Margarito Quiroz-Barrera v. Jeffrey Rosen ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 29 2020
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
MARGARITO QUIROZ-BARRERA, No. 17-71328
Agency No. A088-758-196
Petitioner,
v. MEMORANDUM*
JEFFREY A. ROSEN, Acting Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 7, 2020**
Pasadena, California
Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,*** Judge.
Margarito Quiroz-Barrera, a native and citizen of Mexico, petitions for
review of the order of the Board of Immigration Appeals (“BIA”) upholding the
immigration judge’s determination that Quiroz-Barrera is ineligible for
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
***
The Honorable Gary S. Katzmann, Judge for the United States Court of
International Trade, sitting by designation.
cancellation of removal due to a conviction for possession of a controlled
substance. We deny the petition.
1. After Quiroz-Barrera pleaded guilty to felony possession of cocaine in
violation of California Health and Safety Code § 11350(a), the California state
court in January 2002 deferred entry of judgment for 18 months pursuant to a
statutory pretrial diversion program. See CAL. PENAL CODE §§ 1000 et seq.
Among the conditions for that program were that Quiroz-Barrera obey all court
orders, including orders to appear at future hearings. After Quiroz-Barrera failed
to appear as ordered at several hearings, the state court in February 2005
terminated the deferral of judgment, reinstated the criminal proceedings, entered a
judgment of conviction against Quiroz-Barrera in accordance with his previous
plea, and issued a warrant for his arrest. After Quiroz-Barrera was arrested on the
warrant in October 2006, he was sentenced a month later to three years of
probation pursuant to Proposition 36. See CAL. PENAL CODE § 1210.1(a). As a
condition of that probation, Quiroz-Barrera was required to complete a drug
treatment program, see id., and after he did so, the state court in September 2007
set aside his guilty plea and dismissed the charges against him.
In early 2010, removal proceedings were begun against Quiroz-Barrera, who
conceded removability and sought only cancellation of removal under § 240A of
the Immigration and Nationality Act, 8 U.S.C. § 1229b. To be eligible for such
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cancellation of removal, the alien must not have been convicted of a controlled
substance offense. See 8 U.S.C. §§ 1182(a)(2)(A)(i), 1227(a)(2)(B),
1229b(b)(1)(C). Quiroz-Barrera conceded that a conviction under California
Health and Safety Code § 11350(a) counts as a controlled substance offense that
“generally precludes eligibility” for cancellation of removal, and we have held that,
as a general rule, rehabilitative relief under state law does not eliminate a state
criminal conviction for immigration purposes, Ramirez-Castro v. INS, 287 F.3d
1172, 1174 (9th Cir. 2002).
Nonetheless, we also held in Lujan-Armendariz v. INS, 222 F.3d 728 (9th
Cir. 2000), overruled prospectively by Nunez-Reyes v. Holder, 646 F.3d 684 (9th
Cir. 2011) (en banc), that equal protection principles required us, for immigration
purposes, to “‘treat the expungement of a state conviction for simple possession in
the same manner’ as the expungement of a federal conviction for simple
possession” under the Federal First Offender Act (“FFOA”), 18 U.S.C. § 3607.
Nunez-Reyes, 646 F.3d at 688 (citation omitted). Because Quiroz-Barrera was
convicted before Nunez-Reyes overruled Lujan-Armendariz, the rule established in
the latter case still applies to his immigration proceedings. Id. at 694. And
because an expungement under the FFOA does not result in a conviction for any
purpose, 18 U.S.C. § 3607(b), including immigration purposes, see Nunez-Reyes,
646 F.3d at 688, the application of the FFOA here determines whether Quiroz-
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Barrera has a valid conviction for immigration purposes. Accordingly, whether
Quiroz-Barrera still has a “conviction” of a controlled substance offense for
immigration purposes turns on whether, had his state drug offense been prosecuted
federally, he would have met the conditions for expungement of a federal drug
possession conviction under the FFOA. Quiroz-Barrera argued that he met those
conditions, but the immigration judge disagreed and denied his request for
cancellation of removal. The BIA upheld this ruling, and Quiroz-Barrera timely
petitioned for review. See 8 U.S.C. § 1252.
2. Under the FFOA, an otherwise eligible defendant may be placed “on
probation for a term of not more than one year without entering a judgment of
conviction.” 18 U.S.C. § 3607(a). If the defendant successfully completes the
probation, “the court shall, without entering a judgment of conviction, dismiss the
proceedings against the person and discharge him from probation.” Id. But if “the
person violates a condition of his probation,” then the court may proceed with
probation revocation proceedings and sentence the defendant accordingly. Id. We
agree with the BIA that, because Quiroz-Barrera did not comply with the
requirements of his state pretrial diversion program, he does not meet the FFOA’s
requirement that he not have violated a condition of prejudgment probation.
Although Quiroz-Barrera’s pretrial diversion under Penal Code § 1000.1
was not formally denominated under state law as “probation,” it is in all relevant
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respects equivalent to the prejudgment probation program under the FFOA. Just as
with a federal defendant placed on prejudgment probation under the FFOA, the
state court deferred entry of judgment in Quiroz-Barrera’s case, required him to
comply with a specified set of conditions, and placed him under the formal
supervision of probation officials. During that time period, Quiroz-Barrera was
required to “obey all rules and regulations of the probation department,” to
“cooperate with the probation officer in a plan for drug abuse counseling,” to “seek
and maintain training, schooling or employment as approved by the probation
officer,” to “support [his] dependents as directed by the probation officer,” and to
“keep [the] probation officer advised of [his] residence and work and home
telephone numbers at all times.”
Although the California courts, as a matter of state law, have held that
pretrial diversion is not in all respects equivalent to post-conviction probation, see,
e.g., People v. Mazurette, 14 P.3d 227, 231 (Cal. 2001) (“a grant of probation and a
deferred entry of judgment pursuant to [Penal Code] section 1000.1 have many
similarities,” but “the two dispositions have some differences” in light of the
“punitive elements” associated with post-judgment probation), that makes no
difference here. Under the equal protection holding of Lujan-Armendariz, our task
is to apply the FFOA, mutatis mutandis, to state court proceedings that were not
conducted under the FFOA and that therefore may not have been formally labeled
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using the same terminology that the FFOA uses. Because Quiroz-Barrera’s state
pretrial diversion program was in all relevant respects equivalent to the
prejudgment probation program under the FFOA, it counts as “probation” for
purposes of applying the FFOA’s rules.
It follows that, when Quiroz-Barrera failed to comply with the terms of his
state pretrial diversion program, he “violate[d] a condition of his probation” for
FFOA purposes. See 18 U.S.C. § 3607(a); see also Estrada v. Holder, 560 F.3d
1039, 1041–42 (9th Cir. 2009) (despite later state-law expungement, FFOA relief
under Lujan-Armendariz was not available to alien who violated the terms of his
state post-conviction probation), overruled on other grounds by Mellouli v.
Lynch, 575 U.S. 798 (2015). Quiroz-Barrera notes that, after he was convicted and
sentenced to post-conviction probation, he complied with the terms of that
probation and had his conviction expunged under state law. But that does not undo
the fact that he failed to comply with the conditions of his pretrial diversion
program, and that is sufficient to preclude the rule of Lujan-Armendariz from being
applied to him. Quiroz-Barrera’s state conviction thus remains a conviction for
immigration purposes, and the BIA properly concluded that he is statutorily
ineligible for cancellation of removal.
The petition for review is DENIED.
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