Jose Lopez-Vasquez v. Eric H. Holder Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LOPEZ-VASQUEZ, Nos. 08-71950

Petitioner, 08-74867

v. Agency No.

A076-625-020

ERIC H. HOLDER, JR.,*

Attorney General,

Respondent. OPINION

On Petitions for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 8, 2012—Pasadena, California

Filed February 1, 2013

Before: Myron H. Bright,** Susan P. Graber, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Judge Bright

*

Eric H. Holder, Jr., is substituted for his predecessor Michael B.

Mukasey, as Attorney General. Fed. R.App. P. 43(c)(2).

**

The Honorable M yron H. Bright, Senior Circuit Judge for the U.S.

Court of Appeals for the Eighth Circuit, sitting by designation.

2 LOPEZ-VASQUEZ V . HOLDER

SUMMARY***

Immigration

The panel denied Jose Lopez-Vasquez’s petition for

review of the Board of Immigration Appeals’ decision

denying adjustment of status on account of his felony

conviction for possession of marijuana for sale, in violation

of California Health & Safety Code § 11359.

The panel held that Lopez-Vasquez failed to carry his

burden to prove that he was entitled to relief under the

Federal First Offender Act, despite the fact that the state court

set aside his felony conviction and deemed it to be a

misdemeanor. The panel held that the record was

inconclusive as to whether the state court actually changed

Lopez-Vasquez’s CHS § 11359 conviction to misdemeanor

simple possession of marijuana, in violation of CHS § 11357,

because CHS § 11359 is a “straight felony” that cannot be

designated as a misdemeanor, and the records do not reflect

a change to CHS § 11357. The panel also denied Lopez-

Vasquez’s petition for review from the BIA’s denial of his

motion to reopen.

Concurring, Judge Bright would instruct the BIA to

permit reopening. Judge Bright agreed that the record is

unclear and that Lopez-Vasquez must do more than prove

that the record is inconclusive, but he would give Lopez-

Vasquez another chance to establish that the state court

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LOPEZ-VASQUEZ V . HOLDER 3

changed his offense of conviction to simple possession in

violation of CHS § 11357.

COUNSEL

Audra R. Behné, Law Offices of Audra. R. Behné, Encino,

California, for the Petitioner.

Brianne Whelan Cohen and Joseph A. O’Connell (argued),

U.S. Department of Justice, Office of Immigration Litigation,

Washington, D.C., for Respondent.

OPINION

IKUTA, Circuit Judge:

Jose Lopez-Vasquez petitions for review of the Board of

Immigration Appeals’ (BIA) denial of his application for

adjustment of status and its denial of his motion to reopen

based on new evidence. The BIA concluded that Lopez-

Vasquez was ineligible for adjustment of status because of a

1997 conviction for possession of marijuana for sale in

violation of California Health & Safety Code section 11359.

Lopez-Vasquez contends that the 1997 conviction was

actually for simple possession of marijuana in violation of

Health & Safety Code section 11357 and that, as a result, he

is eligible for relief under Lujan-Armendariz v. INS, 222 F.3d

728, 749 (9th Cir. 2000), overruled prospectively by Nunez-

Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc).

We deny both petitions.

4 LOPEZ-VASQUEZ V . HOLDER

I

In order to understand Lopez-Vasquez’s arguments, it is

first necessary to understand the interplay between the

applicable statutory framework and our case law.

A

The Attorney General may adjust the status of an alien if

“the alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence.”

8 U.S.C. § 1255(i)(2)(A). The alien has the “‘burden of

establishing . . . clearly and beyond doubt’ that he is ‘entitled

to be admitted and is not inadmissible under [8 U.S.C. §]

1182.’” Valadez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th

Cir. 2010) (quoting 8 U.S.C. § 1229a(c)(2)(A)); see also

Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008).1

Under § 1182, an alien who has been convicted of an

offense “relating to a controlled substance” is inadmissible.

8 U.S.C. § 1182(a)(2)(i)(II). Because the burden of proving

1

An alien may be charged with being removable if that alien has not

been admitted to the United States and is “inadmissible.” See 8 U.S.C.

§ 1229a(e)(2)(A). An alien charged as being removable for this reason

may contest that charge by proving admissibility “clearly and beyond

doubt.” § 1229a(c)(2)(A). By contrast, aliens who are seeking relief from

removal by applying for adjustment of status must prove admissibility “by

a preponderance of the evidence.” See 8 C.F.R. § 1240.8(d). Because

Lopez-Vasquez is seeking relief from removal, the relevant standard

should be the preponderance standard set forth in § 1240.8(d). But,

because Valadez-Munoz and Blanco held that the “clearly and beyond

doubt” burden of proof is applicable in this context, we are bound to apply

this precedent.

LOPEZ-VASQUEZ V . HOLDER 5

admissibility is on the alien, Valadez-Munoz, 623 F.3d at

1308, an alien with a criminal conviction must prove that the

conviction does not relate to a controlled substance or

otherwise render the alien inadmissible under § 1182. Cf.

Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012) (en banc).

An alien cannot carry this burden “by merely establishing that

the relevant record of conviction is inconclusive as to

whether” the conviction was for an offense that would make

the alien inadmissible. Id. at 979–80.

B

An alien’s inadmissibility under § 1182 due to a drug-

related conviction is generally not affected by the later

expungement of the conviction. Murillo-Espinoza v. INS,

261 F.3d 771, 774 (9th Cir. 2001); see 8 U.S.C.

§ 1101(a)(48)(A). The Federal First Offender Act (FFOA)

created a limited exception to this rule for federal defendants.

See 18 U.S.C. § 3607. Under the FFOA, a federal court can

put first-time drug offenders who are convicted of simple

possession under 21 U.S.C. § 844 on pre-judgment probation.

§ 3607(a). If the defendants successfully complete probation,

the court must discharge them “without entering a judgment

of conviction.” Id. An FFOA disposition “shall not be

considered a conviction for the purpose of a disqualification

or a disability imposed by law upon conviction of a crime, or

for any other purpose,” § 3607(b), including immigration

proceedings. See Nunez-Reyes, 646 F.3d at 688.

In Lujan-Armendariz, we extended the immigration

benefits of the FFOA to individuals with expunged state court

convictions for first-time simple possession drug offenses

where the offenders “would have been eligible for relief

under the [FFOA] had their offenses been prosecuted as

6 LOPEZ-VASQUEZ V . HOLDER

federal crimes.” Lujan-Armendariz, 222 F.3d at 749. We

later extended Lujan-Armendariz to cover expunged state

court convictions where the drug offense was “a less serious

offense than simple possession of a controlled substance,”

such as a conviction for possession of drug paraphernalia.

Ramirez-Altamirano v. Holder, 563 F.3d 800, 808 (9th Cir.

2009) (internal quotation marks omitted), overruled

prospectively by Nunez-Reyes, 646 F.3d at 694.

Recently, Nunez-Reyes overruled Lujan-Armendariz and

Ramirez-Altamirano and held that the FFOA applies to only

federal convictions. Nunez-Reyes, 646 F.3d at 690. But

Nunez-Reyes applies only prospectively, so we must still

evaluate convictions entered by a state court before July 14,

2011, under Lujan-Armendariz’s framework. Id. at 693–94.

C

Lopez-Vasquez’s claim that he is eligible for adjustment

of status hinges on the differences between California Health

& Safety Code sections 11357 and 11359.

Section 11357 criminalizes the possession of marijuana

or concentrated cannabis as well as the possession of

marijuana “upon the grounds of, or within, any school.” Cal.

Health & Safety Code § 11357 (West 1997). At the time of

Lopez-Vasquez’s conviction, a violation of section 11357

was punishable by imprisonment in a state prison,

imprisonment in county jail, or a fine, depending on the

specific circumstances of the violation. Id. Under California

law, a statute that can result in this range of punishments is

referred to as a “wobbler” statute because it provides for

either a misdemeanor or a felony conviction. See

Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 (9th Cir. 2003)

LOPEZ-VASQUEZ V . HOLDER 7

(citing Cal. Penal Code § 17(b)). “Whether a ‘wobbler’ is

determined to be a misdemeanor or a felony is controlled by

Cal. Penal Code § 17(b) . . . .” Garcia-Lopez, 334 F.3d at

844. As relevant to this case, “[a] wobbler offense ‘is a

misdemeanor for all purposes . . . [w]hen the court grants

probation to a defendant without imposition of sentence and

at the time of granting probation, or on application . . .

thereafter, the court declares the offense to be a

misdemeanor.’” Id. at 845 (alterations in original) (quoting

Cal. Penal Code § 17(b)(3)).

Lopez-Vasquez asserts that a section 11357 conviction is

a “simple possession” drug conviction and that he would have

been eligible for relief under the FFOA had it been

prosecuted as a federal crime. We have not previously

addressed this question, and we need not reach it today in

light of our conclusion, see infra Part III, that the BIA did not

err in concluding that Lopez-Vasquez was not convicted of

this offense.

Section 11359 criminalizes the possession of marijuana

for sale. Cal. Health & Safety Code § 11359 (West 1997)

(“Every person who possesses for sale any marijuana . . .

shall be punished by imprisonment in the state prison.”).

Because section 11359 prescribes “imprisonment in the state

prison” as the only available punishment, it is a felony. Cal.

Penal Code. § 17(a). In addition, California Penal Code

section 17(b) does not apply and, as a result, a court may not

designate a section 11359 conviction as a misdemeanor.

People v. Mauch, 163 Cal. App. 4th 669, 674 (Ct. App. 2008)

(holding that a crime punishable only by imprisonment in the

state prison is a “straight felony” that cannot be designated as

a misdemeanor (internal quotation marks omitted)).

8 LOPEZ-VASQUEZ V . HOLDER

If Lopez-Vasquez’s drug conviction was for possession of

marijuana for sale in violation of section 11359, he would be

ineligible for relief under our pre-Nunez-Reyes framework

because, as he concedes, possession for sale is not a first-time

simple possession offense that would qualify for treatment

under the FFOA. Nor is it a less serious offense than simple

possession of a controlled substance, and so it would not be

treated as if it were an FFOA-eligible offense under our pre-

Nunez-Reyes case law. Cf. Ramirez-Altamirano, 563 F.3d at

808.

II

A

Mindful of this framework, we now turn to the facts of

this case. Lopez-Vasquez, a citizen of El Salvador, entered

the United States illegally in 1987. On May 29, 1997, Lopez-

Vasquez pleaded no contest to, and was convicted of,

possession of marijuana for sale in violation of Health &

Safety Code section 11359. The state court’s minute order

states: “COUNT 01: 11359 H&S FEL - POSS

MARIJUANA/HASH FOR SALE,” and “COUNT (01):

DISPOSITION: CONVICTED.” The state court suspended

the imposition of a sentence, placed Lopez-Vasquez on

probation and, as a condition of probation, required him to

serve 180 days in county jail.

Over a year later, on July 13, 1998, the court held a status

conference in Lopez-Vasquez’s case. At the status

conference, Lopez-Vasquez sought a change in his charge

“for immigration purposes.” The court did not rule on this

request and, instead, ordered the probation department “to

prepare a report pursuant to termination and dismissal of the

LOPEZ-VASQUEZ V . HOLDER 9

defendant’s probation.” Like the minute order for the

previous hearing, the minute order for the status conference

states: “COUNT 01: 11359 H&S FEL - POSS

MARIJUANA/HASH FOR SALE.”

In compliance with the court’s order, a probation officer

met with Lopez-Vasquez and prepared a report. The report

states that Lopez-Vasquez was convicted of “HS11359 POSS

MARIJUANA FOR SALE.” It concludes that Lopez-

Vasquez appeared to be “fully in compliance with the terms

and conditions of his probation” and states that “the court is

respectfully advised to grant him his heart’s desires as still

keeping him on probation will be harmful to his immigrant

status.”

Based on this favorable report, on August 10, 1998, the

court deemed Lopez-Vasquez’s conviction to be a

misdemeanor, terminated probation, and set aside the

conviction under section 1203.4 of the California Penal

Code.2 The state court’s records do not state that the court

changed the offense of conviction to simple possession of

marijuana. In fact, like the previous minute orders, the

minute order for the August 1998 hearing contains the

following notation: “COUNT 01: 11359 H&S FEL - POSS

MARIJUANA/HASH FOR SALE.” The probation

department’s records also reflect that Lopez-Vasquez’s

conviction was deemed a misdemeanor, that probation was

terminated, and that the conviction was set aside. Like the

state court’s minutes, the probation department’s records do

2

The minute order states: “PURSUANT TO SECTION 17 PENAL

CODE, OFFENSE IS DEEM ED TO BE A MISDEM EANOR.

PROBATION IS ORDERED TERMINATED . . . . PLEA OF GUILTY

OR CONVICTION IS SET ASIDE.”

10 LOPEZ-VASQUEZ V . HOLDER

not indicate that the court changed Lopez-Vasquez’s crime of

conviction to simple possession.

B

After the government initiated removal proceedings in

2004, Lopez-Vasquez conceded that he was removable but

applied for adjustment of status based on his marriage to a

United States citizen. The immigration judge (IJ) concluded

that Lopez-Vasquez was ineligible for adjustment of status

because of the 1997 drug conviction. In reaching this

conclusion, the IJ addressed Lopez-Vasquez’s argument that

his conviction was eligible for FFOA treatment under Lujan-

Armendariz. Lopez-Vasquez asserted that, when the state

court designated his conviction as a misdemeanor, it also

changed the underlying offense from possession of marijuana

for sale in violation of section 11359 to simple possession of

marijuana in violation of section 11357. Because only

section 11357, and not section 11359, can be charged as a

misdemeanor, Lopez-Vasquez reasoned that the court was

able to reduce his conviction to a misdemeanor only because

it also changed his offense to simple possession.

The IJ rejected this argument and determined that it was

not clear from the record why the state court reduced the

conviction from a felony to a misdemeanor. He reasoned that

either the state court erred in reducing Lopez-Vasquez’s

conviction to a misdemeanor under section 11359 or it erred

in specifying the section under which the reduction was

entered. In either case, the IJ concluded, he could not “go

behind the conviction.”

Lopez-Vasquez appealed to the BIA, which dismissed his

appeal in a reasoned opinion on April 18, 2008. The BIA

LOPEZ-VASQUEZ V . HOLDER 11

noted that the burden was on Lopez-Vasquez to establish

eligibility for relief. And it concluded that he had “not

submitted any court order, record, statement from the district

attorney prosecuting his case, or other direct evidence

establishing that he was actually convicted of simple

possession of marijuana.” The BIA declined to infer that the

state court had necessarily changed the conviction to simple

possession, “particularly given the intricacies of the

substantive state criminal laws and procedures at issue here.”

Subsequently, Lopez-Vasquez filed a motion to reopen in

order to present previously unavailable evidence in support of

his claim. Specifically, he submitted the transcript of the July

13, 1998, state court status conference, which states, in

relevant part:

The Court: Why is this on calendar?

[Defense counsel]: We are requesting this be

reduced to a misdemeanor. I

believe based on the charges

that that may be a factual

impossibility, but I have

spoken —

The Court: Legal, not factual.

[Defense counsel]: — to [the prosecutor] about it

and he’s indicating that he

would like a supplemental

report based on a letter and

various documentations, and

he may consider changing the

charge so that it can be

12 LOPEZ-VASQUEZ V . HOLDER

reduced to a misdemeanor for

immigration purposes. So I

would ask that the matter be

put over for a supplemental

report.

The court did not make any further statement in response

to the defense counsel’s request, but merely continued the

case to a later date and ordered the probation officer to submit

a supplemental report.

The BIA accepted that this transcript was not previously

available but denied the motion to reopen because it found

that Lopez-Vasquez had failed to demonstrate prima facie

eligibility for adjustment of status. The BIA noted that

“[t]here is no express finding or explicit indication

whatsoever in any of the material submitted [including the

new evidence] that the respondent was convicted of simple

possession of marijuana, as he contends.”

III

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

review the BIA’s determination that Lopez-Vasquez’s drug

conviction makes him ineligible for adjustment of status, see

Ramirez-Altamirano, 563 F.3d at 804, overruled on other

grounds by Nunez-Reyes, 646 F.3d at 690, and we have

jurisdiction under § 1252(a) to review the BIA’s denial of a

motion to reopen. Meza-Vallejos v. Holder, 669 F.3d 920,

923 (9th Cir. 2012).

We review questions of law de novo and factual findings

for substantial evidence. Brezilien v. Holder, 569 F.3d 403,

411 (9th Cir. 2009). Thus, “the administrative findings of

LOPEZ-VASQUEZ V . HOLDER 13

fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” § 1252(b)(4)(B).

We review the BIA’s denial of a motion to reopen for abuse

of discretion, and may grant relief only if the BIA acted

“arbitrarily, irrationally, or contrary to law.” Singh v. INS,

213 F.3d 1050, 1052 (9th Cir. 2000) (internal quotation marks

omitted); see also United States v. Hinkson, 585 F.3d 1247,

1262 (9th Cir. 2009) (en banc) (holding that, under our abuse

of discretion standard, we may grant relief only if the court

made a legal error, or its application of law to facts was

“illogical, implausible, or without support in inferences that

may be drawn from the record”).

A

To establish that he is eligible for adjustment of status,

Lopez-Vasquez must prove “clearly and beyond doubt” that

he does not have a drug conviction that renders him

inadmissible under § 1182. Cf. Young, 697 F.3d at 989

(“Because the burden of proof rests on the alien, the alien

must establish that he or she was not convicted of such a

crime.”). He can meet that burden only by establishing that

his 1997 conviction was for a first-time simple possession

drug crime, that the offense was expunged by the state court,

and that he would have been eligible for relief under the

FFOA had his offense been prosecuted as a federal crime.

See Lujan-Armendariz, 222 F.3d at 748–49.

Substantial evidence supports the BIA’s conclusion that

Lopez-Vasquez was convicted of possession of marijuana for

sale under section 11359, which does not qualify for relief

under Lujan-Armendariz. The state court’s minute orders all

show that Lopez-Vasquez was convicted of possession of

marijuana for sale in violation of Health & Safety Code

14 LOPEZ-VASQUEZ V . HOLDER

section 11359. The probation office’s records also reflect that

the 1997 conviction was for possession of marijuana for sale.

As he did before the BIA, Lopez-Vasquez again argues

that the state court necessarily changed his conviction to a

violation of section 11357, which he contends criminalizes

only simple possession, when it designated his conviction as

a misdemeanor. According to Lopez-Vasquez, because

section 11359 is a “straight felony,” the state court could not

have designated his conviction as a misdemeanor without also

changing his conviction to a violation of section 11357.

We disagree. Nothing in the state court’s records shows

that the court changed Lopez-Vasquez’s underlying

conviction to a violation of section 11357.3 In fact, there is

no reference whatsoever to section 11357 in any of the

records submitted by Lopez-Vasquez. Thus, to accept Lopez-

Vasquez’s position, we would have to speculate that the state

court had the authority to change the charges brought by the

prosecutor, changed Lopez-Vasquez’s conviction without

mentioning that fact and that, in the process of changing the

conviction, selected section 11357 as the new charge. We

decline to adopt this chain of speculations. A more likely

explanation of the inconsistency between the section 11359

conviction and the misdemeanor designation, is that the state

3

Nor does Lopez-Vasquez cite any support for the proposition that the

state court even had the authority to amend the charge to which he pleaded

guilty, at least not without the prosecutor’s consent. Cf. People v. Orin,

13 Cal. 3d 937, 942 (1975) (stating that the prosecutor’s consent is

necessary to secure “a plea to a lesser offense than that charged, either in

degree or kind” (citations omitted)); People v. Superior Court, 59 Cal.

App. 3d 270, 276 (Ct. App. 1976) (noting the “exclusive authority of the

executive with respect to charging of crimes and negotiating the

disposition of charges”).

LOPEZ-VASQUEZ V . HOLDER 15

court simply erred under state law in designating Lopez-

Vasquez’s conviction as a misdemeanor. Such errors by state

trial courts are not unknown. See, e.g., Mauch, 163 Cal. App.

4th at 674 (holding that the trial court erred in designating as

a misdemeanor a “straight felony” conviction for cultivating

marijuana in violation of Cal. Health & Safety Code § 11358

(internal quotation marks omitted)); People v. Superior

Court, 29 Cal. App. 4th 323, 328–30 (Ct. App. 1994)

(holding that the magistrate judge erred in reducing to a

misdemeanor a “straight felony” charge for false

imprisonment).

At best, Lopez-Vasquez could establish that the record is

inconclusive as to what the state court actually did. But

because Lopez-Vasquez has the burden to show admissibility,

a reasonable adjudicator would not be compelled to conclude

that the state court had changed his conviction to a violation

of section 11357. See Young, 697 F.3d at 989 (holding in the

cancellation of removal context that “an inconclusive record

. . . is insufficient to satisfy the alien’s burden of proof”).4

Indeed, we recently declined to make a similar inference

in United States v. Lee, — F.3d —, No. 10-10403, 2012 WL

6720593 (9th Cir. Dec. 28, 2012). In Lee, the district court

sentenced the defendant as a career offender based, in part, on

a state court conviction for selling or offering to sell cocaine

base. Lee, No. 10-10403, slip op. at 4, 9. Under California

law, a defendant convicted of this offense may not receive

probation unless the state court makes certain findings on the

4

W e would reach this conclusion even if Lopez-Vasquez were subject

to the lower “preponderance of the evidence” burden imposed by 8 C.F.R.

§ 1240.8(d) instead of the “clearly and beyond doubt” burden specified by

Valadez-Munoz and Blanco.

16 LOPEZ-VASQUEZ V . HOLDER

record. Id. at 10–11 (citing Cal. Health & Safety Code

§ 1203.073(a)). The defendant argued that, because the state

court did not make any such findings and because he received

probation, he could not have been convicted of selling or

offering to sell cocaine base. Id. at 11. We rejected this

argument, even though the burden of proof was on the

government, because the state court records documented only

that the defendant was convicted of selling or offering to sell

cocaine base. Id. at 11–12. As we explained, the state court’s

failure to comply with the statutory requirement of making

findings on the record “was more likely a procedural

oversight during sentencing rather than” proof that the

defendant had been convicted of a crime that was different

from what was documented in the court records. Id. at 12.

Similarly in this case, the state court’s decision to

characterize the conviction as a misdemeanor was more likely

due to an oversight or error on the state court’s part, rather

than proof that the state court changed Lopez-Vasquez’s

crime of conviction. Because Lopez-Vasquez has the burden

to show that he was not convicted under section 11359, any

such ambiguity in the state court’s decision merely makes the

record inconclusive and does not carry his burden of proof.

See Young, 697 F.3d at 989.

B

We also conclude that Lopez-Vasquez has waived his

challenge to the BIA’s denial of his motion to reopen by

failing to argue it in his brief. See Koerner v. Grigas, 328

F.3d 1039, 1048 (9th Cir. 2003) (holding that this court will

not ordinarily consider matters “that are not specifically and

distinctly argued in appellant’s opening brief” (internal

quotation marks omitted)). Beyond explaining that this court

has jurisdiction to review the BIA’s denial of a motion to

LOPEZ-VASQUEZ V . HOLDER 17

reopen and setting forth the new evidence provided to the

BIA, Lopez-Vasquez’s brief does not raise any arguments

directed to this issue.

Even if we were to reach the merits of his challenge, we

would conclude that the BIA did not abuse its discretion in

denying the motion to reopen. The BIA is entitled to deny a

motion to reopen where the applicant fails to demonstrate

prima facie eligibility for the underlying relief. Garcia v.

Holder, 621 F.3d 906, 912 (9th Cir. 2010). To demonstrate

prima facie eligibility the alien must show “a reasonable

likelihood that the statutory requirements for relief have been

satisfied.” Id. (internal quotation marks omitted). In this

case, Lopez-Vasquez’s motion to reopen was based on the

allegedly newly-discovered transcript of the July 13, 1998,

state court status conference. This evidence does not

establish a reasonable likelihood that Lopez-Vasquez is

eligible for adjustment of status. Even reading the transcript

most favorably to Lopez-Vasquez, the transcript suggests

only that the state court was aware that reducing his

conviction under section 11359 to a misdemeanor was a legal

impossibility. But it does not demonstrate that the state court

actually changed the underlying offense.5

5

W e disagree with the concurrence’s suggestion that we should instruct

the BIA to reopen this case to allow Lopez-Vasquez “the opportunity to

attempt to produce” new evidence from California officials. Because the

BIA did not err in denying Lopez-Vasquez’s first motion to reopen, we

lack the authority to reverse its denial. Nor could we remand this case to

the BIA to permit Lopez-Vasquez to file a second motion to reopen.

Because “aliens are entitled to file only one motion to reopen,” Lopez

Vasquez “is now barred from filing a second motion to reopen.” Young

Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (citing 8 C.F.R.

§ 1003.2(c)(2)). Moreover, Lopez-Vasquez has not identified any

evidence that would meet an alien’s “heavy burden of proving that, if

18 LOPEZ-VASQUEZ V . HOLDER

IV

Lopez-Vasquez failed to establish that the state court

changed his 1997 drug conviction from possession of

marijuana for sale under section 11359 to simple possession

of marijuana under section 11357. Because Lopez-Vasquez

remains inadmissible under § 1182 notwithstanding the state

court’s expungement of his section 11359 offense, he is

ineligible for adjustment of status.

PETITION FOR REVIEW DENIED.

BRIGHT, Circuit Judge, concurring:

I agree that the record is unclear as to whether the state

court changed Lopez-Vasquez’s offense of conviction to a

violation of section 11357, a “wobbler” which could have

been deemed a misdemeanor. I also agree that Lopez-

Vasquez must do more than prove that the record is

inconclusive. But because the record is incomplete and

unclear, I believe that the proper outcome for this case is to

instruct the BIA to permit the reopening of the case before the

Immigration Judge. This would allow Lopez-Vasquez the

opportunity to attempt to produce evidence from California

officials showing that the state court changed Lopez-

Vasquez’s offense of conviction to simple possession of

marijuana under section 11357.

proceedings were reopened, the new evidence would likely change the

result in the case.” Id. (internal quotation marks omitted).

LOPEZ-VASQUEZ V . HOLDER 19

Lopez-Vasquez is not entitled to relief here because he

cannot satisfy the burden of proof; he can prove no more than

an inconclusive record. Yet it seems unfair to deny Lopez-

Vasquez the possibility of relief when there are some facts in

the record to support his position. For example, at the July

13, 1998 state court status conference, the court

acknowledged that simply reducing Lopez-Vasquez’s section

11359 conviction to a misdemeanor was a “legal

impossibility,” thereby indicating an awareness that a

conviction under section 11359 could not statutorily be

deemed a misdemeanor. But the court later appeared to do

exactly what it stated it could not—reduced the section 11359

conviction to a misdemeanor. Also, the transcript of the July

13, 1998 status conference indicates that the prosecutor was

considering changing Lopez-Vasquez’s offense of conviction.

This is notable because under California law, the state court

could have changed Lopez-Vasquez’s offense of conviction

to section 11357 with the consent of the prosecutor.

It is true that taking these facts to indicate that Lopez-

Vasquez’s offense of conviction was changed to section

11357 would require us to speculate that the state court took

action that is not disclosed in the record. But even the

majority’s “most likely explanation” for the state court’s

action requires some speculation—that the state court

knowingly erred by doing something it acknowledged on the

record it could not do.

I believe the state court was trying to help Lopez-Vasquez

with his immigration status by reducing his conviction to a

misdemeanor. The intentions of the state court warrant

consideration and perhaps those intentions could be the

subject of proof on a reopening of the record.

20 LOPEZ-VASQUEZ V . HOLDER

It is disappointing that none of the actors in this case took

steps to make the record clear. We should give Lopez-

Vasquez another chance to establish that the state court did in

fact change his offense of conviction to simple possession of

marijuana in violation of section 11357.