On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-855-635.
The opinion of the court was delivered by: Berzon, Circuit Judge
Submitted February 11, 2010*fn1 -- San Francisco, California
Before: John T. Noonan, Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Berzon; Concurrence by Judge Ikuta
We must decide whether first-time offenders convicted of using or being under the influence of a controlled substance pursuant to Cal. Health & Safety Code § 11550, where such offenders are subsequently granted relief under Cal. Penal Code § 1203.4, are eligible for the same immigration treatment as those convicted of simple drug possession whose convictions are expunged under the Federal First Offender Act (FFOA). We hold that they are.
FACTUAL AND PROCEDURAL BACKGROUND
Juan Jose Jimenez Rice is a national and citizen of Mexico. He entered the United States as a visitor on January 19, 1987, with permission to stay until July 18, 1987. He never left. He has two U.S. citizen children, a 22-year-old daughter and an 18-year-old son.
On September 20, 1999, the former Immigration and Naturalization Service (INS) issued Jimenez a Notice to Appear, charging that he was unlawfully present in the United States and therefore removable. His first removal hearing, in October 1999, was continued so that he could apply for cancellation of removal.
In June 2001, Jimenez was charged in a single complaint with two drug offenses: one felony count of possession of cocaine in violation of Cal. Health & Safety Code § 11350(a) and one misdemeanor count of using or being under the influence of a stimulant in violation of Cal. Health & Safety Code § 11550. He pleaded nolo contendere and was convicted of both offenses on November 29, 2001. The Superior Court suspended imposition of sentence and admitted him to three years of supervised probation. In June 2003, the court issued a single order under Cal. Penal Code § 1203.4 terminating Jimenez's probation under Cal. Penal Code § 1203.3, setting aside his pleas of nolo contendere, entering pleas of not guilty, dismissing the complaint, and releasing him from specified penalties and disabilities resulting from the offenses.
The INS moved to pretermit Jimenez's application for cancellation of removal, asserting, among other things, that the convictions would prevent him from establishing the requisite good moral character. In a May 2004 hearing, the Immigration Judge (IJ) held that Jimenez was statutorily ineligible for cancellation of removal because he could not satisfy the good moral character requirements, specifically section 101(f)(3) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(f)(3), because he had been convicted of violating a controlled substance law as defined in INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A).
The Board of Immigration Appeals (BIA) conducted a de novo review and dismissed Jimenez's appeal. It held, first, that he would not have been eligible for relief under the Federal First Offender Act (FFOA), 18 U.S.C. § 3607, for the offense of being under the influence of a controlled substance because the FFOA applies only to simple possession offenses. Thus, that conviction was still valid for immigration purposes, even though he received relief under Cal. Penal Code § 1203.4. Second, the BIA held that "expunged convictions can be used in assessing an alien's good moral character because the ...