Lopez v. Sessions

• Citation: 901 F.3d 1071
• Decision Date: 22 August 2018
• Docket Number: No. 15-72747,15-72747
• Parties: Salvador Robles LOPEZ, aka Salvador Robles, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

901 F.3d 1071

Salvador Robles LOPEZ, aka Salvador Robles, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-72747

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 18, 2018—San Francisco, California

Filed August 22, 2018

Thomas D. Pamilla (argued), Law Offices of Thomas D. Pamilla APC, Fremont, California, for Petitioner.

Victor M. Lawrence (argued) Assistant Director; Jennifer A. Singer, Trial Attorney; Jennifer P. Levings, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX7-213

Before: N. Randy Smith and Michelle T. Friedland, Circuit Judges, and Barbara M. G. Lynn,^* Chief District Judge.

Opinion by Chief District Judge Lynn; Dissent by Judge Friedland

LYNN, Chief District Judge:

After Salvador Robles Lopez was convicted of possession for sale of cocaine salt, an immigration judge ordered his deportation, and the Board of Immigration Appeals ("BIA") affirmed. We deny Lopez’s petition for review of the BIA’s decision.

I. BACKGROUND

Lopez is a citizen of Mexico who was admitted to the United States as a lawful permanent resident ("LPR") on October 7, 1984. On September 23, 1996, after entering a plea of no contest, he was convicted of possession for sale of cocaine salt in violation of California Health & Safety Code ("CHSC") § 11351. On January 18, 2008, the conviction was expunged pursuant to California Penal Code § 1203.4.

On September 21, 2009, the Department of Homeland Security ("DHS") initiated deportation proceedings against Lopez. The DHS cited two grounds for deportation: 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a controlled substance violation. Lopez conceded that he was deportable, having been convicted of a controlled substance violation, but denied that he was deportable based on the aggravated felony ground.

The immigration judge held that Lopez’s violation of CHSC § 11351 constituted an aggravated felony, and that his expunged conviction remained a valid ground for deportation. Furthermore, the judge concluded that Lopez was ineligible for a discretionary waiver under the former Immigration and Nationality Act ("INA") § 212(c) and denied deferral under the Convention Against Torture ("CAT"). The judge ordered his deportation, and the BIA affirmed.

II. STANDARDS OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252. We review legal conclusions de novo , such as whether Lopez was convicted of a crime that constitutes an aggravated felony, Flores-Miramontes v. INS , 212 F.3d 1133, 1135 (9th Cir. 2000), whether his expunged conviction remains a valid ground for deportation, de Jesus Melendez v. Gonzales , 503 F.3d 1019, 1023 (9th Cir. 2007), and whether he is eligible for § 212(c) relief, Cervantes-Gonzales v. INS , 244 F.3d 1001, 1004 (9th Cir. 2001).

We review factual findings made as to Lopez’s CAT claim for substantial evidence. Haile v. Holder , 658 F.3d 1122, 1130–31 (9th Cir. 2011). "Substantial evidence" means the determination is supported by "reasonable, substantial, and probative evidence on the record." Id. at 1131 (quoting Morales v. Gonzales , 478 F.3d 972, 983 (9th Cir. 2007) ).

III. DISCUSSION

A. Lopez Is Deportable as an Alien Convicted of an Aggravated Felony

Any alien who is "convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Lopez argues that his violation of CHSC § 11351 does not constitute an aggravated felony. We disagree.

Any state crime that is a categorical match to an offense under the Controlled Substances Act ("CSA") constitutes an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) ; 18 U.S.C. § 924(c)(2). There is a three-step process for determining whether Lopez’s violation of CHSC § 11351 is punishable as a felony under the CSA:

At the first step, we ask whether the statute of conviction is a categorical match to the generic predicate offense; that is, if the statute of conviction criminalizes only as much (or less) conduct than the generic offense. If so, the inquiry ends, because the conviction categorically constitutes a predicate offense. If not, we move on to step two and ask if the statute of conviction's comparatively "overbroad" element is divisible. If not, then our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense. But if the overbroad element (or elements) is divisible, we then continue to the third step, an application of the modified categorical approach.

Medina-Lara v. Holder , 771 F.3d 1106, 1112 (9th Cir. 2014) (citations and footnote omitted).

There is no dispute about the first two steps. First, possession of a controlled substance with intent to distribute is a felony under the CSA. See 21 U.S.C. § 841(a)(1), (b)(1)(C). CHSC § 11351 is categorically broader than this federal offense because "California’s list of controlled substances includes one or more substances not controlled by federal law." Medina-Lara , 771 F.3d at 1112. Second, CHSC § 11351 is "divisible with respect to the type of controlled substance." United States v. Torre-Jimenez , 771 F.3d 1163, 1167 (9th Cir. 2014).

The third step, the modified categorical approach, requires us to determine "whether the facts proven at trial or admitted by the defendant as part of his guilty plea establish that the defendant was convicted of all the elements of the relevant federal generic offense." Torre-Jimenez , 771 F.3d at 1167 (quoting Sanchez-Avalos v. Holder , 693 F.3d 1011, 1014–15 (9th Cir. 2012) ). For a plea, we look to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The indictment and the minute order indicate that Lopez pleaded no contest to possession for sale of cocaine salt. Cocaine salt is a controlled substance found in schedule II of the CSA. See 21 U.S.C. § 812. Because Lopez’s violation of CHSC § 11351 encompasses all of the elements of a felony punishable under the CSA, it qualifies as an aggravated felony.¹

Furthermore, Lopez’s conviction remains a valid ground for deportation, despite its expungement. For immigration purposes, a person generally "continues to stand convicted of an offense notwithstanding a later expungement" under California Penal Code § 1203.4. Ramirez-Castro v. INS , 287 F.3d 1172, 1174 (9th Cir. 2002). We have recognized one exception. If a petitioner could have satisfied the requirements of the Federal First Offender Act ("FFOA"), 18 U.S.C. § 3607, then the expungement of the petitioner’s conviction under state law eliminates the immigration consequences of the offense. See Lujan-Armendariz v. INS , 222 F.3d 728, 749 (9th Cir. 2000), overruled by Nunez-Reyes v. Holder , 646 F.3d 684 (9th Cir. 2011).² However, the FFOA only applies to first time drug offenders convicted of simple possession of a controlled substance. Id. (citing 18 U.S.C. § 3607 ). Because Lopez was convicted of possession for sale of a controlled substance, the exception does not apply. See Lopez-Vasquez v. Holder , 706 F.3d 1072, 1075 (9th Cir. 2013) ("[P]ossession for sale is not a first-time simple possession offense that would qualify for treatment under the FFOA.").

B. Lopez Is Not Eligible for Waiver of Deportation Under § 212(c)

Any LPR with "a lawful unrelinquished domicile of seven consecutive years" was originally eligible to apply for a discretionary waiver from deportation under § 212(c). See I.N.S. v. St. Cyr , 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting 8 U.S.C. § 1182(c) (1994) ). Congress later modified eligibility for § 212(c) relief through the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, 1277 (1996). Under § 440(d) of AEDPA, which became effective April 24, 1996, a LPR who was "deportable by reason of having committed" an aggravated felony became ineligible for § 212(c) relief. Id. On April 1, 1997, § 212(c) was repealed altogether. See Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, § 304(b), 110 Stat. 3009 -546, 3009-597 (1996). However, this relief remains available to an alien "whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." St. Cyr , 533 U.S. at 290, 121 S.Ct. 2271.

The BIA held that Lopez was ineligible for § 212(c) relief because he was convicted of an aggravated felony after the effective date of § 440(d). Lopez argues that § 440(d) has an impermissible retroactive effect because the conduct underlying his aggravated felony conviction predates the effective date.³ We disagree.

The Supreme Court has outlined a two-step process for determining whether a civil statute may apply retroactively:

[First,] the court must determine whether Congress expressly provided that the statute should apply retroactively. If the answer is yes, then the inquiry is complete and the statute applies retroactively. If the answer is no, then the court must proceed to the second step and determine whether the statute would have a retroactive effect. If the statute would operate retroactively, then the court must apply the traditional presumption against retroactivity and prohibit retroactive application of the statute.

Cardenas-Delgado v. Holder , 720 F.3d 1111, 1115 (9th Cir. 2013) (citing Landgraf v. USI Film Products , 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ) (internal quotation marks and citations...