Expunged Convictions and Cancellation of Removal: Respondent’s Brief. Nunez-Reyes v. Holder 602 F.3d

Expunged Convictions and Cancellation of Removal:  Respondent’s Brief. Nunez-Reyes v. Holder 602 F.3d

Expunged Convictions and Cancellation of Removal:  Respondent’s Brief. Nunez-Reyes v. Holder 602 F.3d

United States Court of Appeals,

Ninth Circuit.

Flavio NUNEZ-REYES, Petitioner,
v.
Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-74350.

June 5, 2006.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A78-181-648

Brief for Respondent

Peter D. Keisler, Assistant Attorney General, Civil Division, Michelle Gorden Latour, Assistant Director, Keith I. Bernstein, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, P.O. Box 878, Ben Franklin Station, Washington, D.C. 20044, (202) 514-3567, Attorneys for Respondent.

TABLE OF CONTENTS

STATEMENT OF JURISDICTION … 1

II. STATEMENT OF THE ISSUE PRESENTED … 2
III. STATEMENT OF THE CASE … 3
IV. STATEMENT OF THE FACTS … 6

A) The Immigration Judge’s Decision … 6
B) The Board’s Decision … 7

V. SUMMARY OF ARGUMENT … 9
VI. ARGUMENT … 10
THE BIA PROPERLY FOUND PETITIONER TO BE INELIGIBLE FOR RELIEF BY VIRTUE OF HIS CONVICTION FOR AN OFFENSE RELATING TO A CONTROLLED SUBSTANCE … 10

A) Standard and Scope of Review … 10

B) The Board Reasonably Concluded That Petitioner’s Conviction For Using Or Being Under The Influence Of A Controlled Substance Is Not Covered By The Federal First Offender Act, And That Petitioner Therefore Stands Convicted Of A Crime Relating To A Controlled Substance That Renders Him Ineligible For Relief … 11

VII. CONCLUSION … 19

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

Note: Table of Contents page numbers missing in original document

TABLE OF AUTHORITIES

CASES

Aguiluz-Arellano v. Gonzales, –F.3d–, No. 03-73856, 2006 WL 1133327 (9th Cir. May 1, 2006) … 10, passim
Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) … 12, 14, 16, 17
Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004) … 11
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) … 10
Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993) … 13
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) … 10
Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) … 7, passim
Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001) … 8, 11
Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. 2002) … 8, 11, 12

ADMINISTRATIVE DECISIONS

Matter of Marroquin-Garcia, 23 I. & N. Dec. 705 (AG 2005) … 12, 15, 17

STATUTES

Immigration and Nationality Act of 1952, as amended:

Section 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) … 4
Section 212(a)(6), 8 U.S.C. § 1182(a)(6) … 4, 7
Section 242(a)(1), 8 U.S.C. § 1252(a)(1) … 2, 10
Section 242(a)(5), 8 U.S.C. § 1252(a)(5) … 2
Section 242(b)(1), 8 U.S.C. § 1252(b)(1) … 2
Section 242(b)(2), 8 U.S.C. § 1252(b)(2) … 2

REAL ID Act of 2005:

Section 106(a)(1)(B) … 2
Section 106(b) … 2

REGULATIONS

8 C.F.R. § 1003.1(b)(3) … 2
8 C.F.R. § 1240.15 … 2

I. STATEMENT OF JURISDICTION

This is an immigration case in which Petitioner Flavio Nunez-Reyes (“Nunez-Reyes” or “Petitioner”) seeks review of a final order of removal issued by the Board of Immigration Appeals (“the Board” or “BIA”) on June 24, 2005. See Certified Administrative Record (“A.R.”) 1-4. By its order the Board dismissed Petitioner’s appeal from the decision of an immigration judge denying his applications for cancellation of removal, adjustment of status, and voluntary departure, and ordering Nunez-Reyes removed from the United States to Mexico. Id.; A.R. 228-35. The Board’s jurisdiction arose under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 (2004), which grant the Board appellate jurisdiction over decisions of immigration judges in removal proceedings.

This Court’s jurisdiction arises under section 242(a)(1) of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. § 1252(a)(1) (2000) (as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B., 119 Stat. 231 (May 11, 2005) (“RIDA” or “REAL ID Act”)), which grants the Courts of Appeals exclusive jurisdiction over final orders of removal.[FN1] The instant petition for review was timely filed on July 22, 2005, within thirty days of the Board’s final order. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). Venue properly lies in this Court because Petitioner’s immigration proceedings were completed within this judicial circuit, specifically in San Francisco, California. See INA § 242(b)(2), 8 U.S.C. § 1252(b)(2).

FN1. See also INA § 242(a)(5), 8 U.S.C. § 1252(a)(5) (2005) (added by RIDA § 106(a)(1)(B) and (b)).

II. STATEMENT OF THE ISSUE PRESENTED

Whether the BIA reasonably concluded that Petitioner’s California conviction for using or being under the influence of methamphetamine constitutes a crime relating to a controlled substance that renders Petitioner ineligible for relief where, notwithstanding the fact that the conviction was ultimately dismissed under a state rehabilitative statute, the conviction does not qualify for treatment under the Federal First Offender Act because it is not a simple possession offense.

III. STATEMENT OF THE CASE

Petitioner is a male native and citizen of Mexico who illegally entered the United States at or near San Ysidro, California, on an unknown date in 1992. A.R. 323. On August 15, 2001, Nunez-Reyes was convicted in the Superior Court of California, Santa Clara County, of one count of possession of a controlled substance, to wit: methamphetamine, in violation of section 11377(a) of the California Health and Safety Code, and one count of using or being under the influence of a controlled substance, to wit: methamphetamine, in violation of section 11550(a) of the California Health and Safety Code.[FN2] See A.R. 103-06, 108, 261-62, 268-69, 273-74, 299; Cal. Health & Safety Code §§ 11377(a) and 11550(a) (West 2000). The charges against Petitioner were subsequently dismissed pursuant to section 1210.1 of the California Penal Code. See A.R. 93-97, 264-71; Cal. Penal Code § 1210.1 (d)(1) (West 2000).

FN2. Petitioner initially pleaded guilty to the charges against him on June 27, 2001, but the entry of judgment was deferred. A.R. 106, 261, 268. On August 15, 2001, judgment was entered against Nunez-Reyes and his sentence was imposed. See A.R. 262, 268.

On January 31, 2002, the former Immigration and Naturalization Service (“INS”)-now the Department of Homeland Security (“DHS”)-commenced removal proceedings against Nunez-Reyes by serving him a Notice to Appear (“NTA”), charging Petitioner with removability under section 212(a)(6)(A)(i) of the INA, as an alien present in the United States without being admitted or paroled. See A.R. 322-24; 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner appeared before an immigration judge and, through counsel, admitted the factual allegations contained in the NTA and conceded his removability as charged under section 212(a)(6) of the Act.[FN3] A.R. 45. On September 3, 2002, the former INS lodged an additional charge of removability against Petitioner, alleging that, based on his conviction for possession of methamphetamine, he was inadmissible under section 212(a)(2)(A)(i)(II) of the INA for having been convicted of an offense relating to a controlled substance. A.R. 101; 8 U.S.C. § 1182(a)(2)(A)(i)(II). Nunez-Reyes denied the additional allegation and charge. See A.R. 61. Nevertheless, based on the conviction documents in the record, the immigration judge found the additional charge of removability to be sustained by clear and convincing evidence. See A.R. 67-68, 71, 78.

FN3. Petitioner’s removal proceedings commenced in Eloy, Arizona, where Nunez-Reyes was being detained by the former INS. See A.R. 321. Following the issuance of the NTA, Nunez-Reyes was released from federal custody, and sought and was granted a change of venue to the immigration court in San Francisco, California. See A.R. 303, 305-306, 317-20.

As relief from removal, Nunez-Reyes pursued applications for cancellation of removal, adjustment of status, and voluntary departure in the alternative. See A.R. 46, 50-51, 114-220. After considering the evidence and arguments presented, the immigration judge issued a decision on May 12, 2003, pretermitting Petitioner’s application for cancellation of removal, denying his applications for adjustment of status and voluntary departure, and ordering Nunez-Reyes removed from the United States to Mexico. A.R. 30-31, 228-34, 287-88. Although Petitioner reserved the right to do so, he failed to properly appeal the immigration judge’s decision to the Board. See A.R. 90.

On or about January 8, 2004, Nunez-Reyes, through new counsel, filed a motion to reopen with the immigration judge, asking the court to reopen his case “simply so [he] may enjoy the administrative appellate rights contemplated by Congress ….” A.R. 240-56. On February 13, 2004, the immigration judge issued an ‘order granting Petitioner’s motion to reopen “for the limited purpose of reissuing the [c]ourt’s decision originally dated May 12, 2003.” A.R. 38-40. The original removal order therefore became final as of February 13, 2004. See A.R. 40.

Nunez-Reyes timely appealed the immigration judge’s decision to the Board, arguing that he remained eligible for relief because the dismissal of his drug convictions under California law was akin to an expungement under the Federal First Offender Act (“FFOA”), thereby eliminating the immigration consequences of those convictions. See A.R. 12-17, 21-37. On June 24, 2005, the BIA issued an order rejecting Petitioner’s arguments and dismissing his appeal. A.R. 1-4. The instant petition for review followed.

IV. STATEMENT OF THE FACTS

A) The Immigration Judge’s Decision

After considering the evidence and arguments submitted by the parties, the immigration judge denied Petitioner’s applications for relief. A.R. 30-31, 228-34, 287-88. Based on the conviction documents in the record, the immigration judge concluded that Nunez-Reyes had clearly been convicted of “a crime relating to a controlled substance, which would render him inadmissible and removable,” and ineligible for any relief A.R. 230-31. Although the immigration judge recognized that Petitioner’s convictions for possession of methamphetamine and using or being under the influence of methamphetamine had been “dismissed” pursuant to a state rehabilitative statute, he nevertheless determined that Nunez-Reyes had “clearly [been] convicted within the meaning of [the INA],” and that his convictions were still valid for immigration purposes. A.R. 232-33. Having found that Petitioner was inadmissible and removable as charged for having been convicted of a crime relating to a controlled substance, the immigration judge denied Petitioner’s applications for relief and ordered him removed from the United States to Mexico. A.R. 233-34.

B) The Board’s Decision

On appeal, the BIA concluded that Nunez-Reyes was “removable and ineligible for relief,” and found “no reversible error in the [immigration [j]udge’s decision ordering him removed.” A.R. 4. Noting that Petitioner had conceded his removability under section 212(a)(6) of the Act, the Board stated that “the only issue … on appeal is whether [Nunez-Reyes] is eligible for any form of relief from removal in light of his drug convictions.” A.R. 3 (citing the FFOA and Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000)). The Board reasoned that “even if… the dismissal of [Petitioner’s] conviction for methamphetamine possession” eliminated the immigration consequences of that conviction, “this is not the end of the matter.” Id. The BIA went on to find that, even if dismissed, Nunez-Reyes s conviction under section 11550 of the California Health and Safety Code for using or being under the influence of methamphetamine “remains effective for immigration purposes ….” Id.

The Board pointed out that, generally, “the definition of ‘conviction’ [in the INA] encompasses those [convictions] that have been expunged by operation of state rehabilitative statutes.” A.R. 3 (citing Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. 2002) and Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001)). The Board recognized, however, that “[t]he Ninth Circuit makes an exception to this general rule … where the state expungement relates to a first-time offense involving the simple possession of a controlled substance, such that the offender could have qualified for pre-judgment probation or expungement under the FFOA had he been prosecuted under federal law.” Id. (emphasis in original) (citing Lujan-Armendariz, supra). Relying on this premise, the Board determined that “[t]he dismissal of [Petitioner’s] conviction for using or being under the influence of methamphetamine [pursuant to] CAL. HEALTH & SAFETY CODE § 11550 does not vitiate the conviction under Lujan-Armendariz … because the offense of conviction is not one for which federal first offender treatment would be available.” Id. In other words, the BIA found that the FFOA “applies only to simple possession offenses,” and that Nunez-Reyes’s conviction for being under the influence of methamphetamine is not a simple possession offense. Id. Thus, the Board concluded that because Petitioner’s conviction under section 11550 “is not analogous to any offense for which federal first offender treatment would be available, the dismissal of that offense … is not akin to an FFOA expungement,” and Petitioner’s conviction for that offense “remains a ‘conviction’ for immigration purposes despite the fact that it has been dismissed under a state rehabilitative statute.” A.R. 4 (emphasis added).

Having determined that Nunez-Reyes stood convicted of an offense “relating to a controlled substance,” the Board ultimately found that Petitioner was ineligible for cancellation of removal, adjustment of status, and voluntary departure under the Act. See A.R. 4. Accordingly, the BIA dismissed Petitioner’s appeal. Id.

V. SUMMARY OF ARGUMENT

The BIA properly concluded that Petitioner stands convicted of an offense relating to a controlled substance, notwithstanding the dismissal of his convictions under a state rehabilitative statute. As the Board found, Petitioner’s conviction for using or being under the influence of methamphetamine does not constitute a simple possession offense, such that the conviction would have qualified for treatment under the Federal First Offender Act. Under the facts of this case, there is no reason to deviate from the plain language of the FFOA, which excludes convictions for offenses not described as simple possession offenses under federal law. Thus, the Board reasonably concluded that Petitioner’s conviction under section 11550 of the California Health and Safety Code was a valid basis for denying him relief from removal, notwithstanding the fact that the conviction was dismissed under California law. Accordingly, the Court should uphold the Board’s decision and deny the petition for review.

VI. ARGUMENT

THE BIA PROPERLY FOUND PETITIONER TO BE INELIGIBLE FOR RELIEF BY VIRTUE OF HIS CONVICTION FOR AN OFFENSE RELATING TO A CONTROLLED SUBSTANCE

A) Standard and Scope of Review

Generally, the Court reviews the Board’s decision as the final agency determination. See INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). The Court reviews the BIA’s legal conclusions de novo, subject to established principles of deference. See Aguiluz-Arellano v. Gonzales, – F.3d -, No. 03-73856, 2006 WL 1133327, at (9th Cir. May 1, 2006); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).

B) The Board Reasonably Concluded That Petitioner’s Conviction For Using Or Being Under The Influence Of A Controlled Substance Is Not Covered By The Federal First Offender Act, And That Petitioner Therefore Stands Convicted Of A Crime Relating To A Controlled Substance That Renders Him Ineligible For Relief

This Court has found that “as a general rule, an expunged [state court] 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)). The Court has also recognized an exception to that general rule, however, in cases involving first-time simple possession of federally controlled substances. See Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000). Thus, if an alien could have satisfied the requirements of the Federal First Offender Act had his offense been prosecuted as a federal crime, then the expungement of his conviction under state law eliminates the immigration consequences of the offense. See id.; 18 U.S.C. § 3607 (West 2000); see also Aguiluz-Arellano, supra, at (“We have held that an alien is not removable if his or her conviction was subject to a state rehabilitative statute and the alien, if prosecuted in federal court, would have qualified for treatment under the FFOA.”); Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1290 (9th Cir. 2004) (“[T]he rule in this circuit is that aliens found guilty of first-time simple possession crimes under state law can still avoid deportation if they could have received relief under the FFOA and do obtain relief under a state rehabilitation statute.”); Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 (9th Cir. 2000) (“If [the petitioner] would have been eligible for first offender treatment under federal law, he would not stand ‘convicted’ for purposes of the immigration laws.”); Ramirez-Castro, 287 F.3d at 1174 (“[I]f a petitioner could have satisfied the requirements of the [FFOA], then the expungement of the petitioner’s conviction under state law eliminates the immigration consequences of the offense.”); accord Matter of Marroquin-Garcia, 23 I. & N. Dec. 705, 706 (AG 2005) (“[T]he new federal definition of ‘conviction’ means that for a conviction not involving first-time simple possession of narcotics, an alien remains convicted … notwithstanding a subsequent state action to vacate or set aside the conviction.”) (emphasis added).

Here, Nunez-Reyes apparently argues that, based on Lujan-Armendariz and its progeny, he is “no longer ‘convicted’ ” of a controlled substance offense for immigration purposes, and is therefore eligible for relief, because his state court convictions fall within the purview of the FFOA. See Petitioner’s Opening Brief (“Pet. Br.”) at 10-15. Petitioner is mistaken. In this case the Board correctly determined that Nunez-Reyes stands convicted of a crime relating to a controlled substance because, although ultimately dismissed pursuant to a state rehabilitative statute, Petitioner’s conviction under section 11550 of the California Health and Safety Code for using or being under the influence of methamphetamine does not constitute a “simple possession” offense, and is therefore not covered by the FFOA.[FN4] See A.R. 2-4. Petitioner’s arguments on review are not sufficient to warrant a contrary finding.

FN4. As the Board noted, this Court has previously determined that the offense of using or being under the influence of methamphetamine, in violation of section 11550, is one relating to a controlled substance. See A.R. 3 n.2; Flores-Arellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993) (“The ordinary meaning of the phrase ‘any law … relating to a controlled substance’ encompasses laws proscribing use or being under the influence of a controlled substance.”).

As the record reveals, Nunez-Reyes pled guilty to and was convicted of violating two separate and distinct statutory provisions: California Health and Safety Code § 11377(a), for possession of methamphetamine; and California Health and Safety Code § 11550(a), for using or being under the influence of methamphetamine. See A.R. 103-06, 108, 261-62, 268-69, 273-74, 299. Both convictions were ultimately dismissed pursuant to California law. See A.R. 93-97, 264-71; Cal. Penal Code § 1210.1(d)(1). Moreover, the record evidence does not demonstrate that Nunez-Reyes had previously been convicted of violating a federal or state law relating to a controlled substance, or that he had previously been accorded first offender treatment under any law. Cf. 18 U.S.C. § 3607(a)(1)-(2); (2) Cardenas-Uriarte, 227 F.3d at 1136. Thus, for purposes of review, the only relevant question is whether Petitioner’s state court convictions amount to simple possession offenses, and therefore fall within the ambit of the FFOA. See 18 U.S.C. § 3607(a); 21 U.S.C. § 844(a); Cardenas-Uriarte, 227 F.3d at 1136-37.

As the Board suggested, Petitioner’s conviction for possession of methamphetamine seems ripe for treatment under the FFOA. See A.R. 3. Nevertheless, even assuming, as the BIA did, that the dismissal of the possession conviction eliminates the immigration consequences of that offense, “this is not the end of the matter.” Id. Indeed, the Board correctly determined that Petitioner’s conviction for using or being under the influence of methamphetamine is still valid for immigration purposes “because the offense of conviction is not one for which federal first offender treatment would be available.” Id. To be sure, this Court has found, and the BIA astutely noted in this case that, “[b]y its terms, the FFOA applies only to simple possession offenses described in 21 U.S.C. § 844.” Id. (emphasis added); 18 U.S.C. § 3607(a); see also 21 U.S.C. § 844(a) (“It shall be unlawful for any person knowingly or intentionally to possess a controlled substance ….”); Aguiluz-Arellano, supra, at n. 1 (“The FFOA only applies to offenses defined in 21 U.S.C. § 844 ….”); Cardenas-Uriarte, 277 F.3d at 1136 (“The [FFOA] requires a plea or conviction of possession of a controlled substance, as described in 21 U.S.C. § 844.”); Lujan-Armendariz, 222 F.3d at 735 (recognizing the FFOA to be “a rehabilitation statute that applies exclusively to first time drug offenders who are guilty only of simple possession”) (emphasis added); accord Matter of Marroquin-Garcia, 23 I. & N. Dec. at 708-09 (“Congress carved out a narrow exception for simple federal possession offenses when it enacted the [FFOA]. The FFOA applies only to first-time drug offenders who are guilty only of simple possession.”) (emphasis added). As the Board plainly stated here, “[b]eing under the influence of methamphetamine is not a simple possession offense.” A.R. 3 (emphasis added). Thus, the Board correctly concluded that, because Petitioner’s conviction under section 11550 “is not analogous to any offense for which federal first offender treatment would be available,” the dismissal of that conviction “is not akin to an FFOA expungement,” and Nunez-Reyes remains convicted of a controlled substance offense for immigration purposes. A.R. 4; cf. Aguiluz-Arellano, supra, at (“[I]f an alien’s state court conviction does not fall within the scope of the FFOA, he or she is not entitled to favorable immigration treatment just because his or her conviction is subject to a state rehabilitation statute.”) (emphasis added); Lujan-Armendariz, 222 F.3d at 738 (same).

Notably, in this case, the BIA further acknowledged that this Court “has concluded that the FFOA also applies to convictions for ‘lesser’ offenses that resulted from guilty pleas where the defendant had originally been charged with simple possession.” A.R. 3 (citing Cardenas-Uriarte, 227 F.3d at 1137). Indeed, in Cardenas-Uriarte, the Court determined that the FFOA included a state drug offense not described by the plain language of 21 U.S.C. § 844, because it was a lesser included offense of simple possession. See 227 F.3d at 1136-37 & n.6. In that case, the alien was originally charged with two counts of possession of drugs but “pled guilty to the lesser offense of possession of drug paraphernalia.” Id. at 1137. While the Court recognized that “[t]he plain language of the statute suggests that possession of drug paraphernalia should not be included [in the FFOA] as an offense described in [21 U.S.C. § 844],” it found that to conclude otherwise “would frustrate congressional intent and lead to an absurd result.” Id. According to the Court, an absurd result would have obtained if the alien had not received FFOA treatment for this lesser included offense because “if [he] had refused to plead guilty, and was convicted of the more damaging offense of possession of the drugs, he could qualify under the [FFOA].” Id. Importantly, the Court explicitly noted in Cardenas-Uriarte that its holding was limited “to the facts of [that] case.” Id. at 1137 n.6.

In this case, by contrast, no potential absurdity inhibits the Board, or the Court, from construing the FFOA according to its plain meaning. Unlike Cardenas-Uriarte, the record here does not indicate–and Petitioner does not assert–that Nunez-Reyes was charged with a second count of simple possession but pled only to using or being under the influence of methamphetamine as a lesser included offense. See A.R. 3-4. Rather, as the Board found, Nunez-Reyes was charged and convicted under two separate and independent statutory provisions; the violation of one provision does not necessarily result in a violation of the other. See id.; compare Cal. Health & Safety Code § 11377(a) with Cal. Health & Safety Code § 11550(a). Moreover, excluding Petitioner’s drug use conviction from the FFOA does not frustrate Congressional intent because, as previously stated, the plain language of the FFOA makes clear that the statute applies only to drug possession offenses. See 18 U.S.C. § 3607(a); 21 U.S.C. § 844; Aguiluz-Arellano, supra, at n.1; Cardenas-Uriarte, 277 F.3d at 1136; Lujan-Armendariz, 222 F.3d at 735; Matter of Marroquin-Garcia, 23 I. & N. Dec. at 708-09′. Thus, under the facts of this case, there is no reason to deviate from the plain language of the EFOA, which excludes convictions for offenses-like Petitioner’s use of methamphetamine-not described in 21 U.S.C. § 844. The Board therefore reasonably concluded that Petitioner’s conviction under section 11550 of the California Health and Safety Code was a valid basis for denying him relief from removal.[FN5] See A.R. 3-4.

FN5. Nowhere in his opening brief does Petitioner even attempt to argue, let alone prove that, assuming both of his convictions are no longer valid for immigration purposes, he is otherwise eligible for the relief he requested. In any event, the BIA did not deny Petitioner’s applications for relief on the merits; rather, the Board’s decision was based solely on its finding that Nunez-Reyes stood convicted of a crime relating to a controlled substance, which barred his eligibility for relief. See A.R. 4. Accordingly, in the unlikely event the Court finds that Nunez-Reyes has not been convicted of any offense relating to a controlled substance, the Court must remand Petitioner’s case to the BIA for a determination on the merits of Petitioner’s applications for relief. See Aguiluz-Arellano, supra, at (finding that the Court “would have to remand to the BIA if the issue was whether [the petitioner] qualified for discretionary relief,” but that remand is not required where the sole issue is the alien’s removability based on a controlled substance offense, which rests on the agency’s interpretation of the FFOA); contra A.R. 45, 323 (indicating that, in this case, Petitioner conceded his removability on other grounds not tied to his controlled substance offenses).

VII. CONCLUSION

For all the foregoing reasons, the Court should uphold the Board’s decision and deny the petition for review.

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, undersigned counsel for Respondent hereby certifies that, based upon a survey of the attorneys in this office, he is not aware of any case(s) pending in this Court that may be related to the instant petition for review.

Flavio NUNEZ-REYES, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

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