FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLAVIO NUNEZ-REYES, aka Flavio
Reyes,
No. 05-74350
Petitioner,
v. Agency No.
A078-181-648
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 6, 2009—San Francisco, California
Filed April 23, 2010
Before: Betty B. Fletcher, William C. Canby, Jr., and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Graber
6053
NUNEZ-REYES v. HOLDER 6055
COUNSEL
Frank P. Sprouls, Law Office of Ricci & Sprouls, San Fran-
cisco, California, for the petitioner.
Erica Miles and Keith I. Bernstein, Office of Immigration Lit-
igation, Civil Division, United States Department of Justice,
Washington, D.C., for the respondent.
OPINION
PER CURIAM:
Petitioner Flavio Nunez-Reyes, a native and citizen of
Mexico, petitions for review of the Board of Immigration
Appeals’ (“BIA’s”) decision denying his application for can-
cellation of removal. We grant the petition and remand for
further proceedings.
Nunez-Reyes 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
6056 NUNEZ-REYES v. HOLDER
dismissed the charges under California Penal Code section
1210.1. Under that provision, the state court “shall . . . set
aside [the conviction] and . . . dismiss the indictment” if the
defendant successfully completes probation and other condi-
tions are met. Id. § 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 Nunez-Reyes as removable. Nunez-Reyes
conceded removability but applied for adjustment of status
due to his marriage to a United States citizen and cancellation
of removal. After a series of hearings, the immigration judge
(“IJ”) denied all forms of relief and ordered Nunez-Reyes
removed. The IJ held that the state convictions rendered
Nunez-Reyes ineligible for any form of relief, regardless of
whether the convictions had been dismissed.
On appeal, the BIA affirmed the IJ’s decision. The BIA
held that Nunez-Reyes’ conviction for being under the influ-
ence of methamphetamine was a “conviction” for purposes of
the immigration laws, and was “not one for which federal first
offender treatment would be available.” The BIA explained
that the Federal First Offender Act (“FFOA”), 18 U.S.C.
§ 3607, “applies only to simple possession offenses described
in 21 U.S.C. § 844.” While recognizing that the Ninth Circuit
has applied FFOA treatment to convictions for “lesser”
offenses, the BIA reasoned that this expanded FFOA treat-
ment applied only when the defendant had pleaded down
from a charge explicitly covered by the FFOA, which Nunez-
Reyes had not done. Further, the BIA found that the crime of
being under the influence of a particular drug was not a lesser
offense than simple possession. Because Nunez-Reyes’ con-
viction would not have been eligible for FFOA treatment, the
BIA explained, the expungement under California law did not
erase the conviction for immigration purposes. Thus, the BIA
held, Nunez-Reyes remained convicted of the controlled sub-
NUNEZ-REYES v. HOLDER 6057
stance offense and could not demonstrate eligibility for can-
cellation of removal.
We review de novo the BIA’s legal determinations.
Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir.
2009). “We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D)
to review the BIA’s determination that a controlled substance
conviction precludes immigration relief as a matter of law.”
Id. “Our review is limited to the actual grounds relied upon
by the BIA.” Id. 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.
[1] In general, the FFOA permits federal courts to expunge
a federal conviction for simple possession of drugs if the
defendant has not previously been subject to an FFOA
expungement and successfully completes up to one year of
probation. 18 U.S.C. § 3607. The FFOA mandates that a suc-
cessfully expunged conviction “shall not be considered a con-
viction for the purpose of a disqualification or a disability
imposed by law upon conviction of a crime, or for any other
purpose.” Id. § 3607(b). Interpreting that provision, we have
held that an alien has not been “convicted” if his or her fed-
eral conviction had been expunged under the provisions of the
FFOA and that equal protection requires us to treat the
expungement of a state conviction for simple possession in
the same manner. Lujan-Armendariz v. INS, 222 F.3d 728,
734-49 (9th Cir. 2000); Garberding v. INS, 30 F.3d 1187,
1190 (9th Cir. 1994). We applied this logic in Cardenas-
Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000), to the crime of
possession of drug paraphernalia, reasoning that it, too, is a
lesser offense than simple possession and thus qualifies for
FFOA treatment if expunged under state law. Cardenas-
Uriarte, 227 F.3d at 1137. We reasoned that Congress would
not have considered including possession of drug parapherna-
lia under the FFOA because it is not a federal crime, but that
congressional intent indicated the lesser crime of possession
of drug paraphernalia should be given FFOA treatment. Id.
6058 NUNEZ-REYES v. HOLDER
[2] Of particular relevance here, we recently held in Rice
v. Holder, 597 F.3d 952 (9th Cir. 2010), that an individual
convicted for the first time in state court of using or being
under the influence of a controlled substance was eligible for
the same immigration treatment as individuals convicted of
drug possession under the FFOA. Rice, 597 F.3d at 957.
There, the petitioner was charged with one felony count of
possession of cocaine and one misdemeanor count of using or
being under the influence of a stimulant under California law.
Id. at 954. He pleaded nolo contendere and was convicted. Id.
The court suspended the sentence and gave the petitioner
three years of supervised probation. Id. At the completion of
the probation term, the court set aside the nolo contendere
pleas, entered not guilty pleas, and dismissed the original
complaint. Id. The BIA, however, held that the petitioner’s
conviction for being under the influence rendered him ineligi-
ble for relief. Id. The BIA ruled that the crime of being under
the influence was not eligible for FFOA relief because the
FFOA applies only to simple possession offenses. Id.
We reversed, relying on Cardenas-Uriarte, and held that
there was “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.” Id.
at 956. “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.” Id.
(quoting Cardenas-Uriarte, 227 F.3d at 1137).
[3] Here, as in Rice, Nunez-Reyes was charged with one
count of felony possession and one misdemeanor count of
being under the influence. He pleaded guilty and the state
court dismissed the charges under California Penal Code sec-
tion 1210.1. Thus, “the arrest and the conviction shall be
deemed never to have occurred,” id. § 1210.1(e)(1), and the
conviction cannot be used to render Nunez-Reyes ineligible
NUNEZ-REYES v. HOLDER 6059
for cancellation of removal. As in Cardenas-Uriarte and Rice,
“[w]e can be sure that [being under the influence] is a lesser
offense because it would be a misdemeanor once probation
was successfully completed while possession of the drugs
would have been a felony.” Cardenas-Uriarte, 227 F.3d at
1137; see also Rice, 597 F.3d at 956. Thus, we hold that
Nunez-Reyes’ expunged conviction under California Health
and Safety Code section 11550(a) for being under the influ-
ence may not be treated as a “conviction” for purposes of the
immigration laws.
We also reject the BIA’s holding that our reasoning in
Cardenas-Uriarte is undermined because Nunez-Reyes “was
charged with the same offense to which he ultimately pleaded
guilty; he did not ‘plead down’ from a charge of simple pos-
session.” The holding in Rice clarifies, as we do here, that
expanded FFOA treatment of lesser crimes does not depend
on whether the petitioner originally was charged with simple
possession and pleaded down from the charge. The proper
focus is the petitioner’s conduct, not the prosecutor’s conduct.
See, e.g., Ramirez-Altamirano, 563 F.3d at 809 (stating that
“ ‘the critical question is . . . what [the petitioner] did’ ” (alter-
ation in original) (quoting Lujan-Armendariz, 222 F.3d at 738
n.18)).
We decline to address the government’s other arguments
concerning grounds on which the BIA did not rely. Because
“we conclude that 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. at 804 (internal
quotation marks omitted).
Petition GRANTED; REMANDED for further proceed-
ings.
6060 NUNEZ-REYES v. HOLDER
GRABER, Circuit Judge, concurring:
Our recent opinion in Rice v. Holder, 597 F.3d 952 (9th
Cir. 2010), answered the legal questions raised in this case,
and no factual distinction exists. Therefore, I am compelled to
concur in the per curiam opinion. See generally Miller v.
Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc).
I write separately, however, to express my disagreement
with our underlying rule that equal protection principles
require Congress to treat aliens subject to a state expungement
identically to aliens subject to a federal expungement. Though
the genesis of that conclusion is understandable, its continued
application is unjustified. Like others, I think that we should
revisit our current rule. See Rice, 597 F.3d at 957-58 (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); see also Dillingham
v. INS, 267 F.3d 996, 1012-13 (9th Cir. 2001) (Fernandez, J.,
dissenting) (suggesting that the rule is incorrect but conclud-
ing that, “for purposes of this case, that is neither here nor
there”).
In the years following the 1970 enactment of the Federal
First Offender Act (“FFOA”), the BIA held that an expunged
state conviction for simple possession of drugs was not a
“conviction” for purposes of the immigration laws, provided
that the state expungement statute was a “state counterpart” to
the FFOA. In re Deris, 20 I. & N. Dec. 5, 11 (B.I.A. 1989);
In re Werk, 16 I. & N. Dec. 234, 235 (B.I.A. 1977). In many
states, the state expungement statute qualified as a “state
counterpart” to the FFOA, and an alien’s expunged conviction
generally had no bearing on his or her rights under the immi-
gration laws. In other states, however, the state expungement
statute was not a “state counterpart” to the FFOA because it
permitted expungement of crimes of greater seriousness than
simple possession. In re Deris, 20 I. & N. Dec. at 11. In those
states, all expungements were invalid for purposes of the
NUNEZ-REYES v. HOLDER 6061
immigration laws, even if the alien in question had been con-
victed only of simple possession. Id.
In Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994),
we held that the BIA’s rule violated equal protection princi-
ples as applied to the petitioner’s expunged Montana convic-
tion for simple possession: “[T]here is no rational basis for
treating Garberding differently. Had she possessed her mari-
juana in Michigan, Virginia or Wisconsin, she would not have
been subject to deportation.” We explained: “The state legis-
lature in Montana has seen fit to extend the privilege of
expungement to persons who are convicted of drug offenses
more serious than Garberding’s simple first time possession.
It is this fortuitous circumstance, not Garberding’s conduct,
which the INS used to distinguish her for deportation.” Id. at
1191. The next year, the BIA accepted our persuasive reason-
ing and adopted our approach. In re Manrique, 21 I. & N.
Dec. 58 (B.I.A. 1995).
In 1996, however, Congress enacted a new definition of the
term “conviction” for immigration purposes:
The term “conviction” means, with respect to an
alien, a formal judgment of guilt of the alien entered
by a court or, if adjudication of guilt has been with-
held, where—
(i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendere
or has admitted sufficient facts to warrant a finding
of guilt, and
(ii) the judge has ordered some form of punish-
ment, penalty, or restraint on the alien’s liberty to be
imposed.
8 U.S.C. § 1101(a)(48)(A). Before any of our sister circuits
had interpreted the effect of this new definition with respect
6062 NUNEZ-REYES v. HOLDER
to state-court expungements of drug possession convictions,
we decided Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000). We framed the question as whether the new definition
impliedly repealed the FFOA, and we held that it had not. Id.
at 743-49. Because there had been no implied repeal, we held
that we remained bound by Garberding’s holding that, “as a
matter of constitutional equal protection, . . . 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. In a footnote, we rejected the
government’s argument that there was a rational basis for
treating aliens subject to an expunged state conviction differ-
ently than aliens subject to an expunged federal conviction.
See id. at 743 n.24 (“Most important, 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.”).
Since then, not only has the BIA rejected our analysis, but
so has every sister circuit—seven in total—to have addressed
the issue. In re Salazar-Regino, 23 I. & N. Dec. 223, 235
(B.I.A. 2002) (en banc); 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. Attorney 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 jurisdic-
tion of the Ninth Circuit. We therefore conclude that,
except in the Ninth Circuit, a first-time simple drug
NUNEZ-REYES v. HOLDER 6063
possession offense expunged under a state rehabilita-
tive statute is a conviction under [the immigration
laws].
In re Salazar-Regino, 23 I. & N. Dec. at 235.
It is easy to understand why the BIA and our sister circuits
have disagreed with our view. The issue is whether there is
any rational basis to distinguish between aliens subject to a
state expungement and aliens subject to a federal expunge-
ment. 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 distinguish-
ing among groups of aliens thus are valid unless wholly irra-
tional.” 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 addi-
tional measure of deference when it legislates as to admission,
exclusion, removal, naturalization or other matters pertaining
to aliens.”), petition for cert. filed, 78 U.S.L.W. 3322 (U.S.
Nov. 16, 2009) (No. 09-600).
Our sister circuits have held that this relaxed standard eas-
ily 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 opera-
tion of state schemes that resemble the FFOA. Con-
gress 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 advan-
6064 NUNEZ-REYES v. HOLDER
tage of those state schemes to escape what is consid-
ered 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.
I would offer another rational basis. 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. Con-
gress reasonably could have concluded that, in the strong
interest of uniformity, it would not recognize any state
expungements rather than adopt a piecemeal approach.
When we decided Lujan-Armendariz, we did not have the
benefit of our sister circuits’ contrary opinions or the BIA’s
contrary opinion. See Chen v. Mukasey, 524 F.3d 1028, 1033
(9th Cir. 2008) (“National uniformity in the immigration con-
text also counsels deference where, as here, a failure to defer
would cause a split of authority among the circuits.”). Impor-
tantly, in my view, we also did not have the benefit of the
BIA’s decision to deny recognition of state expungements
under all state expungement statutes. Our holding in
Garberding—that it is irrational to recognize some states’
expungements but not others’—is inapposite in light of the
BIA’s current interpretation.
In summary, were we writing on a blank slate, or were we
to reconsider our rule en banc, I would join our sister circuits’
unanimous recognition that Congress reasonably distin-
guished between aliens subject to a state expungement and
aliens subject to a federal expungement.