FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LOPEZ-VASQUEZ, Nos. 08-71950
Petitioner, 08-74867
v. Agency No.
A076-625-020
ERIC H. HOLDER, JR.,*
Attorney General,
Respondent. OPINION
On Petitions for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 8, 2012—Pasadena, California
Filed February 1, 2013
Before: Myron H. Bright,** Susan P. Graber, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Judge Bright
*
Eric H. Holder, Jr., is substituted for his predecessor Michael B.
Mukasey, as Attorney General. Fed. R.App. P. 43(c)(2).
**
The Honorable M yron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
2 LOPEZ-VASQUEZ V . HOLDER
SUMMARY***
Immigration
The panel denied Jose Lopez-Vasquez’s petition for
review of the Board of Immigration Appeals’ decision
denying adjustment of status on account of his felony
conviction for possession of marijuana for sale, in violation
of California Health & Safety Code § 11359.
The panel held that Lopez-Vasquez failed to carry his
burden to prove that he was entitled to relief under the
Federal First Offender Act, despite the fact that the state court
set aside his felony conviction and deemed it to be a
misdemeanor. The panel held that the record was
inconclusive as to whether the state court actually changed
Lopez-Vasquez’s CHS § 11359 conviction to misdemeanor
simple possession of marijuana, in violation of CHS § 11357,
because CHS § 11359 is a “straight felony” that cannot be
designated as a misdemeanor, and the records do not reflect
a change to CHS § 11357. The panel also denied Lopez-
Vasquez’s petition for review from the BIA’s denial of his
motion to reopen.
Concurring, Judge Bright would instruct the BIA to
permit reopening. Judge Bright agreed that the record is
unclear and that Lopez-Vasquez must do more than prove
that the record is inconclusive, but he would give Lopez-
Vasquez another chance to establish that the state court
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LOPEZ-VASQUEZ V . HOLDER 3
changed his offense of conviction to simple possession in
violation of CHS § 11357.
COUNSEL
Audra R. Behné, Law Offices of Audra. R. Behné, Encino,
California, for the Petitioner.
Brianne Whelan Cohen and Joseph A. O’Connell (argued),
U.S. Department of Justice, Office of Immigration Litigation,
Washington, D.C., for Respondent.
OPINION
IKUTA, Circuit Judge:
Jose Lopez-Vasquez petitions for review of the Board of
Immigration Appeals’ (BIA) denial of his application for
adjustment of status and its denial of his motion to reopen
based on new evidence. The BIA concluded that Lopez-
Vasquez was ineligible for adjustment of status because of a
1997 conviction for possession of marijuana for sale in
violation of California Health & Safety Code section 11359.
Lopez-Vasquez contends that the 1997 conviction was
actually for simple possession of marijuana in violation of
Health & Safety Code section 11357 and that, as a result, he
is eligible for relief under Lujan-Armendariz v. INS, 222 F.3d
728, 749 (9th Cir. 2000), overruled prospectively by Nunez-
Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc).
We deny both petitions.
4 LOPEZ-VASQUEZ V . HOLDER
I
In order to understand Lopez-Vasquez’s arguments, it is
first necessary to understand the interplay between the
applicable statutory framework and our case law.
A
The Attorney General may adjust the status of an alien if
“the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence.”
8 U.S.C. § 1255(i)(2)(A). The alien has the “‘burden of
establishing . . . clearly and beyond doubt’ that he is ‘entitled
to be admitted and is not inadmissible under [8 U.S.C. §]
1182.’” Valadez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th
Cir. 2010) (quoting 8 U.S.C. § 1229a(c)(2)(A)); see also
Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008).1
Under § 1182, an alien who has been convicted of an
offense “relating to a controlled substance” is inadmissible.
8 U.S.C. § 1182(a)(2)(i)(II). Because the burden of proving
1
An alien may be charged with being removable if that alien has not
been admitted to the United States and is “inadmissible.” See 8 U.S.C.
§ 1229a(e)(2)(A). An alien charged as being removable for this reason
may contest that charge by proving admissibility “clearly and beyond
doubt.” § 1229a(c)(2)(A). By contrast, aliens who are seeking relief from
removal by applying for adjustment of status must prove admissibility “by
a preponderance of the evidence.” See 8 C.F.R. § 1240.8(d). Because
Lopez-Vasquez is seeking relief from removal, the relevant standard
should be the preponderance standard set forth in § 1240.8(d). But,
because Valadez-Munoz and Blanco held that the “clearly and beyond
doubt” burden of proof is applicable in this context, we are bound to apply
this precedent.
LOPEZ-VASQUEZ V . HOLDER 5
admissibility is on the alien, Valadez-Munoz, 623 F.3d at
1308, an alien with a criminal conviction must prove that the
conviction does not relate to a controlled substance or
otherwise render the alien inadmissible under § 1182. Cf.
Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012) (en banc).
An alien cannot carry this burden “by merely establishing that
the relevant record of conviction is inconclusive as to
whether” the conviction was for an offense that would make
the alien inadmissible. Id. at 979–80.
B
An alien’s inadmissibility under § 1182 due to a drug-
related conviction is generally not affected by the later
expungement of the conviction. Murillo-Espinoza v. INS,
261 F.3d 771, 774 (9th Cir. 2001); see 8 U.S.C.
§ 1101(a)(48)(A). The Federal First Offender Act (FFOA)
created a limited exception to this rule for federal defendants.
See 18 U.S.C. § 3607. Under the FFOA, a federal court can
put first-time drug offenders who are convicted of simple
possession under 21 U.S.C. § 844 on pre-judgment probation.
§ 3607(a). If the defendants successfully complete probation,
the court must discharge them “without entering a judgment
of conviction.” Id. An FFOA disposition “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,” § 3607(b), including immigration
proceedings. See Nunez-Reyes, 646 F.3d at 688.
In Lujan-Armendariz, we extended the immigration
benefits of the FFOA to individuals with expunged state court
convictions for first-time simple possession drug offenses
where the offenders “would have been eligible for relief
under the [FFOA] had their offenses been prosecuted as
6 LOPEZ-VASQUEZ V . HOLDER
federal crimes.” Lujan-Armendariz, 222 F.3d at 749. We
later extended Lujan-Armendariz to cover expunged state
court convictions where the drug offense was “a less serious
offense than simple possession of a controlled substance,”
such as a conviction for possession of drug paraphernalia.
Ramirez-Altamirano v. Holder, 563 F.3d 800, 808 (9th Cir.
2009) (internal quotation marks omitted), overruled
prospectively by Nunez-Reyes, 646 F.3d at 694.
Recently, Nunez-Reyes overruled Lujan-Armendariz and
Ramirez-Altamirano and held that the FFOA applies to only
federal convictions. Nunez-Reyes, 646 F.3d at 690. But
Nunez-Reyes applies only prospectively, so we must still
evaluate convictions entered by a state court before July 14,
2011, under Lujan-Armendariz’s framework. Id. at 693–94.
C
Lopez-Vasquez’s claim that he is eligible for adjustment
of status hinges on the differences between California Health
& Safety Code sections 11357 and 11359.
Section 11357 criminalizes the possession of marijuana
or concentrated cannabis as well as the possession of
marijuana “upon the grounds of, or within, any school.” Cal.
Health & Safety Code § 11357 (West 1997). At the time of
Lopez-Vasquez’s conviction, a violation of section 11357
was punishable by imprisonment in a state prison,
imprisonment in county jail, or a fine, depending on the
specific circumstances of the violation. Id. Under California
law, a statute that can result in this range of punishments is
referred to as a “wobbler” statute because it provides for
either a misdemeanor or a felony conviction. See
Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 (9th Cir. 2003)
LOPEZ-VASQUEZ V . HOLDER 7
(citing Cal. Penal Code § 17(b)). “Whether a ‘wobbler’ is
determined to be a misdemeanor or a felony is controlled by
Cal. Penal Code § 17(b) . . . .” Garcia-Lopez, 334 F.3d at
844. As relevant to this case, “[a] wobbler offense ‘is a
misdemeanor for all purposes . . . [w]hen the court grants
probation to a defendant without imposition of sentence and
at the time of granting probation, or on application . . .
thereafter, the court declares the offense to be a
misdemeanor.’” Id. at 845 (alterations in original) (quoting
Cal. Penal Code § 17(b)(3)).
Lopez-Vasquez asserts that a section 11357 conviction is
a “simple possession” drug conviction and that he would have
been eligible for relief under the FFOA had it been
prosecuted as a federal crime. We have not previously
addressed this question, and we need not reach it today in
light of our conclusion, see infra Part III, that the BIA did not
err in concluding that Lopez-Vasquez was not convicted of
this offense.
Section 11359 criminalizes the possession of marijuana
for sale. Cal. Health & Safety Code § 11359 (West 1997)
(“Every person who possesses for sale any marijuana . . .
shall be punished by imprisonment in the state prison.”).
Because section 11359 prescribes “imprisonment in the state
prison” as the only available punishment, it is a felony. Cal.
Penal Code. § 17(a). In addition, California Penal Code
section 17(b) does not apply and, as a result, a court may not
designate a section 11359 conviction as a misdemeanor.
People v. Mauch, 163 Cal. App. 4th 669, 674 (Ct. App. 2008)
(holding that a crime punishable only by imprisonment in the
state prison is a “straight felony” that cannot be designated as
a misdemeanor (internal quotation marks omitted)).
8 LOPEZ-VASQUEZ V . HOLDER
If Lopez-Vasquez’s drug conviction was for possession of
marijuana for sale in violation of section 11359, he would be
ineligible for relief under our pre-Nunez-Reyes framework
because, as he concedes, possession for sale is not a first-time
simple possession offense that would qualify for treatment
under the FFOA. Nor is it a less serious offense than simple
possession of a controlled substance, and so it would not be
treated as if it were an FFOA-eligible offense under our pre-
Nunez-Reyes case law. Cf. Ramirez-Altamirano, 563 F.3d at
808.
II
A
Mindful of this framework, we now turn to the facts of
this case. Lopez-Vasquez, a citizen of El Salvador, entered
the United States illegally in 1987. On May 29, 1997, Lopez-
Vasquez pleaded no contest to, and was convicted of,
possession of marijuana for sale in violation of Health &
Safety Code section 11359. The state court’s minute order
states: “COUNT 01: 11359 H&S FEL - POSS
MARIJUANA/HASH FOR SALE,” and “COUNT (01):
DISPOSITION: CONVICTED.” The state court suspended
the imposition of a sentence, placed Lopez-Vasquez on
probation and, as a condition of probation, required him to
serve 180 days in county jail.
Over a year later, on July 13, 1998, the court held a status
conference in Lopez-Vasquez’s case. At the status
conference, Lopez-Vasquez sought a change in his charge
“for immigration purposes.” The court did not rule on this
request and, instead, ordered the probation department “to
prepare a report pursuant to termination and dismissal of the
LOPEZ-VASQUEZ V . HOLDER 9
defendant’s probation.” Like the minute order for the
previous hearing, the minute order for the status conference
states: “COUNT 01: 11359 H&S FEL - POSS
MARIJUANA/HASH FOR SALE.”
In compliance with the court’s order, a probation officer
met with Lopez-Vasquez and prepared a report. The report
states that Lopez-Vasquez was convicted of “HS11359 POSS
MARIJUANA FOR SALE.” It concludes that Lopez-
Vasquez appeared to be “fully in compliance with the terms
and conditions of his probation” and states that “the court is
respectfully advised to grant him his heart’s desires as still
keeping him on probation will be harmful to his immigrant
status.”
Based on this favorable report, on August 10, 1998, the
court deemed Lopez-Vasquez’s conviction to be a
misdemeanor, terminated probation, and set aside the
conviction under section 1203.4 of the California Penal
Code.2 The state court’s records do not state that the court
changed the offense of conviction to simple possession of
marijuana. In fact, like the previous minute orders, the
minute order for the August 1998 hearing contains the
following notation: “COUNT 01: 11359 H&S FEL - POSS
MARIJUANA/HASH FOR SALE.” The probation
department’s records also reflect that Lopez-Vasquez’s
conviction was deemed a misdemeanor, that probation was
terminated, and that the conviction was set aside. Like the
state court’s minutes, the probation department’s records do
2
The minute order states: “PURSUANT TO SECTION 17 PENAL
CODE, OFFENSE IS DEEM ED TO BE A MISDEM EANOR.
PROBATION IS ORDERED TERMINATED . . . . PLEA OF GUILTY
OR CONVICTION IS SET ASIDE.”
10 LOPEZ-VASQUEZ V . HOLDER
not indicate that the court changed Lopez-Vasquez’s crime of
conviction to simple possession.
B
After the government initiated removal proceedings in
2004, Lopez-Vasquez conceded that he was removable but
applied for adjustment of status based on his marriage to a
United States citizen. The immigration judge (IJ) concluded
that Lopez-Vasquez was ineligible for adjustment of status
because of the 1997 drug conviction. In reaching this
conclusion, the IJ addressed Lopez-Vasquez’s argument that
his conviction was eligible for FFOA treatment under Lujan-
Armendariz. Lopez-Vasquez asserted that, when the state
court designated his conviction as a misdemeanor, it also
changed the underlying offense from possession of marijuana
for sale in violation of section 11359 to simple possession of
marijuana in violation of section 11357. Because only
section 11357, and not section 11359, can be charged as a
misdemeanor, Lopez-Vasquez reasoned that the court was
able to reduce his conviction to a misdemeanor only because
it also changed his offense to simple possession.
The IJ rejected this argument and determined that it was
not clear from the record why the state court reduced the
conviction from a felony to a misdemeanor. He reasoned that
either the state court erred in reducing Lopez-Vasquez’s
conviction to a misdemeanor under section 11359 or it erred
in specifying the section under which the reduction was
entered. In either case, the IJ concluded, he could not “go
behind the conviction.”
Lopez-Vasquez appealed to the BIA, which dismissed his
appeal in a reasoned opinion on April 18, 2008. The BIA
LOPEZ-VASQUEZ V . HOLDER 11
noted that the burden was on Lopez-Vasquez to establish
eligibility for relief. And it concluded that he had “not
submitted any court order, record, statement from the district
attorney prosecuting his case, or other direct evidence
establishing that he was actually convicted of simple
possession of marijuana.” The BIA declined to infer that the
state court had necessarily changed the conviction to simple
possession, “particularly given the intricacies of the
substantive state criminal laws and procedures at issue here.”
Subsequently, Lopez-Vasquez filed a motion to reopen in
order to present previously unavailable evidence in support of
his claim. Specifically, he submitted the transcript of the July
13, 1998, state court status conference, which states, in
relevant part:
The Court: Why is this on calendar?
[Defense counsel]: We are requesting this be
reduced to a misdemeanor. I
believe based on the charges
that that may be a factual
impossibility, but I have
spoken —
The Court: Legal, not factual.
[Defense counsel]: — to [the prosecutor] about it
and he’s indicating that he
would like a supplemental
report based on a letter and
various documentations, and
he may consider changing the
charge so that it can be
12 LOPEZ-VASQUEZ V . HOLDER
reduced to a misdemeanor for
immigration purposes. So I
would ask that the matter be
put over for a supplemental
report.
The court did not make any further statement in response
to the defense counsel’s request, but merely continued the
case to a later date and ordered the probation officer to submit
a supplemental report.
The BIA accepted that this transcript was not previously
available but denied the motion to reopen because it found
that Lopez-Vasquez had failed to demonstrate prima facie
eligibility for adjustment of status. The BIA noted that
“[t]here is no express finding or explicit indication
whatsoever in any of the material submitted [including the
new evidence] that the respondent was convicted of simple
possession of marijuana, as he contends.”
III
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review the BIA’s determination that Lopez-Vasquez’s drug
conviction makes him ineligible for adjustment of status, see
Ramirez-Altamirano, 563 F.3d at 804, overruled on other
grounds by Nunez-Reyes, 646 F.3d at 690, and we have
jurisdiction under § 1252(a) to review the BIA’s denial of a
motion to reopen. Meza-Vallejos v. Holder, 669 F.3d 920,
923 (9th Cir. 2012).
We review questions of law de novo and factual findings
for substantial evidence. Brezilien v. Holder, 569 F.3d 403,
411 (9th Cir. 2009). Thus, “the administrative findings of
LOPEZ-VASQUEZ V . HOLDER 13
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” § 1252(b)(4)(B).
We review the BIA’s denial of a motion to reopen for abuse
of discretion, and may grant relief only if the BIA acted
“arbitrarily, irrationally, or contrary to law.” Singh v. INS,
213 F.3d 1050, 1052 (9th Cir. 2000) (internal quotation marks
omitted); see also United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc) (holding that, under our abuse
of discretion standard, we may grant relief only if the court
made a legal error, or its application of law to facts was
“illogical, implausible, or without support in inferences that
may be drawn from the record”).
A
To establish that he is eligible for adjustment of status,
Lopez-Vasquez must prove “clearly and beyond doubt” that
he does not have a drug conviction that renders him
inadmissible under § 1182. Cf. Young, 697 F.3d at 989
(“Because the burden of proof rests on the alien, the alien
must establish that he or she was not convicted of such a
crime.”). He can meet that burden only by establishing that
his 1997 conviction was for a first-time simple possession
drug crime, that the offense was expunged by the state court,
and that he would have been eligible for relief under the
FFOA had his offense been prosecuted as a federal crime.
See Lujan-Armendariz, 222 F.3d at 748–49.
Substantial evidence supports the BIA’s conclusion that
Lopez-Vasquez was convicted of possession of marijuana for
sale under section 11359, which does not qualify for relief
under Lujan-Armendariz. The state court’s minute orders all
show that Lopez-Vasquez was convicted of possession of
marijuana for sale in violation of Health & Safety Code
14 LOPEZ-VASQUEZ V . HOLDER
section 11359. The probation office’s records also reflect that
the 1997 conviction was for possession of marijuana for sale.
As he did before the BIA, Lopez-Vasquez again argues
that the state court necessarily changed his conviction to a
violation of section 11357, which he contends criminalizes
only simple possession, when it designated his conviction as
a misdemeanor. According to Lopez-Vasquez, because
section 11359 is a “straight felony,” the state court could not
have designated his conviction as a misdemeanor without also
changing his conviction to a violation of section 11357.
We disagree. Nothing in the state court’s records shows
that the court changed Lopez-Vasquez’s underlying
conviction to a violation of section 11357.3 In fact, there is
no reference whatsoever to section 11357 in any of the
records submitted by Lopez-Vasquez. Thus, to accept Lopez-
Vasquez’s position, we would have to speculate that the state
court had the authority to change the charges brought by the
prosecutor, changed Lopez-Vasquez’s conviction without
mentioning that fact and that, in the process of changing the
conviction, selected section 11357 as the new charge. We
decline to adopt this chain of speculations. A more likely
explanation of the inconsistency between the section 11359
conviction and the misdemeanor designation, is that the state
3
Nor does Lopez-Vasquez cite any support for the proposition that the
state court even had the authority to amend the charge to which he pleaded
guilty, at least not without the prosecutor’s consent. Cf. People v. Orin,
13 Cal. 3d 937, 942 (1975) (stating that the prosecutor’s consent is
necessary to secure “a plea to a lesser offense than that charged, either in
degree or kind” (citations omitted)); People v. Superior Court, 59 Cal.
App. 3d 270, 276 (Ct. App. 1976) (noting the “exclusive authority of the
executive with respect to charging of crimes and negotiating the
disposition of charges”).
LOPEZ-VASQUEZ V . HOLDER 15
court simply erred under state law in designating Lopez-
Vasquez’s conviction as a misdemeanor. Such errors by state
trial courts are not unknown. See, e.g., Mauch, 163 Cal. App.
4th at 674 (holding that the trial court erred in designating as
a misdemeanor a “straight felony” conviction for cultivating
marijuana in violation of Cal. Health & Safety Code § 11358
(internal quotation marks omitted)); People v. Superior
Court, 29 Cal. App. 4th 323, 328–30 (Ct. App. 1994)
(holding that the magistrate judge erred in reducing to a
misdemeanor a “straight felony” charge for false
imprisonment).
At best, Lopez-Vasquez could establish that the record is
inconclusive as to what the state court actually did. But
because Lopez-Vasquez has the burden to show admissibility,
a reasonable adjudicator would not be compelled to conclude
that the state court had changed his conviction to a violation
of section 11357. See Young, 697 F.3d at 989 (holding in the
cancellation of removal context that “an inconclusive record
. . . is insufficient to satisfy the alien’s burden of proof”).4
Indeed, we recently declined to make a similar inference
in United States v. Lee, — F.3d —, No. 10-10403, 2012 WL
6720593 (9th Cir. Dec. 28, 2012). In Lee, the district court
sentenced the defendant as a career offender based, in part, on
a state court conviction for selling or offering to sell cocaine
base. Lee, No. 10-10403, slip op. at 4, 9. Under California
law, a defendant convicted of this offense may not receive
probation unless the state court makes certain findings on the
4
W e would reach this conclusion even if Lopez-Vasquez were subject
to the lower “preponderance of the evidence” burden imposed by 8 C.F.R.
§ 1240.8(d) instead of the “clearly and beyond doubt” burden specified by
Valadez-Munoz and Blanco.
16 LOPEZ-VASQUEZ V . HOLDER
record. Id. at 10–11 (citing Cal. Health & Safety Code
§ 1203.073(a)). The defendant argued that, because the state
court did not make any such findings and because he received
probation, he could not have been convicted of selling or
offering to sell cocaine base. Id. at 11. We rejected this
argument, even though the burden of proof was on the
government, because the state court records documented only
that the defendant was convicted of selling or offering to sell
cocaine base. Id. at 11–12. As we explained, the state court’s
failure to comply with the statutory requirement of making
findings on the record “was more likely a procedural
oversight during sentencing rather than” proof that the
defendant had been convicted of a crime that was different
from what was documented in the court records. Id. at 12.
Similarly in this case, the state court’s decision to
characterize the conviction as a misdemeanor was more likely
due to an oversight or error on the state court’s part, rather
than proof that the state court changed Lopez-Vasquez’s
crime of conviction. Because Lopez-Vasquez has the burden
to show that he was not convicted under section 11359, any
such ambiguity in the state court’s decision merely makes the
record inconclusive and does not carry his burden of proof.
See Young, 697 F.3d at 989.
B
We also conclude that Lopez-Vasquez has waived his
challenge to the BIA’s denial of his motion to reopen by
failing to argue it in his brief. See Koerner v. Grigas, 328
F.3d 1039, 1048 (9th Cir. 2003) (holding that this court will
not ordinarily consider matters “that are not specifically and
distinctly argued in appellant’s opening brief” (internal
quotation marks omitted)). Beyond explaining that this court
has jurisdiction to review the BIA’s denial of a motion to
LOPEZ-VASQUEZ V . HOLDER 17
reopen and setting forth the new evidence provided to the
BIA, Lopez-Vasquez’s brief does not raise any arguments
directed to this issue.
Even if we were to reach the merits of his challenge, we
would conclude that the BIA did not abuse its discretion in
denying the motion to reopen. The BIA is entitled to deny a
motion to reopen where the applicant fails to demonstrate
prima facie eligibility for the underlying relief. Garcia v.
Holder, 621 F.3d 906, 912 (9th Cir. 2010). To demonstrate
prima facie eligibility the alien must show “a reasonable
likelihood that the statutory requirements for relief have been
satisfied.” Id. (internal quotation marks omitted). In this
case, Lopez-Vasquez’s motion to reopen was based on the
allegedly newly-discovered transcript of the July 13, 1998,
state court status conference. This evidence does not
establish a reasonable likelihood that Lopez-Vasquez is
eligible for adjustment of status. Even reading the transcript
most favorably to Lopez-Vasquez, the transcript suggests
only that the state court was aware that reducing his
conviction under section 11359 to a misdemeanor was a legal
impossibility. But it does not demonstrate that the state court
actually changed the underlying offense.5
5
W e disagree with the concurrence’s suggestion that we should instruct
the BIA to reopen this case to allow Lopez-Vasquez “the opportunity to
attempt to produce” new evidence from California officials. Because the
BIA did not err in denying Lopez-Vasquez’s first motion to reopen, we
lack the authority to reverse its denial. Nor could we remand this case to
the BIA to permit Lopez-Vasquez to file a second motion to reopen.
Because “aliens are entitled to file only one motion to reopen,” Lopez
Vasquez “is now barred from filing a second motion to reopen.” Young
Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (citing 8 C.F.R.
§ 1003.2(c)(2)). Moreover, Lopez-Vasquez has not identified any
evidence that would meet an alien’s “heavy burden of proving that, if
18 LOPEZ-VASQUEZ V . HOLDER
IV
Lopez-Vasquez failed to establish that the state court
changed his 1997 drug conviction from possession of
marijuana for sale under section 11359 to simple possession
of marijuana under section 11357. Because Lopez-Vasquez
remains inadmissible under § 1182 notwithstanding the state
court’s expungement of his section 11359 offense, he is
ineligible for adjustment of status.
PETITION FOR REVIEW DENIED.
BRIGHT, Circuit Judge, concurring:
I agree that the record is unclear as to whether the state
court changed Lopez-Vasquez’s offense of conviction to a
violation of section 11357, a “wobbler” which could have
been deemed a misdemeanor. I also agree that Lopez-
Vasquez must do more than prove that the record is
inconclusive. But because the record is incomplete and
unclear, I believe that the proper outcome for this case is to
instruct the BIA to permit the reopening of the case before the
Immigration Judge. This would allow Lopez-Vasquez the
opportunity to attempt to produce evidence from California
officials showing that the state court changed Lopez-
Vasquez’s offense of conviction to simple possession of
marijuana under section 11357.
proceedings were reopened, the new evidence would likely change the
result in the case.” Id. (internal quotation marks omitted).
LOPEZ-VASQUEZ V . HOLDER 19
Lopez-Vasquez is not entitled to relief here because he
cannot satisfy the burden of proof; he can prove no more than
an inconclusive record. Yet it seems unfair to deny Lopez-
Vasquez the possibility of relief when there are some facts in
the record to support his position. For example, at the July
13, 1998 state court status conference, the court
acknowledged that simply reducing Lopez-Vasquez’s section
11359 conviction to a misdemeanor was a “legal
impossibility,” thereby indicating an awareness that a
conviction under section 11359 could not statutorily be
deemed a misdemeanor. But the court later appeared to do
exactly what it stated it could not—reduced the section 11359
conviction to a misdemeanor. Also, the transcript of the July
13, 1998 status conference indicates that the prosecutor was
considering changing Lopez-Vasquez’s offense of conviction.
This is notable because under California law, the state court
could have changed Lopez-Vasquez’s offense of conviction
to section 11357 with the consent of the prosecutor.
It is true that taking these facts to indicate that Lopez-
Vasquez’s offense of conviction was changed to section
11357 would require us to speculate that the state court took
action that is not disclosed in the record. But even the
majority’s “most likely explanation” for the state court’s
action requires some speculation—that the state court
knowingly erred by doing something it acknowledged on the
record it could not do.
I believe the state court was trying to help Lopez-Vasquez
with his immigration status by reducing his conviction to a
misdemeanor. The intentions of the state court warrant
consideration and perhaps those intentions could be the
subject of proof on a reopening of the record.
20 LOPEZ-VASQUEZ V . HOLDER
It is disappointing that none of the actors in this case took
steps to make the record clear. We should give Lopez-
Vasquez another chance to establish that the state court did in
fact change his offense of conviction to simple possession of
marijuana in violation of section 11357.