706 F.3d 1072 (9th Cir. 2013), 08-71950, Lopez-Vasquez v. Holder

Docket Nº:08-71950, 08-74867.
Citation:706 F.3d 1072
Opinion Judge:IKUTA, Circuit Judge:
Party Name:Jose LOPEZ-VASQUEZ, Petitioner, v. Eric H. HOLDER, Jr.,[*] Attorney General, Respondent.
Attorney:Audra R. Behn
Judge Panel:Before: MYRON H. BRIGHT,[**]SUSAN P. GRABER, and SANDRA S. IKUTA, Circuit Judges. Opinion by Judge IKUTA; Concurrence by Judge BRIGHT. BRIGHT, Circuit Judge, concurring:
Case Date:February 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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706 F.3d 1072 (9th Cir. 2013)

Jose LOPEZ-VASQUEZ, Petitioner,


Eric H. HOLDER, Jr., [*] Attorney General, Respondent.

Nos. 08-71950, 08-74867.

United States Court of Appeals, Ninth Circuit.

February 1, 2013

Argued and Submitted Nov. 8, 2012.

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

On Petitions for Review of an Order of the Board of Immigration Appeals. Agency No. A076-625-020.

Before: MYRON H. BRIGHT,[**]SUSAN P. GRABER, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge IKUTA; Concurrence by Judge BRIGHT.


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

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Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir.2011) (en banc). We deny both petitions.


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.


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 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.


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 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

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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.


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) (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, 77...

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