Expunged Convictions and Cancellation of Removal:  Opening Brief. Nunez-Reyes v. Holder 602 F.3d 1102  C.A.9,2010

Expunged Convictions and Cancellation of Removal:  Opening Brief. Nunez-Reyes v. Holder 602 F.3d 1102  C.A.9,2010

Flavio NUNEZ-REYES, Petitioner, v. Alberto GONZALES, Attorney General
2006 WL 5211813
United States Court of Appeals,Ninth Circuit.

United States Court of Appeals,

Ninth Circuit.

Flavio NUNEZ-REYES, Petitioner,
v.
Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-74350.

February 7, 2006.

Opening Brief on Petition for Review

Law Office of Ricci & Sprouls, 445 Washington Street, San Francisco, CA, 415 391 2100, Frank P. Sprouls, Attorney for Petitioner.

TABLE OF CONTENTS

STATEMENT OF JURISDICTION … 1
CERTIFICATE OF INTERSTED PARTIES … 2
CERTIFICATE OR RELATED CASES … 3
BRIEF FORMAT … 4
COMPLIANCE with Circuit Rule 15-4;27-8 & 28-2 … 5
STATEMENT OF THE ISSUES … 6
STATEMENT OF THE CASE AND STATEMENT OF FACTS … 7
STANDARD OF REVIEW … 9
POINTS AND AUTHORITIES AND ARGUMENT

A. I. The conviction has been dismissed under a state proceeding analogous to the FOFA … 10

I. There is no analogous charge of being under the influence and this petitioner would have been eligible for FOFA. … 13

CONCLUSION … 15

TABLE OF AUTHORITIES

NINTH CIRCUIT COURT OF APPEALS

Aguilera-Cota v. INS, 914 F.2d 1375 (9th Cir. 1990) … 10
Arteaga v. INS, 836 F.2d 1227 (9th Cir. 1988) … 10
Ayala-Chavez v. INS, 944 F.2d 906 (9th Cir. 1991) … 9
Cardenas-Uriate v. INS, 227 F.3d. 1132 … 14
De LaLuz v. INS, 713 F.2d 545 (9th Cir. 1983) … 14
Lugan-Armendariz v. INS, 222 F.2d. 729 … 8, 12
U.S. v. Lomas, 30 F.3d. 1191 … 14
Vargas v. INS, 831 F.2d 906 (9th Cir. 1987) … 9
Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1992) … 10

BOARD OF IMMIGRATION APPEALS

Matter of Barret, Int. Dec. 3131 … 14

IMMIGRATION AND NATIONALITY ACT

INA 101 (a) (48) … 12

CALIFORNIA HEALTH AND SAFETY CODE

H&S 11377 … 8
H&S 111550 … 8
11550 … 8

UNITED STATES COD

18 USC 3607 … 12
21 USC 844 … 14

STATEMENT OF THE ISSUES

Petitioner requests that this Court address the following issues;

1) Has the Petitioner been convicted of a drug offense based on the conviction documents submitted by the Government?

2) Did the BIA abuse its discretion in finding that a conviction for “being under the influence of a controlled substance” could not support a FOFA (Federal First Offender) dismissal?

STATEMENT OF THE CASE AND STATEMENT OF FACTS

The Petitioner was simply charged as being an alien who was present in the United States without being inspected or admitted. (322)

He was being held in Government custody in Eloy, Arizona and a Motion to Change Venue was filed over the Government’s objection. (310-316)

However, the Petitioner subsequently bonded out of custody and the Government withdrew their opposition. (304)

The matter came on before the Immigration Judge on a Master Calendar hearing.

The position of the Petitioner was that he was eligible for Adjustment of Status because he was married to a United States citizen and an immigrant visa was current and available. (111-199)

The Government claimed that he was not eligible for any such relief because he was convicted of crime relating to a controlled substance and no waiver exists under INA 212 et seq.

The Government submitted a Hearing Memorandum stating that the Petitioner was convicted of two counts under the Health and Safety Code, one for H&S 11377 – possession of methamphetamine and one count of Health and Safety Code 11550 – being under the influence of a controlled substance. (100-107)

Within that hearing memorandum, the Government lodged another count of Removal, specifically one count of a violation of Health and Safety Code 11550 – possession of methamphetamine for personal use.

Additionally, the Government claimed that he had previously been granted a Prop 36 disposition on June 27, 2001. (100)

A colloquy occurred regarding edibility for relief and the discussion centered on the conviction for simple possession of methamphetamine. (70-76)

The Petitioner’s counsel informed that there was a pending criminal court date that would address that conviction and the matter was continued.

On May 12, 2003, the petitioner appeared in Court and he announced that the matter had been dismissed pursuant to Prop 36. (95)

The IJ denied relief on the grounds that Prop 36 did not parallel the reasoning found in Lugan-Armendariz v. INS, 222 F.2d. 729 (9th Cir. 2000) which construes parallel state proceedings under the FOFA. (228-234)

The Petitioner did not file an appeal to the BIA.

Present counsel filed a Motion to Reopen to simply receive the same decision with a sate to preserve the Petitioner’s administrative appellate rights. (240-248)

The Immigration Judge granted the Motion and a timely appeal to the BIA followed.

The BIA sustained the appeal on grounds different than the IJ, specifically they found that a conviction for H&S 11550 could not have been the subject of Federal First Offender Treatment. (2-4)

A timely petition for Review followed.

STANDARD OF REVIEW

In reviewing the equities of an individual case on appeal from the BIA (Board of Immigration Appeals) the Ninth Circuit applies an abuse of discretion test. Vargas v. INS, 831 F.2d 906, 908 (9th. Cir. 1987).

There is an abuse of discretion where the Court does not make a careful and individualized determination. Ayala-Chavez v. INS, 944 F.2d 906, 908 (9th Cir. 1987).

The BIA abuses its discretion if it inexplicably departs from prior precedent, departs from its own regulations, fails to consider all relevant factors or considers irrelevant factors. Yepes-Prado v. INS, 10 F.3d 1363, 1369; (9th Cir. 1993); De LaLuz v. INS, 713 F.2d 545,545 (9th Cir. 1983).

On questions of fact, the Ninth Circuit shall apply a “substantial evidence” test. Aguilera-Cota, 914 F.2d 1375 (9th Cir. 1990).

To withstand scrutiny under the substantial evidence test, the reasons given by the Immigration Judge for crediting evidence must be substantial and bear a legitimate nexus to the ultimate determination. Aguilera-Cota, supra at 1381.

Questions of law, such as whether the BIA applied the appropriate legal standard, are reviewed de novo. Artega v. INS, 836 F.2d 1227, 1228 (9th Cir. 1988).

Finally, where the BIA takes administrative notice of facts not in the record, it must adequately state an independent reason for its denial apart from the facts administratively noticed. Kahassai v. INS, 16 F.3d 323, 325 (9th Cir. 1994).

POINTS AND AUTHORITIES AND ARGUMENT
I. The conviction has been dismissed under a state proceeding analogous to the FOFA

Here, the conviction that was under discussion by all of the parties was Case #cc10655. (108, 106, 95, 93)

There, the Petitioner was charged with two counts of the Health and Safety Code, one for a simple possession of methamphetamine under H&S 11377 and one count of being under the influence of H&S 11550. (103-105 – complaint; 106-plea of guilt)

This is the conviction that undergirds the amended charge on the NTA. (101)

Now, it is clearly this conviction and this conviction only that the BIA is construing in their decision.

This is clearly the case because the BIA discussed the procedural history of this one case and noted that he initially received a Deferred Entry of Judgment but the Deferred Judgment was dismissed and criminal proceedings were reinstated. The Board noted that subsequently the matter was dismissed pursuant to Proposition 36. (2-3)

Now, there is no discussion of any other convictions that the petitioner may or may not have suffered and thus the BIA decision pertaining to this conviction is the proper subject of this appeal.

Prop. 36 simply amends the prior “Diversion” statute (Penal Code 1000 et sew), however it deals specifically with simple possession statutes.

“this chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Health and Safety Code 11350, 11364, 11365, 11377 or 11550.” (Exhibit B)

If the defendant completes the program the case is dismissed as was done in the present case.

Under the clear, unambiguous authority of Lugan-Armendariz v. INS, 222 F.2d. 729 (9th Cir. 2000), the Respondent is no longer “convicted” under INA 101 (a) (48) and he is thus eligible for Adjustment.

There is nothing “contextual” about the reasoning of Lugan, i.e. that it is somehow only relevant in the context of Adjustment or a finding of Good Moral Character or a specific finding of removability or deportability.

Lugan construed the “definition” of a conviction under IIRAIRA and concluded that a first-time simple possession conviction that could have been dismissed under the Federal First Offender Act is not a “conviction” for immigration purposes. 18 USC 3607.

To be eligible under FOFA, the defendant must have pled to simple possession of a controlled substance and it must be the defendant’s first narcotics offense.

Therefore, where an offense is expunged or “diverted” in this context, the effect is global.

The Respondents in Lugan, were both long time LPR’s and the Ninth Circuit simply vacated the orders of Removal.

“We hold that the new definition of conviction for immigration purposes does not repeal the Federal First Offender Act or the rule that an alien may not deported based on an offense that could have been tried under the Act, but is expunged under state law, where the findings are expunged pursuant to a state rehabilitative statute. Both Lujan’s and Roland’s petitions involve first time drug offenses for simple possession and were expunged under state law. Therefore, both petitioners may not be deported on account of these offenses. For the foregoing reasons, the petition for review is granted and petitioners’ removal orders are vacated.” supra at 929.

The aliens in Lujan were operating under the global “expungement” statute of Penal Code 1203.4 which deals with the entire universe of probationers.

Here, the Prop 36 statute is much closer to the FOFA statute as it only applies to narcotics and only applies to First Offenders.

A. There is no analogous charge of being under the influence and this petitioner would have been eligible for FOFA.

In the instant matter, there is no question that this was a unitary scheme of criminal misconduct and did not involve two discrete incidents.

On May 11, 2001, the Petitioner was arrested for both being under the influence of a controlled substance and for possessing methamphetamine. (104-105 – criminal complaint)

Now, 21 USC 844, by its explicit terms, simply does not criminalize being under the influence, it only criminalizes possession.

It is thus clear that had the petitioner been charged under the federal schema he would have been theoretically eligible for FOFA treatment because it is a legal impossibility to be charged with being under the influence under the federal scheme.

Both the BIA and the 9th Circuit have held that when determining analogous state statutes the “full range of conduct encompassed by the state statute must meet the definition of under the federal statute. U.S. v. Lomas, 30 F.3d. 1191, 1194 (9th Cir. 1994) 1194; Matter of Barret, Int. Dec. 3131

The state statute must include all elements of the offense for which an alien could be convicted and punished under the cited federal laws. Matter of Barret, supra.

Next, the BIA contrasts this situation with Cardenas-Uriate v. INS, 227 F.3d. 1132, 1137 (9th Cir. 2000)

Now, that case is completely inapposite. There the alien was charged with one count and one count only of possession of drug paraphernalia.

The Court had to concede that the federal criminal scheme does not criminalize possession of paraphernalia and the court was looking at the anomalous situation of an alien charged with the very minor charge of a possession of drug paraphernalia being treated worse than an alien convicted of possession for persona use of heroin.

The Cardenas court held that where the charge is a lesser included of the possession then FOFA would apply.

This case is different because the alien would have been charged with simple possession.

Next, the Board state that being under the influence is not a lesser included of the offense of possession of a controlled subtend, however they cite no authority for that proposition for the simple reason that there is none.

Now, during the course of these proceedings there was an argument presented regarding a prior deferred conviction, however, one will search the record in vain for sold proof of this conviction.

The record contains a barely decipherable matter that has a later violation date than the conviction in question. (93) There is no corresponding complaint and there is nothing in the record demo stating that the alien was given the opportunity to respond to this charge.

Finally, and most importantly, the BIA does not address the legal significance of two convictions in the decision.

There is no discussion of FOFA eligibility with a prior, dismissed, conviction.

This is a reviewing court and the legal significance as to any other convictions played no part in their decision.

CONCLUSION

Based on the foregoing, the BIA absued its discretion in finding that the “Prop 36” dismissal would not have been subject to the Federal First offender statute and this matter must be remanded to the BIA for a decision consistent with that finding.

Flavio NUNEZ-REYES, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

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