De Jesus Melendez v. Gonzales
| Citation | 503 F.3d 1019 |
| Decision Date | 19 September 2007 |
| Docket Number | No. 05-73581.,05-73581. |
| Parties | William DE JESUS MELENDEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Lamar Peckham, Santa Rosa, CA, for the petitioner.
Marshall Tamor Golding, United States Department of Justice, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-859-991.
Before: MARY M. SCHROEDER, Chief Circuit Judge, STEPHEN S. TROTT, Circuit Judge, and GARY A. FEESS,* District Judge.
This case presents the question whether an alien may avoid the immigration consequences of a drug conviction as a "first time offender" when, as the result of a previous arrest for drug possession, he was granted "pretrial diversion" under a state rehabilitation scheme that did not require him to plead guilty. We hold that he may not.
Petitioner William de Jesus Melendez appeals from a decision of the Board of Immigration Appeals ("BIA") denying his motion for adjustment of status and ordering him removed to El Salvador. Petitioner entered the United States without having been admitted or paroled, and was arrested and prosecuted for possession of a controlled substance by the State of California in 1996. The 1996 prosecution resulted in "pretrial diversion," and because Petitioner successfully completed a drug education, treatment, or rehabilitation program, the criminal charges were eventually dismissed without Petitioner entering a plea or being found guilty. In 1998, the government initiated removal proceedings, after which Petitioner married a United States citizen who in early 1999 petitioned for an immigrant relative visa (form I-130) on Petitioner's behalf. The I-130 was approved, but whatever advantage Petitioner might have gained as a result was undermined when he was arrested again and convicted in late 1999 of possession of a controlled substance.
Thereafter, an Immigration Judge ("IJ") denied petitioner's application for adjustment of status and ordered him removed to El Salvador because of his 1999 conviction. Petitioner appealed to the BIA, and during the pendency of that appeal, obtained an order from the state court expunging his conviction under California Penal Code section 1203.4. Despite the relief from the state court, the BIA dismissed the appeal and denied Petitioner's request for remand, reasoning that section 1203.4 expungements do not eliminate the conviction for immigration purposes. Petitioner appealed to this court, and also moved the BIA for reconsideration on the ground that the section 1203.4 expungement was the equivalent of a Federal First Offender Act ("FFOA") expungement and therefore precluded consideration of his conviction for immigration purposes. The BIA rejected the argument and denied the motion because the 1996 diversion constituted Petitioner's one opportunity to obtain the benefits conferred under the FFOA.
Although Petitioner has not appealed the denial of the motion for reconsideration, we hold that the rationale articulated in that denial was correct and would make any remand an exercise in futility: the BIA properly concluded the 1996 diversion barred Petitioner from further relief under the FFOA. Even though the diversion did not involve a guilty plea, the BIA need only have had a rational basis for treating Petitioner as other than a one-time offender. Because the fact of his 1996 arrest and consent to participate in diversion constitutes such a rational basis, the BIA properly concluded Petitioner was ineligible for further leniency for the 1999 conviction. The petition is therefore DISMISSED.
Petitioner is a 32-year old native and citizen of El Salvador who entered the United States in February 1992 without having been admitted or paroled, and is thus removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a). In December 1996, he was charged with violations of section 23152(a) of the California Vehicle Code for driving under the influence, and section 11350(a) of the California Health and Safety Code for possession of a controlled substance. Apparently as the result of a plea bargain, the Vehicle Code charge was eventually reduced to a violation of section 23103.5 for reckless driving related to alcohol; Petitioner pled no contest to the reduced charge and was sentenced. As to the controlled substance charge, on December 24, 1996, Petitioner was granted "diversion" pursuant to section 1000.2 of the California Penal Code, and the criminal proceedings were suspended. Although the record does not indicate precisely what the diversion entailed, section 1000.2 mandated that Petitioner participate in either a county-run or county-approved drug education, treatment, or rehabilitation program. In any event, Petitioner successfully completed the diversion program, and so the controlled substance charge was dismissed on September 5, 1997.
The government initiated removal proceedings in December 1998. Shortly thereafter, Petitioner married a United States citizen, who filed a petition for an immigrant relative visa (form I-130) on Petitioner's behalf on August 16, 1999.
Just months after the petition was filed, however, in October 1999, Petitioner again was charged with, among other things, possession of a controlled substance (cocaine or methamphetamine), this time pursuant to section 11377(a) of the California Health and Safety Code. On December 6, 1999, he was convicted.
Despite the conviction, Petitioner continued his efforts to remain in the United States. On May 7, 2001, the I-130 was approved. On the basis of that approval, on August 8, 2001, Petitioner applied for adjustment of status with the Immigration Court.
The government opposed the adjustment on the basis of Petitioner's criminal history. On January 29, 2004, it asked the Immigration Court to deny his petition because of the 1999 conviction. The next day, Petitioner moved for a continuance so that he could attempt to have the 1999 conviction expunged. The IJ denied the motion on the ground that no relief in the state court would change the immigration consequences of the conviction, which, the judge concluded, made him ineligible for adjustment, and thus ordered Petitioner removed to El Salvador. Petitioner timely appealed to the BIA.
Before the BIA addressed the appeal, however, Petitioner obtained relief from the state court: on July 16, 2004, the 1999 conviction was "expunged" pursuant to section 1203.4 of the California Penal Code. Therefore, on August 4, 2004, Petitioner asked the BIA to remand the matter to the IJ on the basis that the 1999 conviction was no longer considered a "conviction" for immigration purposes because it was a first-time, simple possession offense that had been expunged (and, implicitly, therefore qualified for treatment under the Federal First Offender Act).
The government opposed the motion to remand, arguing that Petitioner's pretrial diversion of the 1996 controlled substance charge "was the state-law equivalent of prejudgment probation under the FFOA," and thus that he would not have been eligible for FFOA treatment for his 1999 conviction, which would remain effective for immigration purposes.
The BIA sided with the government, and on May 18, 2005 denied the motion to remand because it concluded that the expungement did not present material new evidence that would have changed the result at the hearing below. The BIA's rationale was simply that "an alien whose conviction was expunged pursuant to California Penal Code § 1203.4 has been `convicted' for immigration purposes." The BIA also adopted the IJ's decision as to Petitioner's ineligibility for adjustment, and thus dismissed his appeal.
Petitioner filed this review petition on June 17, 2005, seeking to overturn the BIA's May 18, 2005 decision to deny a remand. At the same time, he did not abandon his efforts at the BIA itself, as on June 20, 2005, he moved for reconsideration of the remand denial. This motion was denied, however, as the BIA cited an alternate ground for the denial of remand: that the expungement was irrelevant because Petitioner had already received FFOA treatment in the form of his pre-plea diversion for the 1996 charge, and thus could not receive FFOA treatment a second time for the 1999 conviction. Petitioner has not separately appealed this decision, though the bulk of his briefing is devoted to attacking its rationale.
The Immigration and Nationality Act ("INA") ordinarily divests the courts of appeals of jurisdiction to review any "final order of removal" against an alien who is removable for having committed a controlled substance offense. 8 U.S.C. § 1252(a)(2)(C). The court retains jurisdiction, however, to consider whether the jurisdictional bar applies. Lujan-Armendariz v. INS, 222 F.3d 728, 734 (9th Cir. 2000). Moreover, the Act states that "[n]othing [herein] . . . which limits or eliminates judicial review shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D).
Here, Petitioner raises a colorable question of law: whether his 1999 controlled substance conviction precludes him from seeking an adjustment of status even though it was expunged pursuant to section 1203.4 of the California Penal Code. In such cases, the jurisdictional inquiry collapses into the merits, and so we may determine whether the expungement means Petitioner has not been "convicted" of a controlled substance violation for purposes of the immigration laws. Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1286-87 (9th Cir.2004).1
The BIA's denial of a motion to remand is reviewed for abuse of discretion and will therefore be reversed only if the BIA acted...
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