

the clear, binding precedent of Lujan-Armendariz strikes us as

entirely reasonable and prudent, particularly in light of Con-

gress’s inaction, the Supreme Court’s steady denial of certio-

rari in cases raising this issue, and our own consistent

application (and, arguably, expansion) of the precedent in a

series of cases spanning more than a decade.” Maj. Op. at

9492 n.6. To this list of reasons we can add one more: the

holding in Lujan-Armendariz itself is entirely reasonable and

prudent. Moreover, there is no compelling reason why we

should overrule Lujan-Armendariz without first engaging in a

thorough statutory analysis. Such an analysis reveals that

Congress never intended to exclude state-expunged first-time

drug possession dispositions from the definition of “convic-

tion” in § 1101(a)(48)(A) of the INA.

For all of the foregoing reasons, I would grant Nunez-

Reyes’s petition for review and hold that his two misdemea-

nor convictions are eligible for FFOA treatment. While the

NUNEZ-REYES v. HOLDER 9533

rational basis test sets a low bar, there is simply no indication

that Congress intended to deny FFOA treatment to aliens with

state-expunged first-time minor drug offenses who have suc-

cessfully undergone a state-approved program that resulted in

their rehabilitation. In fact, the majority’s opinion serves to

undermine Congress’s evidenced intent. Unless and until we

are willing to engage in a thorough analysis of the definition

of “conviction” under the INA, we should adhere to the prin-

ciple of stare decisis and demonstrate restraint. This is partic-

ularly true where, as here, reexamining and casting aside our

precedent is unnecessary to deciding the case before us.

Because the majority ultimately reaches further than it needs

to, without digging deeper than it ought to, I dissent.