Romero v. Holder

• Decision Date: 08 June 2009
• Docket Number: No. 05-71029.,05-71029.
• Citation: 568 F.3d 1054
• Parties: Jesus ROMERO, a.k.a. Jesus Romero-Tapia, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

568 F.3d 1054

Jesus ROMERO, a.k.a. Jesus Romero-Tapia, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-71029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2008.

Filed June 8, 2009.

William Baker, Moreno & Associates, Chula Vista, CA, for petitioner.

Peter D. Keisler, William C. Peachey, Lyle D. Jentzer, Washington, D.C., for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070-715-058.

Before: HARRY PREGERSON, D.W. NELSON and DAVID R. THOMPSON, Circuit Judges.

PREGERSON, Circuit Judge:

Jesus Romero ("Romero") petitions for review of the Board of Immigration Appeals's ("BIA") order denying his motion to reopen and ordering him removed from the United States. In removal proceedings, Romero applied for cancellation of removal under 8 U.S.C. § 1229b(b). To qualify for that form of relief, Romero was required to show that he was a person of "good moral character." 8 U.S.C. § 1229b(b)(1)(B). The BIA affirmed the finding of the Immigration Judge ("IJ") that Romero's guilty plea to a first-time, simple possession drug offense, which was deferred for eighteen months and then dismissed under a state rehabilitative statute, statutorily barred Romero from proving good moral character. Because the BIA erred by finding Romero statutorily barred from showing good moral character on the basis of his guilty plea which was later expunged, we grant the petition and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Romero was born in Mexico in July 1977. In February 1988, when Romero was ten years old, he accompanied his mother into the United States. At that time, his mother possessed a valid Border Crossing Card, which permitted them to remain in the United States for no more than seventy-two hours. Romero has continuously resided in this country since his entry. Both Romero's parents are now lawful permanent residents.

In 1998, when Romero was twenty years old, he was arrested for possession of a controlled substance in violation of California Health and Safety Code § 11377(a). Romero was allowed to participate in California's drug rehabilitation program under California Penal Code § 1000.

Pursuant to the rehabilitation program, in April 1998, Romero pled guilty to one count of simple possession of a controlled substance, and the judge deferred entry of judgment for eighteen months. When a defendant successfully completes the deferred judgment program, the criminal charges against him or her are dismissed. Cal.Penal Code § 1000.3 (stating that "[i]f the defendant has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period, the criminal charge or charges shall be dismissed."). Furthermore, following successful completion of the program, California Penal Code section 1000.1(d) provides that the "plea of guilty ... shall not constitute a conviction for any purpose...."

If Romero successfully completed the program, the criminal charge against him was scheduled to be dismissed in October 1999. Following Romero's appearance in state court on the drug charge, however, immigration officials¹ detained Romero and initiated removal proceedings against him, charging him as being removable for overstaying his visa.² In Immigration Court, Romero admitted the allegations and conceded his removability, and in October 1998, he filed an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b).

To be eligible for cancellation of removal under section 1229b(b), Romero needed to satisfy four requirements: (1) that he had been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of application, (2) that he had been a person of good moral character during that period, (3) that he had not been convicted of an offense under § 1182(a)(2)³ and certain other offenses not relevant here, and (4) that removal would cause "exceptional and extremely unusual hardship" to Romero's lawful permanent resident parents. 8 U.S.C. § 1229b(b).

In considering whether Romero was eligible for cancellation of removal, the IJ considered two potential effects concerning Romero's controlled substance offense, which had not yet been expunged. To satisfy the second eligibility requirement for cancellation of removal, Romero had to show that he was a person of good moral character for a period of ten years preceding the date of his application for cancellation. But a person cannot be considered one of good moral character if he or she was "convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of" an offense under 8 U.S.C. § 1182(a)(2)(A) or (B). 8 U.S.C. § 1101(f)(3) (emphases added). The IJ determined that if Romero's state court guilty plea were classified as an "admission" that he had committed a controlled substance offense, Romero would be statutorily ineligible for cancellation of removal because under 1229b(b)(1)(B) he would not be considered to be a person of good moral character.

On the other hand, if Romero's controlled substance offense were classified as a "conviction," he could not satisfy the third eligibility requirement for cancellation of removal because he would be a person convicted of a controlled substance offense under 8 U.SC. § 1182(a)(2)(A)(i)(II). 8 U.S.C. § 1229b(b). The IJ held hearings to determine whether Romero's charged controlled substance offense should be treated as a "conviction" under Congress's 1996 definition of that term under 8 U.S.C. § 1101(a)(48)(A)⁴, even though the state court deferred judgment for eighteen months.

In February 1999, the IJ issued her decision. The IJ found that Romero could not show good moral character, the second requirement for cancellation of removal under 8 U.S.C. § 1229b(b). The IJ found that Romero admitted he had committed a controlled substance offense by pleading guilty in state court. Accordingly, the IJ found that Romero could not be considered a person of good moral character under 8 U.S.C. § 1101(f)(3), even though entry of judgment on the controlled substance offense had not been entered but deferred by the state court.

The IJ found that Romero's drug offense failed to meet Congress's new 1996 definition of a "conviction" as defined by 8 U.S.C. § 1101(a)(48)(A). Specifically, the new definition of "conviction" requires that a judge order "some form of punishment, penalty, or restraint on the alien's liberty to be imposed." 8 U.S.C. § 1101(a)(48)(A)(ii). The IJ found that the requirement that Romero enroll in a deferred judgment/AIDS education program for three months was not a "form of punishment, penalty, or restraint on liberty to be imposed" within the meaning of section 1101(a)(48)(A). Accordingly, the IJ found that Romero satisfied the third requirement for eligibility for cancellation of removal because he was not "convicted" of a controlled substance offense under 8 U.S.C. § 1182. But because Romero could not satisfy section 1229b(b)'s second eligibility requirement by showing good moral character, the IJ ruled that Romero was not statutorily eligible for cancellation of removal and ordered him removed.

In June 1999, Romero timely appealed to the BIA. While Romero's appeal was pending before the BIA, we issued our opinion in Lujan-Armendariz v. INS, 222 F.3d 728(9th Cir.2000). In Lujan-Armendariz, we held that a first-time, simple possession drug conviction expunged under the Federal First Offender Act ("FFOA") could not be used for immigration purposes, nor could a state conviction expunged under a state rehabilitative statute be used for immigration purposes, where the defendant in the state action would have been eligible for relief under the FFOA. 222 F.3d at 749.

In February 2003, the BIA dismissed Romero's appeal. The BIA concluded that the IJ's determination that Romero's state court guilty plea was not a "conviction" was in accordance with Ninth Circuit law as articulated in Lujan-Armendariz. Accordingly, Romero satisfied the third cancellation of removal requirement, because he was not "convicted" of a controlled substance offense. 8 U.S.C. 1229b(b)(C).

The BIA agreed with the IJ, however, that Romero's guilty plea constituted an "admission" of a violation of a law relating to a controlled substance which made him unable to demonstrate that he was a person of good moral character under 8 U.S.C. 1101(f)(3). The BIA agreed with the IJ that Romero was statutorily ineligible for cancellation of removal and dismissed the appeal.

In April 2003, Romero timely filed a motion to reopen before the BIA. Romero submitted new evidence with the motion, showing that on April 8, 2003, nunc pro tunc to October 7, 1999, the state court set aside Romero's guilty plea and dismissed the charge against him after he successfully completed the drug rehabilitation program. Romero argued that Lujan-Armendariz controverted the BIA's finding that Romero's guilty plea constituted an "admission" rendering him ineligible for cancellation of removal. Because the charge against Romero had been dismissed, Romero argued that under Lujan-Armendariz, the offense could not be used against him for any purpose. With the motion, Romero submitted copies of the relevant state court documents and requested that the case be remanded to the IJ for consideration of the new evidence and in light of Lujan-Armendariz. The Government opposed the motion.

In August 2003 the BIA denied Romero's motion to reopen. The BIA found that while the court documents relating to Romero's conviction were not previously available to Romero, "their contents [were] not sufficiently material to warrant the reopening and remand of [Romero's] case." The BIA explained that its earlier dismissal of Romero's appeal was not based on Romero's controlled substance conviction, but...