Dillingham v. Immigration & Naturalization Serv.

• Decision Date: 16 February 2001
• Docket Number: No. 97-71038,97-71038
• Citation: 267 F.3d 996
• Parties: (9th Cir. 2001) CHRISTOPHER JOHN DILLINGHAM, PETITIONER v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 996

267 F.3d 996 (9th Cir. 2001)

CHRISTOPHER JOHN DILLINGHAM, PETITIONER v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT

No. 97-71038

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 16, 2001--San Francisco, California

Filed September 14, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Counsel: Paul A. Davis, Los Angeles, California, for the petitioner.

Matthew R. Hall, Department of Justice, Washington, Dc, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals I&NS No. A28-992-806

Before: Betty B. Fletcher, Ferdinand F. Fernandez, and Richard A. Paez, Circuit Judges.

OPINION by B. Fletcher, Dissent by Judge Fernandez

In this case, we consider whether an alien's right to equal protection is violated if, in the course of removal proceedings, the Immigration and Naturalization Service ("INS") refuses to recognize the effects of a British expungement ¹ statute on a simple drug possession offense that would have qualified for federal first offender treatment had it occurred in the United States. The petitioner in this case, Christopher John Dillingham, is a 37 year-old native and citizen of Great Britain. He entered the United States in July 1992 and, after overstaying his visitor's visa, applied for adjustment of status to legal permanent resident in May 1993. The Board of Immigration Appeals ("BIA") ruled that Dillingham was ineligible for such adjustment because of a prior conviction in Great Britain for simple possession of marijuana and cocaine, in spite of the fact that the conviction had been expunged pursuant to a British rehabilitation statute for first-time offenders. We conclude that, in accordance with our holdings in Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994), Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994), and Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the BIA's decision violated Dillingham's right to equal protection by refusing to recognize the foreign expungement. Accordingly, we reverse the decision of the BIA and remand for a discretionary determination as to adjustment of Dillingham's status.

I.

Dillingham pled guilty in April 1984 to criminal charges in Great Britain for possessing marijuana and cocaine, paying a #E1#50 fine. As a first-time offender convicted of a minor controlled substance offense, Dillingham's conviction was later expunged pursuant to Great Britain's Rehabilitation of Offenders Act of 1974. Under the terms of the Act, a conviction is treated as "spent" if an offender complies with his sentence and is not convicted of a subsequent offense within five years. In such cases, the statute requires that the offender be treated "for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offense," except that any penalty resulting from the conviction that extends beyond the five-year period is unaffected, and evidence of the conviction may be introduced in a subsequent criminal proceeding. ²

In September 1991, seven years after his drug conviction (and two years after his rehabilitation), Dillingham married his U.S.-citizen wife. Although his conviction rendered him inadmissible ³ to the United States under INA §§ 212(a)(2)(A) (i)(II) (codified at 8 U.S.C. §§ 1182(a)(2)(A)(i)(II)),⁴ he was permitted to enter the country in July 1992 on a six-month nonimmigrant visitor visa, pursuant to the waiver provisions of 8 U.S.C. §§ 1182(d)(3)(A). After his authorized period of stay had expired, Dillingham applied for adjustment of status to legal permanent resident on May 13, 1993, pursuant to an immediate relative visa petition filed by his wife under 8 U.S.C. §§ 1255. The INS district director in Portland, Oregon, denied his application on September 14, 1993, on the grounds that the British Rehabilitation of Offenders Act was not a counterpart to the Federal First Offenders Act ("FFOA"), and that his prior drug conviction therefore rendered him inadmissible.

On November 16, 1993, the INS issued an Order to Show Cause, charging him with deportability as an alien who (1) had remained in the United States beyond the period of his authorized stay; and (2) was excludable at the time of his entry due to a prior controlled substance offense, pursuant to 8 U.S.C. §§ 1182(a). At his hearing before an Immigration Judge ("IJ") on October 25, 1994, Dillingham admitted the factual basis of the charges against him except for the fact of his conviction, and conceded his deportability for overstaying his visa. Following a continuance, Dillingham reasserted his eligibility for adjustment of status to that of a legal permanent resident, on the ground that his expunged conviction no longer precluded his application. This time, Dillingham cited the BIA's decision in Manrique, Int. Dec. 3250 (BIA 1995), in which the Board established a policy of treating aliens who had been convicted of simple possession and rehabilitated under any state's expungement statute equivalently to those who had been convicted and rehabilitated under the FFOA.⁵

On June 13, 1996, the IJ ruled that Manrique did not extend to foreign rehabilitation statutes and denied the application for adjustment of status. He also ordered Dillingham deported ⁶ and denied voluntary departure. The IJ found Dillingham to be "deserving of favorable discretion" and"undoubtedly a worthy candidate for permanent residence in this country." He also stated that he would have "no hesitation " in approving Dillingham's application for permanent residence and would do so "in a heartbeat," but for his conclusion that Dillingham was statutorily ineligible for discretionary relief. Hence, Dillingham's application for adjustment of status was not denied as a matter of discretion, but because of perceived statutory ineligibility.

On appeal, the BIA (sitting en banc) reversed the IJ's denial of Dillingham's application for voluntary departure, concluding that Dillingham had established that he had been a person of good moral character for the five years prior to his application.⁷ However, the Board affirmed the IJ's decision regarding adjustment of status and expressly limited its expungement recognition policy to cases "meeting the strict four-part test outlined" in Manrique. Specifically, the Board analogized the expungement of Dillingham's prior drug offense to a foreign pardon and declined to recognize it for U.S. immigration purposes. Accordingly, the Board dismissed Dillingham's appeal with respect to the denial of adjustment of his status. One BIA member dissented on the grounds that the Board's decision conflicted with its earlier cases and violated Dillingham's due process right to equal protection.

Dillingham now petitions for review of the BIA's decision in this court.

II.

As an initial matter, we must consider whether, as an appellate court, we have jurisdiction to review Dillingham's petition.

The INS initiated deportation proceedings on November 16, 1993, and the BIA entered a final order of deportation on August 20, 1997. Dillingham timely filed a petition for review in this court on September 15, 1997. Our jurisdiction is therefore governed by the so-called transitional rules of IIRIRA §§ 309(c)(4) (codified at 8 U.S.C. §§ 1252).

Notably, the transitional rules prohibit appeals from a "discretionary decision" of the Board, such as adjustment of status, pursuant to IIRIRA §§ 309(c)(4)(E). However, Dillingham's application for adjustment of status was not denied as a matter of discretion, but because of statutory ineligibility. Hence, Dillingham does not appeal the Board's discretionary denial of his application for adjustment of status, but rather the BIA's determination that he is statutorily ineligible to seek such discretionary relief.

Pursuant to the transitional rules, we are deprived of jurisdiction to review final orders of deportation for aliens convicted of certain controlled substance offenses. ⁸ However, as we held in Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir. 1999), we have jurisdiction to determine whether the facts relevant to our jurisdiction exist. See also Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000); Lujan-Armendariz v. INS, 222 F.3d at 734 (9th Cir. 2000). Thus, we have authority to review the central issue in this case -namely, whether Dillingham still stands convicted of "having committed a [controlled substance] offense" following the expungement of his 1984 simple possession offense in Great Britain.

In addition to contending that we lack jurisdiction due to Dillingham's expunged conviction, at the eleventh hour the Service raised the argument that we are divested of jurisdiction because Dillingham admitted the facts of his conviction to INS officers. Specifically, the Service contends that under INA §§ 212(a)(2)(A)(i) (codified at 8 U.S.C. §§ 1182(a)(2)(A)(i)),⁹ even apart from his conviction, an alien who admits having committed a controlled substance offense is rendered statutorily inadmissible and ineligible for adjustment of status.

We believe that under the terms of §§ 212(a)(2)(A)(i), however, the fact that Dillingham "admitted" his prior offense is of no greater consequence than the conviction itself. Tellingly, the language of IIRIRA §§ 309(c)(4)(G) is identical for aliens deemed inadmissible by the INS, as for those deemed deportable. Thus, the interpretation of INA §§ 212(a)(2)(A)(i) and IIRIRA §§ 309(c)(4)(G) pressed upon us by the Service would require overturning Lujan-Armendariz as well as every other case in which we have held under the transitional rules that aliens who plead guilty to first-time possession offenses may nonetheless avail themselves of domestic rehabilitation statutes to expunge their convictions. Put another way, pursuant to the INS's position, every time an alien pled guilty to a simple possession charge, whether in the U.S....