[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13275 September 10, 2004
________________________ THOMAS K. KAHN
CLERK
Agency No. A76-231-987
FIDENCIO RESENDIZ-ALCARAZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
John Ashcroft,
Respondent.
________________________
Petition for Review of an Order
of the Board of Immigration Appeals
_________________________
(September 10, 2004)
Before BLACK and MARCUS, Circuit Judges, and SMITH*, District Judge.
BLACK, Circuit Judge:
*
Honorable Fern M. Smith, United States District Judge for the Northern District of
California, sitting by designation.
Petitioner Fidencio Resendiz-Alcaraz, an alien present in the United States
without being admitted or paroled, was convicted of a controlled substance
offense in state court. The conviction was expunged after Petitioner served one
year of probation. Subsequently, the Immigration and Naturalization Service
(INS) initiated removal proceedings against Petitioner, which resulted in an order
of removal that was affirmed by the Board of Immigration Appeals (BIA).
Petitioner now asks this Court to review the removal order, contending he is
entitled to cancellation of removal because his state court conviction was
expunged. We conclude the state conviction is indeed a “conviction” for
immigration purposes and, therefore, 8 U.S.C. § 1252(a)(2)(C) deprives us of
subject matter jurisdiction over the petition. Accordingly, we affirm the decision
of the BIA.
I. FACTUAL BACKGROUND
Petitioner is a citizen of Mexico who entered the United States without
inspection in 1984. On July 3, 1994, he was detained by the Pike County,
Missouri, Sheriff’s Department for driving with a suspended driver’s license and
possession of less than 35 grams of marijuana. He pled guilty to the possession
charge, a class A misdemeanor under Missouri law. The Pike County Circuit
Court entered a suspended sentence for one year unsupervised probation. After a
2
year, the court entered an order to close the record pursuant to Mo. Rev. Stat.
§ 610.105, expunging the conviction.
On July 13, 2001, the INS filed a Notice to Appear (NTA), charging
Petitioner as being subject to removal from the United States pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted
or paroled, and § 1182(a)(2)(A)(i)(II), as an alien convicted of a controlled
substance violation.1 At the removal hearing, Petitioner admitted the allegations
contained in the NTA and the immigration judge sustained the charges of removal.
Petitioner then submitted an application for cancellation of removal pursuant to 8
U.S.C. § 1229b(b).
Under § 1229b(b), an alien may avoid removal from the United States and
adjust his status to that of a lawful permanent resident (LPR) if he: (1) had
continuous physical presence in the United States for ten years; (2) is of good
moral character; (3) has not been convicted of an offense under 8 U.S.C.
§§ 1182(a)(2), 1227(a)(2), or 1227(a)(3); and (4) shows that he or his citizen or
1
The record reveals that Petitioner pled guilty in 1995 to carrying a concealed firearm in
violation of Florida statute. The Dade County Circuit Court ordered that adjudication of guilt be
withheld and placed Petitioner on probation for one year. The INS did not seek removal based
on the concealed firearm conviction.
3
LPR spouse, parent, or child would suffer “exceptional and extremely unusual
hardship.” 8 U.S.C. § 1229b(b)(1).
The INS moved to pretermit Petitioner’s application, arguing Petitioner was
ineligible for cancellation of removal because his Missouri conviction was for an
offense under 8 U.S.C. § 1182(a)(2). On November 27, 2001, the immigration
judge granted the agency’s motion to pretermit. Petitioner then filed a motion for
reconsideration and a motion to suppress his admission of removability based on
the state conviction. The immigration judge granted the motion to suppress, but
denied the motion for reconsideration based on the BIA’s decision in In re
Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), order vacated sub nom. Lujan-
Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), which held that an expunged
state conviction is treated as a “conviction” for immigration purposes under 8
U.S.C. § 1101(a)(48)(A). Id. at 521. The BIA affirmed the immigration judge’s
decision without opinion on May 30, 2003. This petition followed.
II. DISCUSSION
We first address our jurisdiction to consider the merits of the petition. We
then address Petitioner’s constitutional arguments.
4
A. Jurisdiction
Before we can proceed to the merits of the petition, we must first consider
whether we have subject matter jurisdiction to hear the petition at all. We review
subject matter jurisdiction de novo. Garcia v. Attorney Gen., 329 F.3d 1217, 1220
(11th Cir. 2003).
Our jurisdiction to review final orders of removal is significantly limited by
8 U.S.C. § 1252(a)(2)(C):
Notwithstanding any other provision of law, no court shall have
jurisdiction to review any final order of removal against an alien who
is removable by reason of having committed a criminal offense
covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of
this title, or any offense covered by section 1227(a)(2)(A)(ii) of this
title for which both predicate offenses are, without regard to their date
of commission, otherwise covered by section 1227(a)(2)(A)(i) of this
title.
It is well-established that this provision strips us of jurisdiction to review a final
order of removal of “(1) an alien (2) who is removable (3) because he committed a
criminal offense enumerated in the statute.” Fernandez-Bernal v. Attorney Gen.,
257 F.3d 1304, 1308 (11th Cir. 2001) (citation and internal quotation marks
omitted). One method of determining whether an alien committed a covered
offense—and the method pertinent in this case—is through the fact of conviction.
Id. at 1308–09. Of course, we retain jurisdiction to determine the underlying
5
jurisdictional facts at issue. See Galindo-Del Valle v. Attorney Gen., 213 F.3d
594, 597–98 (11th Cir. 2000).
Petitioner admits he is an alien, but disputes that he is removable because he
committed a covered offense. In his view, he did not “commit[] a criminal
offense” as specified in § 1252(a)(2)(C), as his state conviction was expunged
under a rehabilitation scheme similar to the Federal First Offender Act (FFOA), 18
U.S.C. § 3607.2
We disagree. State convictions satisfy § 1252(a)(2)(C), regardless of
whether expungement occurred. We conclude Petitioner is removable because he
committed a covered offense and, accordingly, we lack jurisdiction to review the
merits of the petition.3
2
Under § 3607, if a defendant is found guilty of 21 U.S.C. § 844 (simple possession of a
controlled substance), and the defendant is a first offender, the federal judge may:
with the consent of such person, place him on probation for a term of not more
than one year without entering a judgment of conviction. At any time before the
expiration 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. At the
expiration of the term of probation, if the person has not violated a condition of
his probation, the court shall, without entering a judgment of conviction, dismiss
the proceedings against the person and discharge him from probation.
18 U.S.C. § 3607(a). If a conviction is expunged under this provision, it “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.” Id. § 3607(b). Thus, a conviction expunged pursuant to
the FFOA is not treated as a conviction under federal law.
3
We decline to decide the jurisdictional issue based on Petitioner’s
“admission”—through his guilty plea—to committing the offense of simple possession. See
6
Some background concerning the BIA’s fluid definition of “conviction” is
useful before addressing Petitioner’s argument. Prior to enactment of the FFOA,
the BIA’s settled policy was to disregard the expungement of drug convictions.
See, e.g., Matter of A-F-, 8 I. & N. Dec. 429, 445–46 (BIA, A.G. 1959). After the
enactment of the FFOA, the BIA ruled that a first-time drug possession offense
expunged under the FFOA was not a conviction for immigration purposes. Matter
of Werk, 16 I. & N. Dec. 234, 236 (BIA 1977). This rule gradually was expanded
to aliens with state convictions similar to those covered by the FFOA.4 See In re
Manrique, 21 I. & N. Dec. 58, 64 (BIA 1995). Specifically, the BIA in Manrique
held “that an alien who has been accorded rehabilitative treatment under a state
statute will not be deported if he establishes that he would have been eligible for
federal first offender treatment under the provisions of 18 U.S.C. § 3607(a) (1988)
had he been prosecuted under federal law.” Id. Thus, under Manrique, a drug
Fernandez-Bernal, 257 F.3d at 1310 (“Fernandez-Bernal ‘is removable’ within the meaning of
§ 1252(a)(2)(C) because at his hearing before the immigration judge and at oral argument before
this Court, he admitted, through his counsel, to committing the offense of possession of
cocaine.”) (footnote omitted). Unlike Fernandez-Bernal, the immigration judge in this case
granted Petitioner’s motion to suppress his admission of removability under
§ 1182(a)(2)(A)(i)(II). Arguably, this motion extended to Petitioner’s admission of facts
supporting the charge of removal. In any event, we find § 1252(a)(2)(C) deprives us of
jurisdiction over the petition. See infra Part II(B) & (C).
4
For a comprehensive treatment of the history of the BIA’s definition of “conviction” for
immigration purposes, see generally In re Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999),
order vacated sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).
7
conviction expunged under state law would not be considered a conviction for
immigration purposes if (1) the alien was convicted of simple drug possession;
(2) it was a first offense; (3) the alien had not previously received first-offender
status; and (4) the court entered an order pursuant to a state rehabilitative statute
under which the alien’s conviction was deferred or dismissed upon successful
completion of the probation program. Id. Petitioner insists that his expunged state
conviction satisfies the Manrique requirements and argues for application of
Manrique in this case.5
Manrique, however, was decided in 1995. The next year, Congress enacted
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996), which became effective on
April 1, 1997.
Section 322(a) of IIRIRA, codified at 8 U.S.C. § 1101(a)(48)(A), defined
the term “conviction” as follows:
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 withheld, where—
5
In his brief and at oral argument, Petitioner repeatedly requests the protection of the
FFOA itself. This is meritless—Petitioner was never subject to a federal conviction. See 18
U.S.C. § 3607(a) (permitting expungement of convictions under 21 U.S.C. § 844). It is clear
from his arguments, however, that Petitioner is in fact arguing for the continued application of
the Manrique rule. We assume for purposes of this opinion that Petitioner’s expunged state
conviction would have met the requirements for first offender treatment under Manrique.
8
(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 guilty, and
(ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty to be imposed.
The BIA has ruled that this definition of conviction superseded Manrique,
and that state convictions expunged under a rehabilitative statute are still
convictions for immigration purposes. Roldan-Santoyo, 22 I. & N. Dec. at 528.
The BIA based this holding on both the statutory language and the legislative
history surrounding the enactment of IIRIRA. See id. at 524–28.
The question thus becomes whether the BIA’s interpretation of
§ 1101(a)(48)(A) is permissible. The BIA’s interpretation of the statute is subject
to established principles of deference. Thus, “[i]f the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S. Ct. 2778, 2781
(1984). Where the statute is “silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843, 104 S. Ct. at 2782.
9
The language of § 1101(a)(48)(A) is quite clear—an alien will be
considered to have a conviction for immigration purposes if: (1) a judge or jury
found the alien guilty, if the alien entered a guilty plea or a plea of nolo
contendere, or if the alien admitted sufficient facts to warrant a finding of guilt;
and (2) the judge ordered some form of punishment. Petitioner’s state conviction
satisfies these conditions. He pled guilty to the possession offense and was
subject to a penalty of one year probation. Thus, the statutory definition on its
face appears to negate for immigration purposes the effect of state rehabilitative
measures that purport to expunge or otherwise remove a conviction. See United
States v. Anderson, 328 F.3d 1326, 1328 (11th Cir. 2003) (interpreting
§ 1101(a)(48)(A) in conjunction with U.S.S.G. § 2L1.2(b)(1)(B), and concluding
that § 1101(a)(48)(A) “includes a nolo contendere plea with adjudication withheld
as long as some punishment, penalty, or restraint on liberty is imposed”). The
agency is obligated to follow, and has followed, the clear direction of the statute.6
6
As the Seventh Circuit observed:
Until 1996 the Board adapted its approach to state-law deferred dispositions, not
as a matter of statutory command, but as a matter of federal common law. It
might have changed that approach by the same means it had been adopted:
administrative adjudication. Congress took the issue out of its hands in 1996. A
statute such as § 1101(a)(48)(A) displaces common law. In the absence of
legislation the agency had to find its own way; now the agency must take the
statute’s path.
Gill v. Ashcroft, 335 F.3d 574, 578 (7th Cir. 2003) (internal citations omitted).
10
Nor are we alone in this conclusion. Several of our sister Circuits have also
concluded that § 1101(a)(48)(A) applies to state-expunged convictions. See
Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003) (stating, in case where
petitioner successfully completed a one year probation sentence for a heroin
possession charge in state court that would have made him eligible for FFOA
relief had he been prosecuted by the federal government, that “[t]his language
unambiguously points to the conclusion that the disposition of Acosta’s criminal
case in [state court pursuant to a state law permitting dismissal of charge after
completion of probation without verdict] constitutes a ‘conviction’”); Gill v.
Ashcroft, 335 F.3d 574, 577 (7th Cir. 2003) (“Every court that has considered the
subject believes that § 1101(a)(48)(A) governs the handling of repeat offenders
and that expungements (or restorations of civil rights) under state law do not
negate a ‘conviction’ for purposes of immigration law.”); Herrera-Inirio v. INS,
208 F.3d 299, 304–05 (1st Cir. 2000) (noting that the language of
§ 1101(a)(48)(A) “leaves nothing to the imagination” and that state rehabilitative
programs that do not vacate a conviction on the merits “have no bearing in
determining whether an alien is to be considered ‘convicted’ under section
1101(a)(48)(A).”); Moosa v. INS, 171 F.3d 994, 1005–06 (5th Cir. 1999) (same);
see also United States v. Zamudio, 314 F.3d 517, 522 (10th Cir. 2002) (adopting
11
plain meaning of § 1101(a)(48)(A) when interpreting U.S.S.G. § 2L1.2(b)(1));
United States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (same).7
Having established that the clear language of the statute includes state
convictions expunged under state rehabilitative laws, we need go no further with
our analysis. See Harry v. Marchant, 291 F.3d 767, 772 (11th Cir. 2002) (en
banc) (“Where the language of a statute is unambiguous, as it is here, we need not,
and ought not, consider legislative history.”). Even if were to find the statutory
language ambiguous as to expunged sentences (which we do not), we would still
find the BIA’s construction of the statute permissible.
The BIA has construed § 1101(a)(48)(A) as creating a uniform definition of
conviction that is no longer dependent on the vagaries of state law. Roldan, 22
I. & N. Dec. at 521 (noting that Congress did not intend different immigration
consequences be accorded “to criminals fortunate enough to violate the law in a
state where rehabilitation is achieved through the expungement of records
7
Only the Ninth Circuit has hypothesized that expungements might not be convictions
under IIRIRA. Lujan-Armendariz v. INS, 222 F.3d 728, 746 (9th Cir. 2000) (“We do not believe,
however, that Congress intended to eliminate the longstanding rule that when a conviction or
finding of guilt has actually been expunged, it may not thereafter be used as the basis for
removal.”). The Ninth Circuit has since retreated from this position, however, and now
recognizes that, except for convictions that would satisfy the Manrique requirements, expunged
sentences are convictions for immigration purposes. Murillo-Espinoza v. INS, 261 F.3d 771, 774
(9th Cir. 2001). The BIA has declined to acquiesce in Lujan-Armendariz and will not apply it
outside the Ninth Circuit. In re Salazar-Regino, 23 I. & N. Dec. 223, 235 (BIA 2002).
12
evidencing what would otherwise be considered a conviction under [the statute],
rather than in a state where the procedure achieves the same objective simply
through deferral of judgment”). The BIA’s conclusion is in accordance with the
Congressional Conference Committee Report accompanying IIRIRA, which
indicated Congress’s intent to establish a uniform definition of conviction:
This section deliberately broadens the scope of the definition of
“conviction” beyond that adopted by the Board of Immigration
Appeals in Matter of Ozkok, 19 I & N Dec. 546 (BIA 1988).8 As the
Board noted in Ozkok, there exist in the various States a myriad of
provisions for ameliorating the effects of a conviction. As a result,
aliens who have clearly been guilty of criminal behavior and whom
Congress intended to be considered “convicted” have escaped the
immigration consequences normally attendant upon a conviction.
Ozkok, while making it more difficult for alien criminals to escape
such consequences, does not go far enough to address situations
where a judgment of guilt or imposition of sentence is suspended,
conditioned upon the alien’s future good behavior. For example, the
third prong of Ozkok requires that a judgment or adjudication of guilt
may be entered if the alien violates a term or condition of probation,
8
Ozkok represented the BIA’s final attempt to establish a working definition of
“conviction” for immigration purposes before IIRIRA was enacted. Ozkok offered a three-part
definition of “conviction”:
(1) a judge or jury has found the alien guilty or he has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint
on the person’s liberty to be imposed . . . and
(3) a judgment or adjudication of guilt may be entered if the person
violates the terms of his probation or fails to comply with the requirements of the
court’s order, without availability of further proceedings regarding the person’s
guilt or innocence of the original charge.
19 I. & N. Dec. 546, 551–52 (BIA 1988).
13
without the need for any further proceedings regarding guilt or
innocence on the original charge. In some States, adjudication may
be “deferred” upon a finding or confession of guilt, and a final
judgment of guilt may not be imposed if the alien violates probation
until there is an additional proceeding regarding the alien’s guilt or
innocence. In such cases, the third prong of the Ozkok definition
prevents the original finding or confession of guilt to be considered a
“conviction” for deportation purposes. This new provision, by
removing the third prong of Ozkok, clarifies Congressional intent that
even in cases where adjudication is “deferred,” the original finding or
confession of guilt is sufficient to establish a “conviction” for
purposes of the immigration laws.
H.R. Conf. Rep. No. 104-828, at 224 (1996). As the First Circuit has noted, “[t]he
emphasis that Congress placed on the original admission of guilt plainly indicates
that a subsequent dismissal of charges, based solely on rehabilitative goals and not
on the merits of the charge or on a defect in the underlying criminal proceeding,
does not vitiate that original admission.” Herrera-Inirio, 208 F.3d at 306.
The statutory language is clear. Even if we did not find the statute to be
clear, however, the BIA’s interpretation of the statute is based on a permissible
construction of the statute. In light of these facts, we find the BIA’s interpretation
of § 1101(a)(48)(A) eminently reasonable. For these reasons, we reject
Petitioner’s argument that Manrique applies.
We hold that a state conviction is a conviction for immigration purposes,
regardless of whether it is later expunged under a state rehabilitative statute, so
14
long as it satisfies the requirements of § 1101(a)(48)(A).9 Accordingly, Petitioner
is removable because he committed a covered offense, and we lack jurisdiction to
consider his petition.
B. The Constitutional Challenge
Regardless of the jurisdictional limits placed on us by § 1252(a)(2)(C),
we retain jurisdiction to evaluate constitutional challenges to IIRIRA. Fernandez-
Bernal, 257 F.3d at 1311. We therefore now turn to Petitioner’s constitutional
arguments. Petitioner challenges the constitutionality of the BIA’s interpretation
of § 1101(a)(48)(A) on two bases: equal protection and due process. We address
each in turn.
1. Equal Protection
Petitioner argues the agency’s interpretation violates equal protection
because an alien prosecuted under federal law and the FFOA may not be subject to
removal, whereas an alien who has been accorded rehabilitative treatment under a
state statute is removable, even if he would have been eligible for federal first
offender treatment under the FFOA. Given that Congress has plenary power to
9
The question of whether the FFOA itself is limited or repealed by § 1101(a)(48)(A) is
not before us. We do note, however, that the FFOA has “no residual effect” on the
characterization and treatment of state convictions expunged under state rehabilitative statutes.
Gill, 335 F.3d at 579.
15
pass legislation concerning the admission and exclusion of aliens, see INS v.
Chadha, 462 U.S. 919, 1000, 103 S. Ct. 2764, 2809 (1984), federal classifications
that distinguish among groups of aliens are subject only to rational basis review,
Fernandez-Bernal, 257 F.3d at 1312.10
Petitioner relies on Lujan-Armendariz, in which the Ninth Circuit concluded
no rational basis exists for treating aliens differently based on the “‘mere fortuity’
that they happen to have been prosecuted under state rather than federal law.” 222
F.3d at 748. We are not persuaded by the court’s reasoning in Lujan-Armendariz.
Rational basis review is not demanding. See Rodriguez ex rel. Rodriguez v.
United States, 169 F.3d 1342, 1350 (11th Cir. 1999). Rather, a legislative
classification subject to rational basis review is accorded a “strong presumption of
validity,” Heller v. Doe, 509 U.S. 312, 319, 113 S. Ct. 2637, 2642 (1993), and
review of enactments subject to the rational basis standard must be “a paradigm of
judicial restraint,” FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113
S. Ct. 2096, 2101 (1993). Such legislative classifications must be upheld against
an equal protection challenge “if there is any reasonably conceivable state of facts
10
In Fernandez-Bernal, we found no equal protection violation when an expunged state
conviction for simple possession of cocaine served as a basis for removal under
§ 1182(a)(2)(A)(i)(II), when the sentence received would have made the petitioner ineligible for
first offender treatment under the FFOA. 257 F.3d at 1314–17. Because Petitioner here would
have been eligible for FFOA treatment had he been prosecuted under federal law, Fernandez-
Bernal is not directly applicable.
16
that could provide a rational basis for the classification,” id. at 313, 113 S. Ct. at
2101, and the burden lies on the challenging party to demonstrate that no
conceivable basis exists to support the classification, see Heller, 509 U.S. at
320–21, 113 S. Ct. at 2643.
As the Third Circuit observed in Acosta, a rational basis exists for
distinguishing between aliens whose charges are dismissed under the FFOA and
those whose charges are dismissed under state rehabilitative statutes:
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 operation of state schemes that
resemble the FFOA. Congress 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 advantage of those state schemes to escape what is
considered a conviction under state law.
341 F.3d at 227; see also Herrera-Inirio, 208 F.3d at 309 (1st Cir. 2000) (finding
that § 1101(a)(48)(A) “rationally advances” the “government’s need for a
nationally uniform definition of the term ‘conviction’ for immigration purposes”).
We likewise conclude that Congress had a rational basis for distinguishing
between federal convictions and state convictions for immigration purposes.
Accordingly, Petitioner’s equal protection argument fails.
17
2. Due Process
Petitioner’s procedural due process claim11 is without merit. Aliens are
entitled to be given notice and opportunity to be heard. See, e.g., Reno v. Flores,
507 U.S. 292, 306–09, 113 S. Ct. 1439, 1449–51 (1993). In this case, Petitioner
was given ample notice of the charges of removal and was aware that the INS
sought his removal based on both 8 U.S.C. § 1182(a)(2)(A)(i)(II) and
§ 1182(a)(6)(A)(i). Likewise, Petitioner was given sufficient opportunity to
contest his removability, both before the immigration judge and the BIA, and to
contest the agency’s characterization of his state conviction for simple possession.
Cf. Chowdhury v. INS, 249 F.3d 970, 975 (9th Cir. 2001) (concluding petitioner
was denied due process where agency sought his removal on grounds not charged
in the Notice to Appear). Petitioner thus has not satisfied the requirements of a
procedural due process claim.
III. CONCLUSION
Petitioner’s state conviction, although expunged under a state rehabilitative
statute, remains a conviction for immigration purposes under § 1101(a)(48)(A).
Such treatment does not raise a meritorious constitutional issue. Thus, we find
Petitioner is an alien who is removable for committing an offense under 8 U.S.C.
11
Petitioner does not assert a substantive due process claim.
18
§ 1182(a)(2)(A)(i)(II). Accordingly, we lack jurisdiction to review his petition
under 8 U.S.C. § 1252(a)(2)(C).
DISMISSED.
19