Nunez–reyes v. Holder

Decision Date14 July 2011
Docket NumberNo. 05–74350.,05–74350.
Citation646 F.3d 684
PartiesFlavio NUNEZ–REYES, aka Flavio Reyes, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalWest's Ann.Cal.Penal Code § 1210.1(e)(1) Frank P. Sprouls, Law Office of Ricci & Sprouls, San Francisco, CA, for the petitioner.Holly M. Smith and Keith I. Bernstein, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.Theshia Naidoo, Drug Policy Alliance, Berkeley, CA; Jayashri Shrikantiah, Stanford Law School Immigrants' Rights Clinic, Stanford, CA; and Stephen W. Manning, Immigrant Law Group PC, Portland, OR, for Amici Curiae.On Petition for Review of an Order of the Board of Immigration Appeals. B.I.A. No. A078–181–648.Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, BETTY B. FLETCHER, HARRY PREGERSON, DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS, SUSAN P. GRABER, KIM McLANE WARDLAW, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge IKUTA; Dissent by Judge PREGERSON.


GRABER, Circuit Judge:

Petitioner Flavio Nunez–Reyes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' (“BIA”) decision denying his application for cancellation of removal. We deny the petition. In the course of doing so, sitting as an en banc court, we overrule our equal protection holding in Lujan–Armendariz v. INS, 222 F.3d 728 (9th Cir.2000). We also conclude that, in light of the equities and other considerations, we will apply today's new rule only prospectively.*


Petitioner entered the United States in 1992. In 2001, he was charged in state court with one felony count of possession of methamphetamine, in violation of California Health and Safety Code section 11377(a), and one misdemeanor count of being under the influence of methamphetamine, in violation of California Health and Safety Code section 11550(a). He pleaded guilty to both counts, but the state court eventually dismissed the charges under California Penal Code section 1210.1(e)(1), held unconstitutional in other part by Gardner v. Schwarzenegger, 178 Cal.App.4th 1366, 101 Cal.Rptr.3d 229 (2009). Under that provision, the state court “shall ... set aside [the conviction] and ... dismiss the indictment” if the defendant successfully completes a drug treatment program and meets other conditions. Cal.Penal Code § 1210.1(e)(1). [E]xcept as provided [in other subsections], both the arrest and the conviction shall be deemed never to have occurred.” Id.

In early 2002, the federal government issued a notice to appear, charging Petitioner with being removable. Petitioner conceded removability but applied for adjustment of status and cancellation of removal. The immigration judge (“IJ”) denied all forms of relief and ordered Petitioner removed. The IJ held that the state convictions rendered Petitioner ineligible for any form of relief even though the state court later had dismissed the convictions. The BIA affirmed the IJ's decision.

Petitioner timely petitioned for review. A three-judge panel granted the petition because of our rule, first announced in Lujan–Armendariz, that “equal protection requires us to treat the expungement of a state conviction for simple possession in the same manner” as the expungement of a federal conviction for simple possession. Nunez–Reyes v. Holder, 602 F.3d 1102, 1104 (9th Cir.2010) (per curiam). Judge Graber wrote separately to state reasons why we should revisit the rule announced in Lujan–Armendariz. See id. at 1105 (Graber, J., concurring) (citing Rice v. Holder, 597 F.3d 952, 957–58 (9th Cir.2010) (Ikuta, J., concurring) (arguing that we should revisit this rule); Ramirez–Altamirano v. Holder, 563 F.3d 800, 816–17 (9th Cir.2009) (Ikuta, J., dissenting) (same); Dillingham v. INS, 267 F.3d 996, 1012–13 (9th Cir.2001) (Fernandez, J., dissenting) (suggesting that the Lujan–Armendariz rule is incorrect but concluding that, “for purposes of this case, that is neither here nor there”)).

We then granted rehearing en banc. Nunez–Reyes v. Holder, 631 F.3d 1295 (9th Cir.2010) (order).


We review de novo the BIA's determination “that a controlled substance conviction precludes immigration relief as a matter of law.” Ramirez–Altamirano, 563 F.3d at 804.

A. We overrule Lujan–Armendariz.

Does a state-court conviction for a simple-possession drug crime, later expunged by the state court, nevertheless constitute a “conviction” for federal immigration purposes? History has provided an ever-changing answer to that question. See In re O–T–, 4 I. & N. Dec. 265, 268 (B.I.A.1951) ( “yes”); In re A–F–, 8 I. & N. Dec. 429, 445 (Att'y Gen.1959) (“no”); In re Werk, 16 I. & N. Dec. 234, 235–36 (B.I.A.1977) (“yes, in some circumstances”); Garberding v. INS, 30 F.3d 1187, 1190–91 (9th Cir.1994) ( “no”); In re Manrique, 21 I. & N. Dec. 58, 62–64 (B.I.A.1995) (“no”). Against that backdrop, in 1996, Congress enacted significant changes to our immigration laws, which included a new definition of the term “conviction.” 8 U.S.C. § 1101(a)(48)(A).1

In Lujan–Armendariz, we addressed the effect of the new definition on a petitioner's expunged state conviction for a simple-possession drug crime. We began by considering whether a federal conviction, later expunged under the Federal First Offender Act (“FFOA”), nevertheless constitutes a “conviction” for immigration purposes. Importantly, the FFOA mandates that a successfully expunged federal conviction shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose. 18 U.S.C. § 3607(b) (emphases added). We thoroughly examined the apparent conflict between the quoted text of the FFOA and the new definition of “conviction.” Lujan–Armendariz, 222 F.3d at 734–43.

But we relegated to a footnote a very important additional step in the analysis: Did Congress have a rational basis for distinguishing between expunged federal convictions and expunged state convictions? We answered as follows: “INS counsel offered no reason, and we cannot conceive of any, why Congress would have wanted aliens found guilty of federal drug crimes to be treated more leniently than aliens found guilty of state drug crimes.” Id. at 743 n. 24. Our brief analysis of this important issue is understandable in light of the government's silence. But we now are persuaded that we erred.2

Since our decision in Lujan–Armendariz, the BIA and every sister circuit to have addressed the issue—eight in total—have rejected our holding. In re Salazar–Regino, 23 I. & N. Dec. 223, 235 (B.I.A.2002) (en banc); Wellington v. Holder, 623 F.3d 115, 120–21 (2d Cir.2010) (per curiam), cert. denied, ––– U.S. ––––, ––– S.Ct. ––––, 180 L.Ed.2d 245, 79 U.S.L.W. 3442 (U.S. June 6, 2011) (No. 10–933); Danso v. Gonzales, 489 F.3d 709, 716 (5th Cir.2007); Ramos v. Gonzales, 414 F.3d 800, 805–06 (7th Cir.2005); Resendiz–Alcaraz v. U.S. Att'y Gen., 383 F.3d 1262, 1271–72 (11th Cir.2004); Elkins v. Comfort, 392 F.3d 1159, 1163–64 (10th Cir.2004); Acosta v. Ashcroft, 341 F.3d 218, 224–27 (3d Cir.2003); Vasquez–Velezmoro v. INS, 281 F.3d 693, 697–98 (8th Cir.2002); Herrera–Inirio v. INS, 208 F.3d 299, 304–09 (1st Cir.2000). The BIA held:

After considering the analysis set forth in Lujan–Armendariz ..., we decline to apply the ruling in that decision to cases arising outside of the jurisdiction of the Ninth Circuit. We therefore conclude that, except in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under [the immigration laws].

In re Salazar–Regino, 23 I. & N. Dec. at 235.

Having reconsidered the issue, we now agree with the BIA and our sister circuits. A very relaxed form of rational basis review applies to this inquiry: [F]ederal classifications based on alienage are subject to relaxed scrutiny. Federal classifications distinguishing among groups of aliens thus are valid unless wholly irrational.” Garberding, 30 F.3d at 1190 (citation and internal quotation marks omitted); see also Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir.2009) (en banc) (per curiam) (Congress has particularly broad and sweeping powers when it comes to immigration, and is therefore entitled to an additional measure of deference when it legislates as to admission, exclusion, removal, naturalization or other matters pertaining to aliens.”), cert. denied, ––– U.S. ––––, 130 S.Ct. 3272, 176 L.Ed.2d 1182 (2010). That standard easily is met here. The Third Circuit put it well:

Familiar with the operation of the federal criminal justice system, Congress could have thought that aliens whose federal charges are dismissed under the FFOA are unlikely to present a substantial threat of committing subsequent serious crimes. By contrast, Congress may have been unfamiliar with the operation of state schemes that resemble the FFOA. Congress could have worried that state criminal justice systems, under the pressure created by heavy case loads, might permit dangerous offenders to plead down to simple possession charges and take advantage of those state schemes to escape what is considered a conviction under state law. Particularly in view of Congress's power in immigration matters, it seems plain that rational-basis review is satisfied here.

Acosta, 341 F.3d at 227. Another rational basis exists as well:

Not all states permit expungement. A person convicted in such a state would be ineligible for relief under the immigration laws, whereas a person convicted in a different state would be eligible. Congress reasonably could have concluded that, in the strong...

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