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,

v.  Agency No.

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

November 6, 2009—San Francisco, California

Filed April 23, 2010

Before: Betty B. Fletcher, William C. Canby, Jr., and

Susan P. Graber, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Graber

6053

NUNEZ-REYES v. HOLDER 6055

COUNSEL

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

cisco, California, for the petitioner.

Erica Miles and Keith I. Bernstein, Office of Immigration Lit-

igation, Civil Division, United States Department of Justice,

Washington, D.C., for the respondent.

OPINION

PER CURIAM:

Petitioner Flavio Nunez-Reyes, a native and citizen of

Mexico, petitions for review of the Board of Immigration

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

cellation of removal. We grant the petition and remand for

further proceedings.

Nunez-Reyes 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

6056 NUNEZ-REYES v. HOLDER

dismissed the charges under California Penal Code section

1210.1. Under that provision, the state court “shall . . . set

aside [the conviction] and . . . dismiss the indictment” if the

defendant successfully completes probation and other condi-

tions are met. Id. § 1210.1(e)(1). “[E]xcept as provided [in

other subsections], both the arrest and the conviction shall be

deemed never to have occurred.” Id.

In early 2002, the federal government issued a notice to

appear, charging Nunez-Reyes as removable. Nunez-Reyes

conceded removability but applied for adjustment of status

due to his marriage to a United States citizen and cancellation

of removal. After a series of hearings, the immigration judge

(“IJ”) denied all forms of relief and ordered Nunez-Reyes

removed. The IJ held that the state convictions rendered

Nunez-Reyes ineligible for any form of relief, regardless of

whether the convictions had been dismissed.

On appeal, the BIA affirmed the IJ’s decision. The BIA

held that Nunez-Reyes’ conviction for being under the influ-

ence of methamphetamine was a “conviction” for purposes of

the immigration laws, and was “not one for which federal first

offender treatment would be available.” The BIA explained

that the Federal First Offender Act (“FFOA”), 18 U.S.C.

§ 3607, “applies only to simple possession offenses described

in 21 U.S.C. § 844.” While recognizing that the Ninth Circuit

has applied FFOA treatment to convictions for “lesser”

offenses, the BIA reasoned that this expanded FFOA treat-

ment applied only when the defendant had pleaded down

from a charge explicitly covered by the FFOA, which Nunez-

Reyes had not done. Further, the BIA found that the crime of

being under the influence of a particular drug was not a lesser

offense than simple possession. Because Nunez-Reyes’ con-

viction would not have been eligible for FFOA treatment, the

BIA explained, the expungement under California law did not

erase the conviction for immigration purposes. Thus, the BIA

held, Nunez-Reyes remained convicted of the controlled sub-

NUNEZ-REYES v. HOLDER 6057

stance offense and could not demonstrate eligibility for can-

cellation of removal.

We review de novo the BIA’s legal determinations.

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

2009). “We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D)

to review the BIA’s determination that a controlled substance

conviction precludes immigration relief as a matter of law.”

Id. “Our review is limited to the actual grounds relied upon

by the BIA.” Id. If the BIA’s decision cannot be sustained

upon its reasoning, we must remand to allow the agency to

decide any issues remaining in the case. Id.

[1] In general, the FFOA permits federal courts to expunge

a federal conviction for simple possession of drugs if the

defendant has not previously been subject to an FFOA

expungement and successfully completes up to one year of

probation. 18 U.S.C. § 3607. The FFOA mandates that a suc-

cessfully expunged conviction “shall not be considered a con-

viction for the purpose of a disqualification or a disability

imposed by law upon conviction of a crime, or for any other

purpose.” Id. § 3607(b). Interpreting that provision, we have

held that an alien has not been “convicted” if his or her fed-

eral conviction had been expunged under the provisions of the

FFOA and that equal protection requires us to treat the

expungement of a state conviction for simple possession in

the same manner. Lujan-Armendariz v. INS, 222 F.3d 728,

734-49 (9th Cir. 2000); Garberding v. INS, 30 F.3d 1187,

1190 (9th Cir. 1994). We applied this logic in Cardenas-

Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000), to the crime of

possession of drug paraphernalia, reasoning that it, too, is a

lesser offense than simple possession and thus qualifies for

FFOA treatment if expunged under state law. Cardenas-

Uriarte, 227 F.3d at 1137. We reasoned that Congress would

not have considered including possession of drug parapherna-

lia under the FFOA because it is not a federal crime, but that

congressional intent indicated the lesser crime of possession

of drug paraphernalia should be given FFOA treatment. Id.

6058 NUNEZ-REYES v. HOLDER

[2] Of particular relevance here, we recently held in Rice

v. Holder, 597 F.3d 952 (9th Cir. 2010), that an individual

convicted for the first time in state court of using or being

under the influence of a controlled substance was eligible for

the same immigration treatment as individuals convicted of

drug possession under the FFOA. Rice, 597 F.3d at 957.

There, the petitioner was charged with one felony count of

possession of cocaine and one misdemeanor count of using or

being under the influence of a stimulant under California law.

Id. at 954. He pleaded nolo contendere and was convicted. Id.

The court suspended the sentence and gave the petitioner

three years of supervised probation. Id. At the completion of

the probation term, the court set aside the nolo contendere

pleas, entered not guilty pleas, and dismissed the original

complaint. Id. The BIA, however, held that the petitioner’s

conviction for being under the influence rendered him ineligi-

ble for relief. Id. The BIA ruled that the crime of being under

the influence was not eligible for FFOA relief because the

FFOA applies only to simple possession offenses. Id.

We reversed, relying on Cardenas-Uriarte, and held that

there was “no relevant distinction for present purposes

between the offenses of possession of drug paraphernalia and

using or being under the influence of a controlled substance,

as both are generally less serious than simple possession.” Id.

at 956. “As with possession of drug paraphernalia, ‘Congress

would never have considered including’ under the FFOA the

offense of using or being under the influence of a controlled

substance, because no federal statute covers that crime.” Id.

(quoting Cardenas-Uriarte, 227 F.3d at 1137).

[3] Here, as in Rice, Nunez-Reyes was charged with one

count of felony possession and one misdemeanor count of

being under the influence. He pleaded guilty and the state

court dismissed the charges under California Penal Code sec-

tion 1210.1. Thus, “the arrest and the conviction shall be

deemed never to have occurred,” id. § 1210.1(e)(1), and the

conviction cannot be used to render Nunez-Reyes ineligible

NUNEZ-REYES v. HOLDER 6059

for cancellation of removal. As in Cardenas-Uriarte and Rice,

“[w]e can be sure that [being under the influence] is a lesser

offense because it would be a misdemeanor once probation

was successfully completed while possession of the drugs

would have been a felony.” Cardenas-Uriarte, 227 F.3d at

1137; see also Rice, 597 F.3d at 956. Thus, we hold that

Nunez-Reyes’ expunged conviction under California Health

and Safety Code section 11550(a) for being under the influ-

ence may not be treated as a “conviction” for purposes of the

immigration laws.

We also reject the BIA’s holding that our reasoning in

Cardenas-Uriarte is undermined because Nunez-Reyes “was

charged with the same offense to which he ultimately pleaded

guilty; he did not ‘plead down’ from a charge of simple pos-

session.” The holding in Rice clarifies, as we do here, that

expanded FFOA treatment of lesser crimes does not depend

on whether the petitioner originally was charged with simple

possession and pleaded down from the charge. The proper

focus is the petitioner’s conduct, not the prosecutor’s conduct.

See, e.g., Ramirez-Altamirano, 563 F.3d at 809 (stating that

“ ‘the critical question is . . . what [the petitioner] did’ ” (alter-

ation in original) (quoting Lujan-Armendariz, 222 F.3d at 738

n.18)).

We decline to address the government’s other arguments

concerning grounds on which the BIA did not rely. Because

“we conclude that the BIA’s decision cannot be sustained

upon its reasoning, we must remand to allow the agency to

decide any issues remaining in the case.” Id. at 804 (internal

quotation marks omitted).

Petition GRANTED; REMANDED for further proceed-

ings.

6060 NUNEZ-REYES v. HOLDER

GRABER, Circuit Judge, concurring:

Our recent opinion in Rice v. Holder, 597 F.3d 952 (9th

Cir. 2010), answered the legal questions raised in this case,

and no factual distinction exists. Therefore, I am compelled to

concur in the per curiam opinion. See generally Miller v.

Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc).

I write separately, however, to express my disagreement

with our underlying rule that equal protection principles

require Congress to treat aliens subject to a state expungement

identically to aliens subject to a federal expungement. Though

the genesis of that conclusion is understandable, its continued

application is unjustified. Like others, I think that we should

revisit our current rule. See Rice, 597 F.3d at 957-58 (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); see also Dillingham

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

dissenting) (suggesting that the rule is incorrect but conclud-

ing that, “for purposes of this case, that is neither here nor

there”).

In the years following the 1970 enactment of the Federal

First Offender Act (“FFOA”), the BIA held that an expunged

state conviction for simple possession of drugs was not a

“conviction” for purposes of the immigration laws, provided

that the state expungement statute was a “state counterpart” to

the FFOA. In re Deris, 20 I. & N. Dec. 5, 11 (B.I.A. 1989);

In re Werk, 16 I. & N. Dec. 234, 235 (B.I.A. 1977). In many

states, the state expungement statute qualified as a “state

counterpart” to the FFOA, and an alien’s expunged conviction

generally had no bearing on his or her rights under the immi-

gration laws. In other states, however, the state expungement

statute was not a “state counterpart” to the FFOA because it

permitted expungement of crimes of greater seriousness than

simple possession. In re Deris, 20 I. & N. Dec. at 11. In those

states, all expungements were invalid for purposes of the

NUNEZ-REYES v. HOLDER 6061

immigration laws, even if the alien in question had been con-

victed only of simple possession. Id.

In Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994),

we held that the BIA’s rule violated equal protection princi-

ples as applied to the petitioner’s expunged Montana convic-

tion for simple possession: “[T]here is no rational basis for

treating Garberding differently. Had she possessed her mari-

juana in Michigan, Virginia or Wisconsin, she would not have

been subject to deportation.” We explained: “The state legis-

lature in Montana has seen fit to extend the privilege of

expungement to persons who are convicted of drug offenses

more serious than Garberding’s simple first time possession.

It is this fortuitous circumstance, not Garberding’s conduct,

which the INS used to distinguish her for deportation.” Id. at

1191. The next year, the BIA accepted our persuasive reason-

ing and adopted our approach. In re Manrique, 21 I. & N.

Dec. 58 (B.I.A. 1995).

In 1996, however, Congress enacted a new definition of the

term “conviction” for immigration purposes:

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 punish-

ment, penalty, or restraint on the alien’s liberty to be

imposed.

8 U.S.C. § 1101(a)(48)(A). Before any of our sister circuits

had interpreted the effect of this new definition with respect

6062 NUNEZ-REYES v. HOLDER

to state-court expungements of drug possession convictions,

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

2000). We framed the question as whether the new definition

impliedly repealed the FFOA, and we held that it had not. Id.

at 743-49. Because there had been no implied repeal, we held

that we remained bound by Garberding’s holding that, “as a

matter of constitutional equal protection, . . . the benefits of

the Act [must] be extended to aliens whose offenses are

expunged under state rehabilitative laws, provided that they

would have been eligible for relief under the Act had their

offenses been prosecuted as federal crimes.” Lujan-

Armendariz, 222 F.3d at 749. In a footnote, we rejected the

government’s argument that there was a rational basis for

treating aliens subject to an expunged state conviction differ-

ently than aliens subject to an expunged federal conviction.

See id. at 743 n.24 (“Most important, INS counsel offered no

reason, and we cannot conceive of any, why Congress would

have wanted aliens found guilty of federal drug crimes to be

treated more leniently than aliens found guilty of state drug

crimes.”).

Since then, not only has the BIA rejected our analysis, but

so has every sister circuit—seven in total—to have addressed

the issue. In re Salazar-Regino, 23 I. & N. Dec. 223, 235

(B.I.A. 2002) (en banc); 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. Attorney 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:

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

NUNEZ-REYES v. HOLDER 6063

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.

It is easy to understand why the BIA and our sister circuits

have disagreed with our view. The issue is whether there is

any rational basis to distinguish between aliens subject to a

state expungement and aliens subject to a federal expunge-

ment. A very relaxed form of rational basis review applies to

this inquiry: “[F]ederal classifications based on alienage are

subject to relaxed scrutiny. Federal classifications distinguish-

ing among groups of aliens thus are valid unless wholly irra-

tional.” 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 therefore entitled to an addi-

tional measure of deference when it legislates as to admission,

exclusion, removal, naturalization or other matters pertaining

to aliens.”), petition for cert. filed, 78 U.S.L.W. 3322 (U.S.

Nov. 16, 2009) (No. 09-600).

Our sister circuits have held that this relaxed standard eas-

ily is met here. The Third Circuit 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-

6064 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.

I would offer another rational basis. Not all states permit

expungement. A person convicted in such a state would be

ineligible for relief under the immigration laws, whereas a

person convicted in a different state would be eligible. Con-

gress reasonably could have concluded that, in the strong

interest of uniformity, it would not recognize any state

expungements rather than adopt a piecemeal approach.

When we decided Lujan-Armendariz, we did not have the

benefit of our sister circuits’ contrary opinions or the BIA’s

contrary opinion. See Chen v. Mukasey, 524 F.3d 1028, 1033

(9th Cir. 2008) (“National uniformity in the immigration con-

text also counsels deference where, as here, a failure to defer

would cause a split of authority among the circuits.”). Impor-

tantly, in my view, we also did not have the benefit of the

BIA’s decision to deny recognition of state expungements

under all state expungement statutes. Our holding in

Garberding—that it is irrational to recognize some states’

expungements but not others’—is inapposite in light of the

BIA’s current interpretation.

In summary, were we writing on a blank slate, or were we

to reconsider our rule en banc, I would join our sister circuits’

unanimous recognition that Congress reasonably distin-

guished between aliens subject to a state expungement and

aliens subject to a federal expungement.