Chavez-Perez v. Ashcroft, 02-72422.

• Citation: 386 F.3d 1284
• Decision Date: 27 October 2004
• Docket Number: No. 02-72422.,02-72422.
• Parties: Daniel Humberto CHAVEZ-PEREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1284

386 F.3d 1284

Daniel Humberto CHAVEZ-PEREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-72422.

United States Court of Appeals, Ninth Circuit.

Submitted July 15, 2004^*.

Filed October 27, 2004.

James Todd Bennett, El Cerrito, CA, for the petitioner.

Carolyn M. Piccotti, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY,^** W. FLETCHER, and TALLMAN, Circuit Judges.

Opinion by Judge Tallman; Dissent by Judge William A. Fletcher

TALLMAN, Circuit Judge.

The petitioner is an alien who was convicted in Oregon of first-time simple drug possession. Though this conviction might be expunged from his record sometime in the future pursuant to Oregon's rehabilitative statute, he has not yet qualified for this relief, and so the Immigration and Naturalization Service (INS)¹ ordered him removed as an alien convicted of a felony controlled substance offense. We must decide whether this removal order violates Chavez-Perez's rights under the Equal Protection Clause. Because at the time his deportation order was upheld Chavez-Perez had suffered a judgment of conviction for a drug offense, we conclude that the INS has a rational basis for treating him differently from those aliens whose convictions have previously been expunged, or whose charges were deferred and later dismissed. We uphold the decision of the Board of Immigration Appeals (BIA) and dismiss the petition for review.

I

Daniel Chavez-Perez is a native and citizen of Mexico who entered the United States in 1991 as a lawful permanent resident. On July 18, 2001, at age nineteen, he was convicted of possession of methamphetamine and sentenced to 20 days in jail, 36 months of probation, and various monetary penalties. Less than a month later, the INS served him with a Notice to Appear and charged him with removability as an alien convicted of a controlled substance crime. See 8 U.S.C. § 1227(a)(2)(B)(i). Chavez-Perez applied for cancellation of removal, arguing before the Immigration Judge (IJ) that his conviction fell within the ambit of Or.Rev.Stat. § 137.225(1)(a), an Oregon rehabilitative statute that allows for possible expungement of the conviction from his record sometime in the future.² Relying on our decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), Chavez-Perez argued that his conviction was the functional equivalent of those federal convictions that qualify for expungement under the Federal First Offender Act (FFOA), 18 U.S.C. § 3607. He asserted that the Equal Protection Clause forbids his removal based on a comparable state conviction that was subject to future expungement at the time of the INS's order, and claimed that he did not stand "convicted" of a drug offense for purposes of immigration law. The IJ disagreed, found Chavez-Perez removable as charged, denied his application for cancellation of removal, and ordered him removed from the United States.

In an unpublished, non-precedential opinion, a divided BIA affirmed. A majority of the Board members concluded that "unless and until [Chavez-Perez's] conviction is eventually dismissed pursuant to [Oregon's expungement statute, he] stands `convicted' under the immigration laws and is removable based on that conviction." Dissenting, Board Member Espenoza would have held that the relevant rule for determining FFOA treatment "does not have a temporal limitation" and that the possible future expungement of Chavez-Perez's conviction should preclude his removal. Chavez-Perez filed a timely petition for review of the BIA's decision.

II

Section 1252(a)(2)(C) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), see Pub.L. No. 104-208, § 306(a), 110 Stat. 3009 (Sept. 30, 1996), significantly limits appellate review of orders of removal. The section states:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in ... 8 U.S.C. [§ 1227(a)(2)(B) (controlled substance offenses)]....

8 U.S.C. § 1252(a)(2)(C). Section 1227(a)(2)(B)(i) provides that an alien convicted of a violation of any state or federal law relating to a controlled substance (except possession of small amounts of marijuana for personal use) may be removed. 8 U.S.C. § 1227(a)(2)(B)(i).

However, we retain "jurisdiction to determine whether jurisdiction exists," Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000); that is, we must determine whether Chavez-Perez is (1) an alien (2) who is removable (3) by reason of having committed a controlled substance or other specified offense. See Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000). There is no dispute that Chavez-Perez is an alien or that he committed a controlled substance offense under Oregon law for which he stands convicted. The only question we must decide is whether he is "removable" on the basis of that conviction, and thus our assessment of our jurisdiction "collapses into the merits." See Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). This is a question of law that we review de novo. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir.1997). Chavez-Perez's argument is based on an application of the Equal Protection Clause, which is also subject to de novo review. See Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003).

III

The INS may remove any alien who, at any time after admission to this country, is convicted of a state or federal controlled substance violation. 8 U.S.C. § 1227(a)(2)(B)(i). Chavez-Perez claims to fall within an exception to that rule, and thus we first sketch a brief history of how that exception has changed over the years, how it interacts with various state expungement statutes, and how it is currently applied in the Ninth Circuit.

Pursuant to a 1959 decision by the Attorney General, aliens could not avoid deportation simply because a state conviction had been expunged. See Matter of A— F—, 8 I. & N. Dec. 429, 445-46 (1959). This rule changed in 1970 when Congress passed the FFOA, a federal rehabilitative statute. Offenders qualify for relief under the FFOA if they meet three criteria: they must be found guilty of possession of a controlled substance, they must not have previously benefitted from the FFOA, and it must be their first violation of state or federal drug laws. 18 U.S.C. §§ 3607(a)(1) and (2).³ If an offender qualifies, relief consists of one year of probation during which time the charge is deferred. If the offender does not violate any conditions of probation during that year, the sentencing court dismisses the proceedings and discharges the offender from probation without entering a judgment of conviction. Id. § 3607(a). The FFOA was designed to permit courts to sentence defendants "in a manner that prevents [them] from suffering any disability imposed by law on account of the finding of guilt. Under the Act, the finding of guilt is expunged and no legal consequences may be imposed as a result of the defendant's having committed the offense." Lujan-Armendariz, 222 F.3d at 735 (emphasis in original). The FFOA thus operates as a type of "deferred adjudication" law, in which a finding of guilt is made and later erased, but no formal judgment of conviction is ever entered. Id. at 735 n. 11. Many states have also enacted rehabilitative statutes, and some operate in a similar fashion as the FFOA.

Oregon's expungement statute is an example of a different type, known as a "set-aside" or "vacatur" law. See id. Under Oregon's statute, when a defendant is found or pleads guilty the court enters a formal judgment of conviction. At any time after three years from the date of that criminal judgment, a defendant who has fully complied with and performed his sentence may apply to the court for an order setting aside the conviction. Or. Rev.Stat. § 137.225(1)(a).⁴

After the FFOA was enacted, the BIA held that a drug offense that had been expunged under the FFOA—or a state law "counterpart" to the FFOA—was not a conviction for immigration purposes and could not serve as a basis for deportation. Matter of Werk, 16 I. & N. Dec. 234, 236 (BIA 1977). The BIA defined a state law "counterpart" of the federal act to be a state rehabilitative statute that was not broader in scope than the FFOA. See Matter of Deris, 20 I. & N. Dec. 5, 10 (BIA 1989).

We rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.1994). Garberding involved Montana's expungement statute, which was not limited to first-time simple drug possession offenses but allowed expungement of a broad range of more serious offenses. Id. at 1189. Considering Garberding's challenge on Equal Protection grounds, we concluded that the INS had no rational basis for treating her differently simply because Montana's statute covered a broader range of offenses than did the FFOA, id. at 1190-91, and held that "persons who received the benefit of a state expungement law were not subject to deportation as long as they could have received the benefit of the federal Act if they had been prosecuted under federal law." Lujan-Armendariz, 222 F.3d at 738 (emphasis in original); see also Paredes-Urrestarazu v. INS, 36 F.3d 801, 811-12 (9th Cir.1994) (establishing the corollary rule that persons found guilty under state law who would not have qualified under the FFOA were not entitled to receive favorable immigration treatment, even if they did qualify for expungement under state law).

The BIA subsequently adopted Garberding and Paredes-Urrestarazu in In re Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995), and set forth four criteria aliens had to meet to demonstrate that they could have been eligible for relief under the FFOA:

1. The alien is a first...