Rice v. Eric H. Holder Jr

• Decision Date: 26 February 2010
• Docket Number: No. 05-74297.,05-74297.
• Citation: 597 F.3d 952
• Parties: Juan Jose Jimenez RICE, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

597 F.3d 952

Juan Jose Jimenez RICE, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-74297.

United States Court of Appeals,

Ninth Circuit.

Submitted Feb. 11, 2010.*

Filed Feb. 26, 2010.

Nathan M. Zaslow, San Francisco, California, for the petitioner.

Peter D. Keisler, David V. Bernal, and Jamie M. Dowd, U.S. Department of Justice, Washington, DC, for the Attorney General.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-855-635.

Before JOHN T. NOONAN, MARSHA S. BERZON and SANDRA S. IKUTA Circuit Judges.

Opinion by Judge BERZON Concurrence by Judge IKUTA.

BERZON, Circuit Judge:

We must decide whether first-time offenders convicted of using or being under the influence of a controlled substance pursuant to Cal. Health & Safety Code § 11550, where such offenders are subsequently granted relief under Cal.Penal Code § 1203.4, are eligible for the same immigration treatment as those convicted of simple drug possession whose convictions are expunged under the Federal First Offender Act (FFOA). We hold that they are.

FACTUAL AND PROCEDURAL BACKGROUND

Juan Jose Jimenez Rice is a national and citizen of Mexico. He entered the United States as a visitor on January 19, 1987 with permission to stay until July 18, 1987. He never left. He has two U.S. citizen children, a 22-year-old daughter and an 18-year-old son.

On September 20, 1999, the former Immigration and Naturalization Service (INS) issued Jimenez a Notice to Appear charging that he was unlawfully present in the United States and therefore removable. His first removal hearing, in October 1999, was continued so that he could apply for cancellation of removal.

In June 2001, Jimenez was charged in a single complaint with two drug offenses one felony count of possession of cocaine in violation of Cal. Health & Safety Code § 11350(a) and one misdemeanor count of using or being under the influence of a stimulant in violation of Cal. Health & Safety Code § 11550. He pleaded nolo contendere and was convicted of both offenses on November 29, 2001. The Superior Court suspended imposition of sentence and admitted him to three years of supervised probation. In June 2003, the court issued a single order under Cal.Penal Code § 1203.4 terminating Jimenez's probation under Cal.Penal Code S 1203.3, setting aside his pleas of nolo contendere, entering pleas of not guilty, dismissing the complaint, and releasing him from specified penalties and disabilities resulting from the offenses.

The INS moved to pretermit Jimenez's application for cancellation of removal, asserting, among other things, that the convictions would prevent him from establishing the requisite good moral character. In a May 2004 hearing, the Immigration Judge (IJ) held that Jimenez was statutorily ineligible for cancellation of removal because he could not satisfy the good moral character requirements, specifically section 101(f)(3) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(f)(3), because he had been convicted of violating a controlled substance law as defined in INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A).

The Board of Immigration Appeals (BIA) conducted a de novo review and dismissed Jimenez's appeal. It held, first, that he would not have been eligible for relief under the Federal First Offender Act (FFOA), 18 U.S.C. § 3607, for the offense of being under the influence of a controlled substance because the FFOA applies only to simple possession offenses. Thus, that conviction was still valid for immigration purposes, even though he received relief under Cal.Penal Code § 1203.4. Second, the BIA held that "expunged convictions can be used in assessing an alien's good moral character because the facts underlying expunged convictions are relevant in the context of good moral character determinations." Jimenez timely petitioned for review with this court.

ANALYSIS

This court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the BIA'sdetermination that a controlled substance conviction precludes immigration relief as a matter of law. See Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir. 2009).

Where, as here, the BIA conducted a de novo review of the IJ's decision, we review only the decision of the BIA. See Romero v. Holder, 568 F.3d 1054 1059 (9th Cir.2009). The BIA's conclusions of law are reviewed de novo. Id. Review is limited to the actual grounds relied upon by the BIA. See RamirezAltamirano, 563 F.3d at 804. If the BIA's decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case. Id.

A nonpermanent resident seeking cancellation of removal must meet four threshold requirements. INA § 240A(b)(l), 8 U.S.C. § 1229b(b)(l). He must:

(A) [have] been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) [have] been a person of good moral character during such period;

(C) [not have] been convicted of an offense under [8 U.S.C. §]1182(a)(2), 1227(a)(2), or 1227(a)(3) subject to [certain exceptions for victims of domestic violence]; and

(D) establish[ ] that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Id. A person cannot be found to have good moral character if, among other things, he is "convicted of, or... admits having committed, or... admits committing acts which constitute the essential elements of... a violation of... any law or regulation of a State... relating to a controlled substance, " INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i), as long as the offense w^ras committed "during the period for which good moral character is required to be established, " INA § 101(f)(3), 8 U.S.C. § 1101(f)(3).

"[A]s a general rule, an expunged conviction qualifies as a conviction under the INA." De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1024 (9th Cir. 2007) (quoting Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir.2002)). The Federal First Offender Act (FFOA), 18 U.S.C. § 3607, creates an exception to the rule. The FFOA:

allows persons who have never previously violated the narcotics laws and are found guilty of first time simple drug possession to have the charges dismissed without entry of a conviction, provided that the judge deems them suitable for such treatment. The law applies to citizens and aliens alike, and allows those who benefit from it to avoid having their offenses used against them for any purpose.

De Jesus Melendez, 503 F.3d at 1024 (quoting Lujan-Armendariz v. INS, 222 F.3d 728, 737 (9th Cir.2000)).¹

"Given that the FFOA provides immigration relief for first-time defendants found guilty of drug possession in federal court, " Ramirez-Altamirano, 563 F.3d at 806, we have held "as a matter of constitutional equal protection, that the benefits of the Act [must] be extended to aliens whose offenses are expunged under state rehabilitative laws, provided that they would have been eligible for relief under the Act had their offenses been prosecuted as federal crimes." Lujan-Armendariz, 222 F.3d at 749 (citing Paredes-Urrestarazu v. INS, 36 F.3d 801, 811-12 (9th Cir.1994); Garberding v. INS, 30 F.3d 1187, 1191 (9th Cir.1994)).

Further, although the plain language of the FFOA applies only to offenses described in 21 U.S.C. § 844, which provides that it is "unlawful... to possess a controlled substance, " we have held that the FFOA can be applicable to a drug offense less serious than simple possession, possession of drug paraphernalia. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1137 (9th Cir.2000). Noting that Congress intended the FFOA to "permit[ ] first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases, " id. (quoting Lujan-Armendariz, 222 F.3d at 734-35), we determined that Congress "had no need to include possession of drug paraphernalia explicitly under the FFOA because no federal statute made such possession a crime." Ramirez-Altamirano, 563 F.3d at 808. At least in the circumstances of Cardenas's case, we concluded, possession of drug paraphernalia was a "lesser offense" than simple possession of a con trolled substance, so "congressional intent indicates that it should be included under the Act." Cardenas-Uriarte, 227 F.3d at 1137. Our cases thus establish that a state conviction cannot be used for immigration purposes if the alien can show that "(1) the conviction was his first offense; (2) he had not previously been accorded first offender treatment; (3) his conviction was for possession of drugs, or an equivalent or lesser charge such as possession of drug paraphernalia,...; and (4) he received relief under a state rehabilitative statute." Ramirez-Altamirano, 563 F.3d at 812 (internal citation omitted) (emphasis added).

We see no relevant distinction for present purposes between the offenses of possession of drug paraphernalia and using or being under the influence of a controlled substance, as both are generally less serious than simple possession. As with possession of drug paraphernalia "Congress would never have considered including" under the FFOA the offense of using or being under the influence of a controlled substance, because no federal statute covers that crime. Cardenas-Uriarte, 227 F.3d at 1137; see 21 U.S.C. §§ 841-865. Here, as in Cardenas-Uriarte, "[w]e can be sure that [using or being under the influence of a controlled substance] is a lesser offense because it [is] a misdemeanor... while possession of [cocaine is] a felony." Cardenas-Uriarte, 227 F.3d at 1137; see Cal. Health & Safety Code §§ 11350(a), 11550. Moreover, we have observed in other cases that "use of drugs has generally been considered a less serious crime than possession." Medina v. Ashcroft, ...