Cardenas-Uriarte v. INS

Decision Date20 September 2000
Docket NumberP,CARDENAS-URIART,No. 97-70692,97-70692
Citation227 F.3d 1132
Parties(9th Cir. 2000) JESUS RAMONetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
CourtU.S. Court of Appeals — Ninth Circuit

Michael Franquinha (argued) and Wendy S. LeStarge, Stender & Larkin, Phoenix, Arizona, for the petitioner.

Anthony W. Norwood, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of a Decision of the Board of Immigration Appeals. INS No. A91-431-753

Before: Betty B. Fletcher, Michael Daly Hawkins, and Sidney R. Thomas, Circuit Judges.

HAWKINS, Circuit Judge:

Jesus Ramon Cardenas-Uriarte ("Cardenas") petitions for review of the Board of Immigration Appeals' ("BIA's") determination that he is deportable under section 212(a)(2)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1182(a)(2)(B), and ineligible for a waiver of deportation under section 212(c) of the INA, 8 U.S.C. 1182(c) (repealed in 1996), by virtue of recent amendments to the immigration laws. The government counters that we lack jurisdiction under section 309(c)(4)(G) of the Illegal Immigrant Reform and Immigration Responsibility Act ("IIRIRA"), Pub. L. No. 104208, 110 Stat. 3009 (Sept. 30, 1996), as amended , Pub. L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996).

BACKGROUND

Cardenas entered the United States from Mexico without inspection in 1985. In 1990, he was made a permanent lawful resident through the Special Agricultural Workers Program. On June 4, 1991, he pled no contest to a charge of possession of drug paraphernalia under Arizona law.

On February 19, 1992, the INS issued an order to show cause, charging Cardenas with deportability under section 241(a)(2)(B)(i) of the INA, 8 U.S.C. 1251(a)(2)(B)(i) (now codified at 8 U.S.C. 1227(a)(2)(B)(i)), for having committed a crime relating to a controlled substance. On December 12, 1992, the Immigration Judge ("IJ") found him deportable.

Cardenas timely appealed the IJ's decision. On January 3, 1996, while his appeal was pending, Cardenas filed a motion to reconsider and remand to the BIA because his conviction had been expunged and he had been in the United States long enough to qualify for a waiver of deportation under section 212(c) of the INA. On May 15, 1997, the BIA denied his motion, finding that the IJ had correctly determined deportability, that his expungement did not qualify under Matter of Manrique, Int. Dec. 3250, 1995 WL 314732 (BIA1995), and that he was ineligible for relief under section 212(c) by virtue of section 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996).

Cardenas timely appealed the BIA's decision, arguing that he is eligible for relief under section 212(c) because section 440(d) of AEDPA violates equal protection and should not be applied retroactively. The government contends that IIRIRA 309(c)(4)(G) deprives us of jurisdiction to hear his appeal.

IIRIRA 309(c)(4)(G) would deprive us of jurisdiction to review, on direct appeal, Cardenas's challenge to the BIA's application of section 440(d) if Cardenas committed a deportable offense described in section 309(c)(4)(G).1 See Magana Pizano v. INS, 200 F.3d 603, 613-14 (9th Cir. 1999) (holding that IIRIRA does not deprive us of jurisdiction over an alien's habeas petition even if section 309(c)(4)(G) deprives us of jurisdiction on direct review). We retain jurisdiction, however, to determine whether Cardenas has committed a deportable offense described in section 309(c)(4)(G). See AragonAyon v. INS, 206 F.3d 847, 849 (9th Cir. 2000); Coronado-Durazo v. INS, 123 F.3d 1322, 1323 (9th Cir. 1997).

DISCUSSION

IIRIRA 309(c)(4)(G) provides in pertinent part that "there shall be no appeal permitted in the case of an alien who is . . . deportable by reason of having committed an offense covered in . . . section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act . . . ." Section 241(a)(2)(B)(i) refers to aliens convicted of a "violation of (or a conspiracy or attempt to violate) any law or regulation . . . relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana." 8 U.S.C. 1227(a)(2)(B)(i).

Cardenas argues that we have jurisdiction over the merits of his appeal because his conviction under Arizona law for possession of drug paraphernalia was not for a crime "relating to a controlled substance." His argument is foreclosed, however, by our recent decision in Luu-Le v. INS , 224 F.3d 911, 916 (9th Cir. 2000), where we held that a conviction for possession of drug paraphernalia under Ariz. Rev. Stat. 13-3415.A is a crime relating to a controlled substance within the meaning of section 241(a)(2)(B)(i) of the INA, 8 U.S.C. 1227(a)(2)(B)(i).2 Nevertheless we conclude that Cardenas may not have committed a deportable offense because his underlying conviction may have been expunged under Matter of Manrique, 1995 WL 314732.3 Accordingly, we remand to the BIA for a determination of whether Cardenas's expungement qualifies under Manrique.

In Matter of Manrique, 1995 WL 314732, the BIA held that an alien is not deportable if he can establish that he would have been eligible for first offender treatment under federal law, 18 U.S.C. 3607(a) (1988).4 If Cardenas would have been eligible for first offender treatment under federal law, he would not stand "convicted" for purposes of the immigration laws. Therefore, his appeal would not fall within section 309(c)(4)(G)'s bar to our jurisdiction and he would not be deportable as charged in the order to show cause.

To qualify for first offender treatment under federal law, a person must show that (1) he has been found guilty of simple possession of a controlled substance, an offense described in section 21 U.S.C. 844; (2) he has not, prior to the commission of such offense, been convicted of violating a federal or state law relating to controlled substances; (3) he has not previously been accorded first offender treatment under any law; and (4) the court has entered an order pursuant to a state rehabilitative statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation. Manrique, 1995 WL 314732.

In his motion to reconsider and remand to the BIA, Cardenas claimed that he is a first time offender, he pled guilty to simple possession, he had never been accorded first offender treatment under any law, and the proceedings against him were dismissed. The BIA found Cardenas ineligible for relief because he did not show that "criminal proceedings have been deferred pending successful completion of probation." The record, however, shows that the criminal proceeding against Cardenas was deferred and that the proceeding was in fact eventually dismissed. Therefore, Cardenas's expungement meets the fourth prong of the Manrique test, and the BIA erred in concluding otherwise. In addition, the second prong is also clearly satisfied because, as Cardenas's pre-sentence report makes clear, he has no prior criminal record. It is less clear, however, whether Cardenas can prove the remaining two elements under Manrique.

1. Simple Possession of a Controlled Substance

While Cardenas correctly notes that he pled guilty to "simple possession," his guilty plea was for possession of drug paraphernalia, not simple possession of a controlled substance. The Federal First Offender Act requires a plea or conviction of possession of a controlled substance, as described in 21 U.S.C. 844. See United States v. Barial, 31 F.3d 216, 216 (4th Cir. 1994) (first offender treatment under section 3607 is available to those found guilty of an offense described in section 844 even if the conviction is not under section 844). Section 844 provides that it is "unlawful to possess a controlled substance." A controlled substance is defined as "a drug or other substance, or immediate precursor, included in [section 812]." 21 U.S.C. 802. Drug paraphernalia is not included in section 812.

The plain language of the statute suggests that possession of drug paraphernalia should not be included as an offense described in section 844. "[U]nder the established approach to statutory interpretation, we rely on plain language in the first instance, but always look to legislative history in order to determine whether there is a clear indication of contrary intent." Coronado-Durazo, 123 F.3d at 1325 (quoting Flores-Arellano v. INS, 5 F.3d 360, 363 (9th Cir. 1993) (Reinhardt, J. specially concurring)); see INS v. Cardoza-Fonseca, 480 U.S. 421, 433 n. 12 (1987). We adhere to plain meaning "unless that meaning would lead to absurd results." Reno v. National Transp. Safety Bd., 45 F.3d 1375, 1379 (9th Cir. 1995) (citing Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)). Under these circumstances, concluding that possession of drug paraphernalia is not included in the First Offender Act would frustrate congressional intent and lead to an absurd result.

Cardenas was originally charged with two counts of possession of drugs; one count for a "white powdery substance" and the other for marijuana. He pled guilty to the lesser offense of possession of drug paraphernalia. We can be sure that possession of drug paraphernalia 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. See Ariz. Rev. Stat. 13-3415 (drug paraphernalia is an undesignated offense); Ariz. Rev. Stat.SS 13-3405, 13-3408. It would be an absurd result if we refused to allow Cardenas's plea to possession of drug paraphernalia to qualify under the First Offender Act because if Cardenas had...

To continue reading

Request your trial
17 cases
  • Ramirez-Altamirano v. Holder
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 4 Febrero 2009
    ...paraphernalia, while the FFOA applies to offenders charged only with possession of drugs. We rejected the identical argument in Cardenas-Uriarte, 227 F.3d at 1137. Because there is no rational basis for treating individuals found guilty of possessing drug paraphernalia more harshly than tho......
  • Nunez–reyes v. Holder
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 Julio 2011
    ...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).3B. We will apply our decision prospectively only. Having decided to overrule Lujan–Armendariz, we next consider whether to a......
  • Ramirez-Altamirano v. Mukasey
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 4 Febrero 2009
    ...paraphernalia, while the FFOA applies to offenders charged only with possession of drugs. We rejected the identical argument in Cardenas-Uriarte, 227 F.3d at 1137. Because there is no rational basis for treating individuals found guilty of possessing drug paraphernalia more harshly than tho......
  • Najjar v. Ashcroft, Nos. 99-14391
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 18 Julio 2001
    ...evidence" pertains to non-record evidence that is introduced in the first instance before a reviewing court. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1138 (9th Cir. 2000) ("Section 2347 concerns a party's appeal to [this] court [asking permission] to adduce additional evidence, for examp......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT