Melendez v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM DE JESUS MELENDEZ, 
Petitioner, No. 05-73581
v.
 Agency No.
A76-859-991
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 20, 2007—San Francisco, California

Filed September 19, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,
Stephen S. Trott, Circuit Judge, and Gary A. Feess,*
District Judge.

Opinion by Judge Feess

*The Honorable Gary A. Feess, United States District Judge for the
Central District of California, sitting by designation.

12653
 MELENDEZ v. GONZALES 12655

COUNSEL

Lamar Peckham, Santa Rosa, California, for the petitioner.
12656 MELENDEZ v. GONZALES
Marshall Tamor Golding, United States Department of Jus-
tice, Washington, D.C., for the respondent.

OPINION

FEESS, District Judge:

This case presents the question whether an alien may avoid
the immigration consequences of a drug conviction as a “first
time offender” when, as the result of a previous arrest for drug
possession, he was granted “pretrial diversion” under a state
rehabilitation scheme that did not require him to plead guilty.
We hold that he may not.

I.

INTRODUCTION

Petitioner William de Jesus Melendez appeals from a deci-
sion of the Board of Immigration Appeals (“BIA”) denying
his motion for adjustment of status and ordering him removed
to El Salvador. Petitioner entered the United States without
having been admitted or paroled, and was arrested and prose-
cuted for possession of a controlled substance by the State of
California in 1996. The 1996 prosecution resulted in “pretrial
diversion,” and because Petitioner successfully completed a
drug education, treatment, or rehabilitation program, the crim-
inal charges were eventually dismissed without Petitioner
entering a plea or being found guilty. In 1998, the government
initiated removal proceedings, after which Petitioner married
a United States citizen who in early 1999 petitioned for an
immigrant relative visa (form I-130) on Petitioner’s behalf.
The I-130 was approved, but whatever advantage Petitioner
might have gained as a result was undermined when he was
arrested again and convicted in late 1999 of possession of a
controlled substance.
 MELENDEZ v. GONZALES 12657
Thereafter, an Immigration Judge (“IJ”) denied petitioner’s
application for adjustment of status and ordered him removed
to El Salvador because of his 1999 conviction. Petitioner
appealed to the BIA, and during the pendency of that appeal,
obtained an order from the state court expunging his convic-
tion under California Penal Code section 1203.4. Despite the
relief from the state court, the BIA dismissed the appeal and
denied Petitioner’s request for remand, reasoning that section
1203.4 expungements do not eliminate the conviction for
immigration purposes. Petitioner appealed to this court, and
also moved the BIA for reconsideration on the ground that the
section 1203.4 expungement was the equivalent of a Federal
First Offender Act (“FFOA”) expungement and therefore pre-
cluded consideration of his conviction for immigration pur-
poses. The BIA rejected the argument and denied the motion
because the 1996 diversion constituted Petitioner’s one oppor-
tunity to obtain the benefits conferred under the FFOA.

Although Petitioner has not appealed the denial of the
motion for reconsideration, we hold that the rationale articu-
lated in that denial was correct and would make any remand
an exercise in futility: the BIA properly concluded the 1996
diversion barred Petitioner from further relief under the
FFOA. Even though the diversion did not involve a guilty
plea, the BIA need only have had a rational basis for treating
Petitioner as other than a one-time offender. Because the fact
of his 1996 arrest and consent to participate in diversion con-
stitutes such a rational basis, the BIA properly concluded Peti-
tioner was ineligible for further leniency for the 1999
conviction. The petition is therefore DISMISSED.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is a 32-year old native and citizen of El Salvador
who entered the United States in February 1992 without hav-
ing been admitted or paroled, and is thus removable under
12658 MELENDEZ v. GONZALES
section 212(a)(6)(A)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a). In December 1996, he was charged
with violations of section 23152(a) of the California Vehicle
Code for driving under the influence, and section 11350(a) of
the California Health and Safety Code for possession of a
controlled substance. Apparently as the result of a plea bar-
gain, the Vehicle Code charge was eventually reduced to a
violation of section 23103.5 for reckless driving related to
alcohol; Petitioner pled no contest to the reduced charge and
was sentenced. As to the controlled substance charge, on
December 24, 1996, Petitioner was granted “diversion” pursu-
ant to section 1000.2 of the California Penal Code, and the
criminal proceedings were suspended. Although the record
does not indicate precisely what the diversion entailed, sec-
tion 1000.2 mandated that Petitioner participate in either a
county-run or county-approved drug education, treatment, or
rehabilitation program. In any event, Petitioner successfully
completed the diversion program, and so the controlled sub-
stance charge was dismissed on September 5, 1997.

The government initiated removal proceedings in Decem-
ber 1998. Shortly thereafter, Petitioner married a United
States citizen, who filed a petition for an immigrant relative
visa (form I-130) on Petitioner’s behalf on August 16, 1999.

Just months after the petition was filed, however, in Octo-
ber 1999, Petitioner again was charged with, among other
things, possession of a controlled substance (cocaine or
methamphetamine), this time pursuant to section 11377(a) of
the California Health and Safety Code. On December 6, 1999,
he was convicted.

Despite the conviction, Petitioner continued his efforts to
remain in the United States. On May 7, 2001, the I-130 was
approved. On the basis of that approval, on August 8, 2001,
Petitioner applied for adjustment of status with the Immigra-
tion Court.
 MELENDEZ v. GONZALES 12659
The government opposed the adjustment on the basis of
Petitioner’s criminal history. On January 29, 2004, it asked
the Immigration Court to deny his petition because of the
1999 conviction. The next day, Petitioner moved for a contin-
uance so that he could attempt to have the 1999 conviction
expunged. The IJ denied the motion on the ground that no
relief in the state court would change the immigration conse-
quences of the conviction, which, the judge concluded, made
him ineligible for adjustment, and thus ordered Petitioner
removed to El Salvador. Petitioner timely appealed to the
BIA.

Before the BIA addressed the appeal, however, Petitioner
obtained relief from the state court: on July 16, 2004, the
1999 conviction was “expunged” pursuant to section 1203.4
of the California Penal Code. Therefore, on August 4, 2004,
Petitioner asked the BIA to remand the matter to the IJ on the
basis that the 1999 conviction was no longer considered a
“conviction” for immigration purposes because it was a first-
time, simple possession offense that had been expunged (and,
implicitly, therefore qualified for treatment under the Federal
First Offender Act).

The government opposed the motion to remand, arguing
that Petitioner’s pretrial diversion of the 1996 controlled sub-
stance charge “was the state-law equivalent of prejudgment
probation under the FFOA,” and thus that he would not have
been eligible for FFOA treatment for his 1999 conviction,
which would remain effective for immigration purposes.

The BIA sided with the government, and on May 18, 2005
denied the motion to remand because it concluded that the
expungement did not present material new evidence that
would have changed the result at the hearing below. The
BIA’s rationale was simply that “an alien whose conviction
was expunged pursuant to California Penal Code § 1203.4 has
been ‘convicted’ for immigration purposes.” The BIA also
12660 MELENDEZ v. GONZALES
adopted the IJ’s decision as to Petitioner’s ineligibility for
adjustment, and thus dismissed his appeal.

Petitioner filed this review petition on June 17, 2005, seek-
ing to overturn the BIA’s May 18, 2005 decision to deny a
remand. At the same time, he did not abandon his efforts at
the BIA itself, as on June 20, 2005, he moved for reconsidera-
tion of the remand denial. This motion was denied, however,
as the BIA cited an alternate ground for the denial of remand:
that the expungement was irrelevant because Petitioner had
already received FFOA treatment in the form of his pre-plea
diversion for the 1996 charge, and thus could not receive
FFOA treatment a second time for the 1999 conviction. Peti-
tioner has not separately appealed this decision, though the
bulk of his briefing is devoted to attacking its rationale.

III.

JURISDICTION

The Immigration and Nationality Act (“INA”) ordinarily
divests the courts of appeals of jurisdiction to review any
“final order of removal” against an alien who is removable for
having committed a controlled substance offense. 8 U.S.C.
§ 1252(a)(2)(C). The court retains jurisdiction, however, to
consider whether the jurisdictional bar applies. Lujan-
Armendariz v. INS, 222 F.3d 728, 734 (9th Cir. 2000). More-
over, the Act states that “[n]othing [herein] . . . which limits
or eliminates judicial review shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D).

Here, Petitioner raises a colorable question of law: whether
his 1999 controlled substance conviction precludes him from
seeking an adjustment of status even though it was expunged
pursuant to section 1203.4 of the California Penal Code. In
such cases, the jurisdictional inquiry collapses into the merits,
and so we may determine whether the expungement means
 MELENDEZ v. GONZALES 12661
Petitioner has not been “convicted” of a controlled substance
violation for purposes of the immigration laws. Chavez-Perez
v. Ashcroft, 386 F.3d 1284, 1286-87 (9th Cir. 2004).1

IV.

DISCUSSION

A. Standard of Review

The BIA’s denial of a motion to remand is reviewed for
abuse of discretion and will therefore be reversed only if the
BIA acted arbitrarily, irrationally, or contrary to the law. Mov-
sisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). In
assessing whether a decision is contrary to law, the BIA’s
interpretation of the immigration statutes is generally entitled
to deference, unless the interpretation is contrary to the plain
and sensible meaning of the statute. See, e.g., Almaghzar v.
Gonzales, 457 F.3d 915, 920 (9th Cir. 2006). No deference is
owed to the BIA’s interpretation of statutes that it does not
administer, however. Garcia-Lopez v. Ashcroft, 334 F.3d 840,
843 (9th Cir. 2003).

Here, the BIA’s exercise of discretion essentially turned on
a question of law: whether Petitioner’s 1999 conviction car-
ried immigration consequences even after it was expunged.
As discussed below, this determination turns on statutory
interpretation of the FFOA, which the BIA does not adminis-
1
The BIA’s denial of reconsideration is not before this panel because
Petitioner does not seek review of that order. See Martinez-Zelaya v. INS,
841 F.2d 294, 295-96 (9th Cir. 1988). Nonetheless, we address that order’s
rationale because it articulated an alternate ground for the BIA’s denial of
remand, which we ultimately conclude is correct and thus obviates any
possibility that we would remand to the BIA. See Vista Hill Found., Inc.
v. Heckler, 767 F.2d 556, 566 n.9 (9th Cir. 1985) (no remand to agency
required when to do so would be futile); cf., e.g., Mattis v. INS, 774 F.2d
965, 968 (9th Cir. 1985) (we will not affirm the BIA on a basis it did not
articulate).
12662 MELENDEZ v. GONZALES
ter, as well as equal protection principles. Accordingly, the
legal inquiry will proceed without any particular deference to
the BIA’s analysis.

B. Statutory Framework

[1] Under section 245 of the INA, “[a]n alien physically
present in the United States who entered the United States
without inspection” and who is the beneficiary of an I-130
Form “may apply to the Attorney General for the adjustment
of his or her status to that of an alien lawfully admitted for
permanent residence.” 8 U.S.C. § 1255(i); United States v.
Hermoso-Garcia, 413 F.3d 1085, 1087 n.1 (9th Cir. 2005).
However, approval of the I-130 petition does not automati-
cally entitle the alien to adjustment of status. INS v. Chadha,
462 U.S. 919, 937 (1983) (citing Menezes v. INS, 601 F.2d
1028 (9th Cir. 1979)). As relevant here, an individual may be
barred by statute from seeking any adjustment of status on
account of his having committed a crime, including crimes
relating to a controlled substance. 8 U.S.C.
§ 1182(a)(2)(A)(i)(II); Hermoso-Garcia, 413 F.3d at 1087
n.2.

Thus, we must determine whether the BIA erred in con-
cluding that Petitioner’s 1999 controlled substance conviction
precluded him from seeking adjustment of status. This turns
on whether the 1999 conviction retained its immigration con-
sequences even after it was expunged.

C. Overview of the Federal First Offender Act and Its
Applicability to Expunged State Convictions

[2] “[A]s a general rule, an expunged conviction qualifies
as a conviction under the INA.” Ramirez-Castro v. INS, 287
F.3d 1172, 1174 (9th Cir. 2002) (citing Murillo-Espinoza v.
INS, 261 F.3d 771, 774 (9th Cir. 2001)). However, the FFOA
provides a limited exception to this rule in cases involving
 MELENDEZ v. GONZALES 12663
first-time simple possession of narcotics. The FFOA provides
in relevant part:

(a) If a person found guilty of an offense described
in section 404 of the Controlled Substances Act (21
U.S.C. 844)—

(1) has not, prior to the commission of such
offense, been convicted of violating a Federal or
State law relating to controlled substances; and

(2) has not previously been the subject of a dispo-
sition under this subsection;

the court may . . . place him on probation for a term
of not more than one year without entering a judg-
ment of conviction. At any time before the expira-
tion of the term of probation, if the person has not
violated a condition of his probation, the court may,
without entering a judgment of conviction, dismiss
the proceedings against the person and discharge
him from probation. . . .

(b) . . . A disposition under subsection (a) . . . 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 (emphasis added). Section 404 of the Con-
trolled Substances Act criminalizes only simple possession of
a controlled substance, 21 U.S.C. § 844(a); thus, the provi-
sions of the FFOA are limited to that offense. In short, 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 dis-
missed without entry of a conviction, provided that
12664 MELENDEZ v. GONZALES
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.

Lujan-Armendariz, 222 F.3d at 737.

[3] Because of equal protection and due process principles,
FFOA protections extend even to state convictions that are
expunged pursuant to state rehabilitation statutes, provided
that the conviction was for first-time conduct that could have
been prosecuted under section 404 of the Controlled Sub-
stances Act. Id. at 738 (citing Garberding v. INS, 30 F.3d
1187, 1190-91 (9th Cir. 1994)); see also In re Manrique, 21
I & N Dec. 58, 62-64 (BIA 1995) (establishing a BIA policy
that an alien whose conviction has been set aside pursuant to
a state statute will not be deported if he would have been eli-
gible for first offender treatment had he been prosecuted
under federal law); cf. Paredes-Urrestarazu v. INS, 36 F.3d
801, 811 (9th Cir. 1994) (persons found guilty of a drug
offense who could not have received the benefit of the FFOA
were not entitled to receive favorable immigration treatment,
even if they qualified for such treatment under state law).2

D. Analysis

The question here is whether the BIA relied on an errone-
ous view of the law when it held that Petitioner remained
“convicted” for immigration purposes despite the expunge-
ment of his 1999 simple possession charge under section
1203.4 of the California Penal Code. We may resolve this
issue either by determining (1) whether section 1203.4
2
Moreover, we have held that the FFOA and analogous state expunge-
ments remain relevant in immigration proceedings even after Congress
enacted a statutory definition of “conviction” for immigration purposes as
part of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996. Lujan-Armendariz, 222 F.3d at 741-43, 749-50.
 MELENDEZ v. GONZALES 12665
expungements are generally dissimilar to FFOA dispositions
such that they do not remove convictions’ immigration conse-
quences; or (2) whether, in this case, Petitioner’s 1996 partici-
pation in California’s pretrial diversion on a similar charge
constituted his one bite at FFOA-type treatment. We elect to
address the second question.

As to the impact of the pretrial diversion, Petitioner notes
that (1) diversion was granted without a plea or finding of
guilt, which meant he was never “convicted” on the 1996
charge; and (2) as a result, the pretrial diversion does not con-
stitute an FFOA disposition that precludes FFOA treatment
for the 1999 expungement. Petitioner is correct on both
grounds. The 1996 charge was dismissed following his suc-
cessful participation in California’s pretrial diversion pro-
gram, which at the time did not require a plea of guilty prior
to the suspension of criminal proceedings pending completion
of a county run or certified drug education, treatment, or reha-
bilitation program. See CAL. PENAL CODE §§ 1000-1000.3
(West 1996).3 Moreover, if Petitioner’s 1999 conviction were
a federal offense, it could still qualify for FFOA treatment
even given the 1996 charge, because simple possession con-
victions are eligible for FFOA treatment if the recipient had
not previously been “convicted” of a controlled substance vio-
lation and had not previously received FFOA treatment. 18
U.S.C. § 3607(a); see also 8 U.S.C. § 1101(a)(48)(A) (defin-
ing “conviction” for purposes of the immigration laws).

But because Petitioner’s 1999 conviction was under state
law, he cannot prevail merely by parsing the language of the
FFOA, which by its terms does not apply to state convictions.
3
California changed its procedure effective January 1, 1997. 1996 Cal.
Stat. 1132 (S.B. 1369), § 3. Under the revised diversion procedure, Cali-
fornia required a plea of guilty before diversion would be granted. See
CAL. PENAL CODE § 1000.1(a)(3) (West 1997) (requiring the prosecuting
attorney to notify the defendant that “in lieu of trial, the court may grant
deferred entry of judgment . . . provided that the defendant pleads guilty”
(emphasis added)).
12666 MELENDEZ v. GONZALES
Rather, the question is whether equal protection principles
demand that the BIA have treated his 1999 expungement as
an FFOA disposition even though he had previously received
leniency in the form of the 1996 pretrial diversion.

[4] We are persuaded they do not. As this court has previ-
ously held, participation in California’s pretrial diversion pro-
gram is not irrelevant for immigration purposes. Paredes-
Urrestarazu, 36 F.3d at 810-11 (holding that even after an
alien receives pretrial diversion under California’s pre-1997
scheme, the BIA may consider the underlying arrest in con-
sidering whether to grant discretionary relief from deporta-
tion). Moreover, because it is a federal actor, the BIA need
only have a rational basis for classifications based on alien-
age. Mathews v. Diaz, 426 U.S. 67, 83 (1976). In Garberding,
we held it was irrational to deny FFOA treatment to a first-
time simple possession offender who received expungement
under a state scheme simply because the state scheme would
also have allowed expungement for many offenders ineligible
for FFOA treatment. 30 F.3d at 1190-91. Because the particu-
lar petitioner in Garberding would have been eligible for
FFOA treatment, it was irrational to deny her relief simply
because more serious offenders could also have received the
same expungement. Garberding, therefore, requires distinc-
tions to be based on conduct, not on the procedural niceties
of the expungement scheme. See id.; Lujan-Armendariz, 222
F.3d at 741.

[5] But Garberding is easily distinguished here. Even with-
out a guilty plea on the 1996 charge, Petitioner simply was
not similarly situated to a first-time offender. Before the 1999
conviction, he had been arrested for a controlled substance
violation, which apparently had enough of a factual basis for
him to submit to diversion under the California scheme.
Indeed, Petitioner does not contend that the charge was base-
less. Although Petitioner argues he would have been moti-
vated to accept diversion even if he had not committed the
underlying offense, we think it remains rational to believe that
 MELENDEZ v. GONZALES 12667
someone who was arrested for drug possession, charged, and
then sent to a diversion program in lieu of prosecution had in
fact committed a drug offense. Indeed, diversion could not
have resulted if the state judge had found it would not “bene-
fit” Petitioner, CAL. PENAL CODE § 1000.2 (West 1996), which
further confirms that the 1996 charge had a factual basis.
Moreover, even the diversion program itself was something of
a one-bite affair, as Petitioner would have been ineligible had
he received diversion on another charge within the preceding
five years. Id. § 1000(a)(5).

[6] Therefore, we hold that equal protection principles did
not require the BIA to ignore the 1996 diversion program.
Because Petitioner was allowed to avoid criminal conse-
quences for the 1996 charge and the 1999 conviction, the BIA
properly could regard him as someone who had received two
bites at the ameliorative apple, instead of the one bite allowed
by the FFOA. The distinction made by the BIA here is not
based on procedural quirks in a state rehabilitative scheme,
but rather on the conduct of the alien himself. Equal protec-
tion requires no more.4

[7] As a result, even without a guilty plea on the 1996
charge, the BIA properly concluded that Petitioner’s partici-
pation in pretrial diversion means that his subsequent convic-
tion in 1999 retained immigration consequences even after it
was expunged, thereby barring him from adjustment of status.
4
We recognize that language in Lujan-Armendariz could be read to
compel a contrary result. There, we stated that “persons whose offenses
would qualify for treatment under the [FFOA] but who are convicted and
have their convictions expunged under state laws may not be removed on
account of those offenses.” 222 F.3d at 732. In Lujan-Armendariz, how-
ever, both petitioners had committed only one offense, and the question
presented was simply whether the rule in Garberding survived even after
Congress enacted a statutory definition of “conviction” as part of the Ille-
gal Immigration Reform and Immigrant Responsibility Act of 1996. Id. at
732-33. Because we had no occasion to consider the effect of offenses
prior to the conviction that was eventually expunged, Lujan-Armendariz
does not control the result here.
12668 MELENDEZ v. GONZALES
V.

CONCLUSION

For the foregoing reasons, the petition is DISMISSED.