Ramirez-Altamirano v. Mukasey ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL RAMIREZ-ALTAMIRANO, 
Petitioner, No. 06-71445
v.
 Agency No.
A92-949-620
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 5, 2008—Pasadena, California
Filed February 4, 2009
Before: Kim McLane Wardlaw and Sandra S. Ikuta,
Circuit Judges, and Jeremy D. Fogel,* District Judge.
Opinion by Judge Wardlaw;
Dissent by Judge Ikuta
*The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
1217
RAMIREZ-ALTAMIRANO v. MUKASEY 1221
COUNSEL
Kevin A. Bove, Escondido, California, for petitioner Joel
Ramirez-Altamirano.
Ronald LeFevre, Office of the District Counsel, Department
of Homeland Security, San Francisco, California; Saul Green-
stein, Holly M. Smith, and Linda S. Wendtland, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for respondent Attorney General
Mukasey.
OPINION
WARDLAW, Circuit Judge:
Joel Ramirez-Altamirano petitions for review of the denial
of his application for cancellation of removal. The Immigra-
tion Judge (“IJ”) and Board of Immigration Appeals (“BIA”)
both found that Ramirez-Altamirano’s prior state conviction
for possession of drug paraphernalia rendered him ineligible
for relief, even though the conviction had been set aside under
state law. Because the IJ and BIA erred in treating the set-
aside conviction as an absolute bar to relief, we grant the peti-
tion and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ramirez-Altamirano was born in Mexico on September 25,
1967. He first entered the United States without inspection in
April 1985, when he was seventeen. He claims to have
resided in the United States continuously since then, although
he admits to returning to Mexico occasionally during that
time period.
In May 2004, the Department of Homeland Security served
Ramirez-Altamirano with a Notice to Appear before an IJ for
1222 RAMIREZ-ALTAMIRANO v. MUKASEY
removal proceedings. Before the IJ, Ramirez-Altamirano con-
ceded that he had entered the country most recently in Sep-
tember 2000, and that he had done so illegally. He informed
the IJ, however, that he would seek cancellation of removal
under 8 U.S.C. § 1229b(b), and, in the alternative, post-
conclusion voluntary departure under 8 U.S.C. § 1229c.
At a hearing in August 2004, the IJ asked Ramirez-
Altamirano’s attorney whether he foresaw any potential bars
to relief. In response, the attorney mentioned that, in 1993,
Ramirez-Altamirano had been convicted of misdemeanor pos-
session of drug paraphernalia under California Health and
Safety Code section 11364.1 His attorney noted, however, that
Ramirez-Altamirano was seeking expungement of the convic-
tion in state court.
On October 19, 2004, Ramirez-Altamirano succeeded in
obtaining relief under a California rehabilitative statute. A
state court found that “good cause” existed to order the con-
viction set aside, the guilty plea withdrawn, a plea of “not
guilty” entered, and the charge dismissed. The court further
ordered that Ramirez-Altamirano be “released from all penal-
ties and disabilities” resulting from the conviction, except that
he would not be relieved of his obligation to disclose the con-
viction “in response to any direct question contained in any
questionnaire or application for public office, for licensure by
any state [or] local agency, or for contracting with the Califor-
nia State Lottery.”
When Ramirez-Altamirano returned to Immigration Court
in April 2005, the IJ considered whether the set-aside convic-
1
Section 11364 makes it “unlawful to possess an opium pipe or any
device, contrivance, instrument, or paraphernalia used for unlawfully
injecting or smoking” certain controlled substances. Cal. Health & Safety
Code § 11364(a). As applied to section 11364, “drug paraphernalia”
means “all equipment, products and materials of any kind which are
designed for use or marketed for use, in [injecting or smoking the relevant
controlled substances].” Id. § 11014.5(a).
RAMIREZ-ALTAMIRANO v. MUKASEY 1223
tion affected his claim for cancellation of removal. Under 8
U.S.C. § 1229b(b)(1)(C), cancellation of removal is not avail-
able to nonpermanent residents who have been convicted of
a controlled substance offense. Ramirez-Altamirano’s attor-
ney argued, however, that because the conviction had been
expunged under state law, it no longer precluded immigration
relief. In support, he cited our opinion in Lujan-Armendariz
v. INS, 222 F.3d 728 (9th Cir. 2000), which held that federal
drug convictions expunged under the Federal First Offender
Act (“FFOA”), 18 U.S.C. § 3607, could not be used for immi-
gration purposes, 222 F.3d at 749-50, and that “no rational
basis exists . . . for denying relief to identically situated aliens
who qualify for similar treatment under state expungement
laws,” id. at 743 n.24.
The IJ rejected Ramirez-Altamirano’s argument, determin-
ing that the conviction retained its immigration consequences
despite having been set aside in state court. The IJ found that
the conviction could be used against Ramirez-Altamirano for
immigration purposes because, by the terms of the state
court’s order, it retained certain consequences under state law
—specifically, the requirement to disclose the conviction
upon request when applying “for public office, for licensure
by any state or local agency, or for contracting with the Cali-
fornia State Lottery.” The IJ also explained that Ramirez-
Altamirano’s “reliance on Lujan-Armendariz [was] mis-
placed,” because that case involved “the crime of simple pos-
session of a controlled substance” for which one could receive
relief under the FFOA, 18 U.S.C. § 3607. The IJ concluded
that Ramirez-Altamirano’s conviction was “different, in [that]
it is for possession of drug paraphernalia.”
That Ramirez-Altamirano’s conviction retained its immi-
gration consequences had “two profound impacts on his eligi-
bility for cancellation of removal.” First, the conviction
precluded relief under 8 U.S.C. § 1229b(b)(1)(C), which lim-
its cancellation of removal to those nonpermanent residents
who have not been convicted of a controlled substance
1224 RAMIREZ-ALTAMIRANO v. MUKASEY
offense. Second, the conviction served as a “stop-time event,”
terminating (in a virtual sense) Ramirez-Altamirano’s “physi-
cal presence” in the United States. Because the conviction
occurred in 1993, eight years after his initial entry in 1985,
Ramirez-Altamirano could not demonstrate the ten years of
continuous physical presence required by 8 U.S.C.
§ 1229b(b)(1)(A) for eligibility for cancellation of removal.
The IJ therefore denied Ramirez-Altamirano’s application.2
On appeal, the BIA adopted and affirmed the IJ’s denial of
Ramirez-Altamirano’s application for cancellation of
removal. The Board agreed that the 1993 conviction “ren-
dered [Ramirez-Altamirano] ineligible for cancellation of
removal.” It concluded that the IJ did not err “in finding that
[Ramirez-Altamirano] failed to meet his burden of proving
that his expunged controlled substances conviction no longer
qualified as a conviction for immigration purposes.” The BIA
also agreed that the conviction, which occurred “less than 10
years after [Ramirez-Altamirano] first entered the United
States,” “precluded him from accruing the period of continu-
ous physical presence required for cancellation of removal.”
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review the BIA’s determination that a controlled substance
conviction precludes immigration relief as a matter of law.
See de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th
Cir. 2007).
We review the BIA’s legal determinations de novo. See
Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 983 (9th Cir.
2006). When, as here, the BIA adopts a portion of the IJ’s
decision, we review that portion of the IJ’s decision as if it
2
The IJ suggested that there might be other problems with Ramirez-
Altamirano’s application, but he declined to reach any of those issues
because he found the drug paraphernalia conviction dispositive.
RAMIREZ-ALTAMIRANO v. MUKASEY 1225
were the BIA’s. See Molina-Estrada v. INS, 293 F.3d 1089,
1093 (9th Cir. 2002). Our review is limited to the actual
grounds relied upon by the BIA. Andia v. Ashcroft, 359 F.3d
1181, 1184 (9th Cir. 2004). “If we conclude that the BIA’s
decision cannot be sustained upon its reasoning, we must
remand to allow the agency to decide any issues remaining in
the case.” Id.III. DISCUSSION
The IJ held, and the BIA summarily agreed, that Ramirez-
Altamirano’s prior conviction for possession of drug para-
phernalia rendered him ineligible for cancellation of removal,
even though the conviction had been set aside through a state
rehabilitative statute. The IJ acknowledged that, under our
decision in Lujan-Armendariz, 222 F.3d 728, certain
expunged state drug convictions cannot be treated as “convic-
tions” for immigration purposes. Yet, the IJ held that Lujan-
Armendariz did not apply for two reasons: (1) Ramirez-
Altamirano’s conviction was for possession of drug parapher-
nalia as opposed to possession of drugs; and (2) under the
terms of the state court’s set-aside order, Ramirez-Altamirano
was required to disclose the conviction on certain state-
specific questionnaires and applications. We conclude that
neither of these grounds supports the IJ’s conclusion that
Ramirez-Altamirano’s conviction retained its immigration
consequences.
A. The Immigration Consequences of Expunged State
Convictions
A nonpermanent resident seeking cancellation of removal
must meet four threshold requirements. 8 U.S.C.
§ 1229b(b)(1). Specifically, the alien must:
(A) [have] been physically present in the United
States for a continuous period of not less than 10
1226 RAMIREZ-ALTAMIRANO v. MUKASEY
years immediately preceding the date of such appli-
cation;
(B) [have] been a person of good moral character
during such period;
(C) [have] not been convicted of an offense [that
would render the alien inadmissible under 8 U.S.C.
§ 1182(a)(2), or deportable under 8 U.S.C.
§ 1227(a)(2)-(3)], subject to [certain exceptions for
victims of domestic violence]; and
(D) establish[ ] that removal would result in excep-
tional and extremely unusual hardship to the alien’s
spouse, parent, or child, who is a citizen of the
United States or alien lawfully admitted for perma-
nent residence.
Id. In analyzing the first requirement, “any period of . . . con-
tinuous physical presence in the United States shall be
deemed to end . . . when the alien has committed an offense”
referred to in 8 U.S.C. § 1182(a)(2) that renders the alien
inadmissible under that provision, or removable under 8
U.S.C. § 1227(a)(2) or (a)(4). Id. § 1229b(d)(1). Under
§ 1182(a)(2), an alien convicted of a crime “relating to a con-
trolled substance” is deemed inadmissible, subject to certain
exceptions for youthful offenders or minor offenses. Id.
§ 1182(a)(2)(i), (ii). Therefore, a prior drug conviction theo-
retically can affect a nonpermanent resident’s eligibility for
cancellation of removal in either of two ways: (1) It can ren-
der the alien directly ineligible under § 1229b(b)(1)(C); and
(2) it can terminate the alien’s “continuous physical pres-
ence,” thereby precluding eligibility under § 1229b(b)(1)(A)
and § 1229b(d)(1). But see Sinotes-Cruz v. Gonzales, 468
F.3d 1190, 1202-03 (9th Cir. 2006) (holding that the stop-time
rule of § 1229b(d)(1) does not apply retroactively to crimes
before 1996).
RAMIREZ-ALTAMIRANO v. MUKASEY 1227
[1] Ramirez-Altamirano argues that his prior conviction for
possession of drug paraphernalia does not render him ineligi-
ble for relief because the California court set aside the convic-
tion pursuant to a state rehabilitative statute.3 The BIA has
followed a general rule that “[f]or immigration purposes, a
person continues to stand convicted of an offense notwith-
standing a later expungement under a state’s rehabilitative
statute.” Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th
Cir. 2002). Although we have explained that the BIA’s inter-
pretation is only one of many plausible readings of our immi-
gration laws, we have generally deferred to the BIA’s rule
when considering the effect of expunged state convictions.
See id.; Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.
2001).
3
Many jurisdictions, including California, have adopted rehabilitative
statutes to reduce the long-term impact of criminal convictions on individ-
uals who subsequently demonstrate a period of good behavior following
their adjudication. See Lujan-Armendariz, 222 F.3d at 734-35. These take
several forms:
In some types, which we will refer to as “vacatur” or “set-aside”
laws, a formal judgment of conviction is entered after a finding
of guilt, but then is erased after the defendant has served a period
of probation or imprisonment and his conviction is ordered dis-
missed by the judge. . . . In other types, which we will refer to
as “deferred adjudication” laws, no formal judgment of convic-
tion or guilt is ever entered. Instead, after the defendant pleads or
is found guilty, entry of conviction is deferred, and then during
or after a period of good behavior, the charges are dismissed and
the judge orders the defendant discharged.
Id. at 734 n.11. The primary effect of any of these statutes is to remove
the legal consequences of a conviction. Many of the statutes, however, still
allow or require disclosure of the conviction in certain circumstances, see,
e.g., Mont. Code Ann. § 46-18-204 (2007) (allowing “public access to the
[records and data relating to the dismissed charge] . . . by district court
order upon good cause shown”), while others go further and expunge not
only the conviction but also the entire arrest, see 18 U.S.C. § 3607(c) (pro-
viding a special, enhanced provision for youthful offenders). For simplic-
ity, we generally use the term “expungement” to describe the effect, even
when it is to some extent a misnomer. Lujan-Armendariz, 222 F.3d at 734
n.11.
1228 RAMIREZ-ALTAMIRANO v. MUKASEY
[2] However, although state rehabilitative statutes generally
do not strip a conviction of its immigration consequences, the
federal rehabilitative statute known as the Federal First
Offender Act does. The FFOA provides relief for first-time
defendants found guilty of drug possession. 18 U.S.C. § 3607.
If the defendant has not previously been convicted of a federal
or state controlled substance offense and has not previously
been a beneficiary of the FFOA, the court may place him on
probation without entering a judgment of conviction. Id.§ 3607(a). At the end of the probation term, if the defendant
has not violated any of the conditions of probation, the court
will dismiss the proceedings and discharge the defendant
without entering a judgment of conviction. Id. Moreover, if
the defendant was less than twenty-one years old at the time
of the offense, the court not only will dismiss the charges, but
also will expunge all references to the arrest itself from most
official records. Id. § 3607(c).4 Because nothing indicates that
Congress intended to create an immigration-based exception
to the FFOA, we have held that deferred convictions may not
be treated as “convictions” for immigration purposes when
the proceedings are later dismissed under the FFOA. See
Lujan-Armendariz, 222 F.3d at 743-49; see also Garberding
v. INS, 30 F.3d 1187, 1189-91 (9th Cir. 1994).
[3] Given that the FFOA provides immigration relief for
first-time defendants found guilty of drug possession in fed-
eral court, the Equal Protection Clause requires a parallel
exception for similarly situated defendants prosecuted in state
court. Lujan Armendariz, 222 F.3d at 749; Paredes-
Urrestarazu v. INS, 36 F.3d 801, 811-12 (9th Cir. 1994); Gar-
berding, 30 F.3d at 1191. We have held that there is no ratio-
4
The FFOA therefore provides two distinct forms of relief—one avail-
able for all defendants, and the other available only for those who were
less than twenty-one years old at the time of the offense. See In re Man-
rique, 21 I. & N. Dec. 58, 61 n.4 (BIA 1995) (“[T]he expungement provi-
sions of 18 U.S.C. § 3607(c) . . . are separate from and in addition to the
requirements for dismissal of the proceedings of a first offender under
§ 3607(a).”).
RAMIREZ-ALTAMIRANO v. MUKASEY 1229
nal basis for denying immigration relief based on the mere
happenstance that the individual was prosecuted by the state
rather than by the federal government. See Lujan-Armendariz,
222 F.3d at 743 n.24. We also have found no rational basis
for denying immigration relief merely because a state rehabil-
itative statute’s procedural and structural details differed from
those of the FFOA. See id. at 738 n.18 (“[T]he critical ques-
tion is not the nature of the state’s expungement statute but
rather what [the petitioner] did.” (second alteration in origi-
nal) (internal quotation marks omitted)); Garberding, 30 F.3d
at 1190-91. Instead, the Equal Protection Clause requires that
the immigration benefits of the FFOA be extended to those
individuals granted relief under state rehabilitative statutes
who “would have been eligible for relief under the [FFOA]
had their offenses been prosecuted as federal crimes.” Lujan-
Armendariz, 222 F.3d at 749.5
5
Contrary to the assertion of the dissent, our approach in Lujan-
Armendariz is entirely consistent with our recent en banc decision in
Abebe v. Mukasey, No. 05-76201, 2009 WL 50120 (9th Cir. Jan. 5, 2009)
(en banc) (per curiam). None of the statutory provisions before us in
Lujan-Armendariz was at issue in Abebe. See id. at *1-*2 (addressing
whether the petitioner was eligible for a discretionary waiver of deporta-
tion under former Immigration and Nationality Act § 212(c), 8 U.S.C.
§ 1182(c) (repealed 1996)). Not surprisingly, therefore, we did not address
Lujan-Armendariz or any of its progeny. The dissent nevertheless attempts
to manufacture a conflict where none in fact exists by repeatedly quoting
out of context two general statements from Abebe. See Dissent at 1247-48,
1248, 1256. Neither statement undermines our decision in Lujan-
Armendariz or here. First, the dissent quotes Abebe for the unremarkable
proposition that “ ‘Congress has particularly broad and sweeping powers
when it comes to immigration, and is therefore entitled to an additional
measure of deference when it legislates as to admission, exclusion,
removal, naturalization or other matters pertaining to aliens.’ ” Id. at 1247-
48 (quoting Abebe, 2009 WL 50120, at *2). The extensive discussion of
congressional intent in Lujan-Armendariz demonstrates our awareness of
these “broad and sweeping powers.” See, e.g., 222 F.3d at 736-37, 742,
745. Second, the dissent relies on Abebe’s articulation of the rational basis
test (which is consistent with the Supreme Court’s articulation), to support
its argument that “we [must] revisit Lujan-Armendariz.” Id. at 1248. How-
ever, both Lujan-Armendariz and this opinion employ the very test quoted
by the dissent. That the dissent simply disagrees with the unanimous three-
1230 RAMIREZ-ALTAMIRANO v. MUKASEY
[4] Federal convictions deferred under the FFOA and state
convictions expunged under the rationale of Lujan-
Armendariz no longer qualify as convictions for immigration
purposes. See id. at 742-43. Therefore, if Ramirez-
Altamirano’s set-aside conviction is considered expunged
under Lujan-Armendariz, both grounds upon which the IJ
denied Ramirez-Altamirano’s application are invalid. First,
the conviction will not directly preclude eligibility for cancel-
lation for removal under 8 U.S.C. § 1229b(b)(1)(C). Second,
the conviction will not terminate Ramirez-Altamirano’s “con-
tinuous physical presence” under 8 U.S.C. § 1229b(b)(1)(A)
and § 1229b(d)(1).6 See, e.g., In re Mandigma, No. A43 022
132, 2008 WL 1734632 (BIA 2008) (“[T]he respondent’s
1997 possession offense [expunged under Lujan-Armendariz]
judge panel’s application of this test in Lujan-Armendariz is hardly a rea-
son for revisiting a decision that has been good law in our circuit for
almost a decade.
The out-of-circuit cases cited by the dissent also fail to provide a reason
for revisiting Lujan-Armendariz. See Dissent at 1247-48. While some of
our sister circuits have reached different conclusions as to what constitutes
a “conviction” for purposes of immigration law, we are nonetheless com-
pelled to follow the well-reasoned conclusion in Lujan-Armendariz, as
other panels of our court have done. See, e.g., Cardenas-Uriarte v. INS,
227 F.3d 1132, 1136-37 (9th Cir. 2000).
6
The dissent acknowledges that the BIA relied on only these two
grounds in rejecting Ramirez-Altamirano’s appeal, and that our review is
limited to the grounds on which the BIA actually relied; yet, it neverthe-
less proceeds to analyze an issue that the BIA did not even mention—
whether an alien who receives a term of jail, as opposed to a term of pro-
bation, could have qualified for and received expungement of the offense
under the FFOA. See Dissent at 1250-51. This issue has yet to be squarely
addressed in our circuit, see Lujan-Armendariz, 222 F.3d at 738 n.18, and
we are not bound to follow the decisions reached by a few of our sister
circuits, see Dissent at 1251-52 (citing cases). In any event, because the
BIA did not rely on the fact that Ramirez-Altamirano received a sentence
of five days’ imprisonment in rejecting his appeal, we do not reach the
question left open in Lujan-Armendariz. See Andia, 359 F.3d at 1184 (“In
reviewing the decision of the BIA, we consider only the grounds relied
upon by that agency.”).
RAMIREZ-ALTAMIRANO v. MUKASEY 1231
does not make him inadmissible to the United States under
section 212(a)(2) of the Act, and the stop-time rule did not
end the respondent’s continuous residence . . . .”).
B. Possession of Drug Paraphernalia
[5] The IJ distinguished Lujan-Armendariz on the ground
that Ramirez-Altamirano was convicted of possession of drug
paraphernalia, while the FFOA applies to offenders charged
only with possession of drugs. We rejected the identical argu-
ment in Cardenas-Uriarte, 227 F.3d at 1137. Because there
is no rational basis for treating individuals found guilty of
possessing drug paraphernalia more harshly than those found
guilty of possessing the actual drugs themselves, we again
reject this reason as a basis for denying Ramirez-Altamirano
relief.
[6] In Cardenas-Uriarte, the petitioner originally was
charged with two counts of possession of drugs but eventually
pled guilty to the lesser offense of possession of drug para-
phernalia. 227 F.3d at 1137. We noted that, on its face, the
FFOA appears to cover only individuals found guilty of actual
drug possession. Id. However, Congress had no need to
include possession of drug paraphernalia explicitly under the
FFOA because no federal statute made such possession a
crime. Id. We held that possession of drug paraphernalia was
implicitly included under the FFOA because to conclude oth-
erwise “would frustrate congressional intent and lead to an
absurd result.” Id. Congress intended the FFOA to provide
relief for first-time offenders convicted of the least serious
drug offenses. Id. It would be an absurd result if a defendant
found guilty of drug possession would qualify for FFOA
relief, but one who pled guilty only to possession of drug par-
aphernalia would still be considered “convicted” of a con-
trolled substance offense for immigration purposes. Id.Therefore, “[w]here possession of drug paraphernalia is a less
serious offense than simple possession of a controlled sub-
1232 RAMIREZ-ALTAMIRANO v. MUKASEY
stance . . . , congressional intent indicates that it should be
included under the [FFOA].” Id.That the reasoning in Cardenas-Uriarte applies squarely to
the facts of this case is not disputed by our dissenting col-
league. See Dissent at 1250. Ramirez-Altamirano originally
was charged both with possession of drugs under California
Heath and Safety Code section 11350 and possession of drug
paraphernalia under section 11364 of the same code.
Ramirez-Altamirano eventually pled guilty only to the drug
paraphernalia charge, a misdemeanor under state law. See
Cal. Health & Safety Code § 11364. If he had instead pled
guilty to the more serious drug possession charge, Ramirez-
Altamirano’s conviction would have qualified him for relief
under the FFOA. The structure of his plea agreement obvi-
ously was intended to minimize his culpability by allowing
him to avoid facing the more serious drug possession charge,
and reflects the state’s view as to the seriousness of the
offense. We can conceive of no rational basis for treating
Ramirez-Altamirano more harshly than a federal defendant
found guilty of possessing drugs who would be eligible for
immigration relief under the FFOA.
[7] We acknowledged in Cardenas-Uriarte that a state stat-
ute criminalizing possession of drug paraphernalia could, in
theory, be more serious than one criminalizing simple drug
possession. 227 F.3d at 1137 n.6. As an example, we imag-
ined a statute that also criminalized “possession of the ingre-
dients and machinery to create methamphetamine.” Id. We
continue to agree that, if such a statute exists, convictions
thereunder might be meaningfully distinguished from the drug
possession convictions eligible for relief under the FFOA
exception. However, the California statute under which
Ramirez-Altamirano was convicted does not raise such con-
cerns. California Health and Safety Code section 11364 pro-
hibits only the possession of a “device, contrivance,
instrument, or paraphernalia used for unlawfully injecting or
smoking” certain controlled substances. If Congress intended
RAMIREZ-ALTAMIRANO v. MUKASEY 1233
the FFOA to “permit[ ] first-time drug offenders who commit
the least serious type of drug offense to avoid the drastic con-
sequences” that follow from a criminal conviction, Lujan-
Armendariz, 222 F.3d at 735, it would be absurd to deny relief
to individuals who possess the utensils incidental to drug
ingestion but grant relief to those who possess the actual illicit
drugs. Therefore, under Cardenas-Uriarte, persons convicted
for possession of drug paraphernalia under California Health
and Safety Code section 11364 are eligible for the same
immigration treatment as those convicted of drug possession
under the FFOA, and the IJ erred as a matter of law by deny-
ing Ramirez-Altamirano’s application for cancellation of
removal on this ground.
C. The Terms of Expungement under State Law
In the alternative, the IJ found that Ramirez-Altamirano’s
conviction was not expunged for immigration purposes
because “[t]he [state court] order itself, by its plain language,
shows that even for the State of California, the respondent has
a conviction, at least for disclosing it for public office, for
seeking a license by any State or local agency, and for even
contracting with the California State lottery.” Because “the
critical question is not the nature of the state’s expungement
statute but rather what [the petitioner] did,” Lujan-
Armendariz, 222 F.3d at 738 n.18 (alteration in original)
(internal quotation marks omitted), we conclude that this was
also an improper ground upon which to deny Ramirez-
Altamirano relief.
We note that the title of the expungement order does not
reflect the nature of the order itself. The state court order is
entitled “ORDER DISMISSING ACCUSATION AGAINST
PROBATIONER [PENAL CODE § 1203.4a].” This descrip-
tion is oxymoronic, because California Penal Code section
1203.4a applies only to defendants “not granted probation.”
Cal. Penal Code § 1203.4a(a). The similar expungement relief
accorded to probationers is set forth in California Penal Code
1234 RAMIREZ-ALTAMIRANO v. MUKASEY
section 1203.4. Moreover, section 1203.4, unlike section
1203.4a, requires that the order state that it “does not relieve
[the probationer] of the obligation to disclose the conviction
in response to any direct question contained in any question-
naire or application for public office, for licensure by any
state or local agency, or for contracting with the California
State Lottery.” Id. § 1203.4(a). The state court’s order recited
this text nearly verbatim, suggesting that Ramirez-Altamirano
actually was granted relief under section 1203.4 and the cap-
tion’s description of the order misstates the applicable statute.
Under either statute, the set-aside conviction retains certain
residual consequences under state law. Under California
Vehicle Code section 13555, relief granted under either sec-
tion 1203.4 or section 1203.4a will not reinstate a defendant’s
driving privileges if they were revoked or suspended as a
result of the original conviction. For certain violent offenses,
a defendant still may be prohibited from possessing or con-
trolling a firearm after his conviction is dismissed under sec-
tion 1203.4a. Cal. Penal Code § 12021.1(a). As described
above, convictions set aside under section 1203.4 must be dis-
closed on certain questionnaires. Finally, under either statute,
a prior set-aside conviction may be “pleaded and proved” if
the defendant is prosecuted for another offense in the future.
Cal. Penal Code §§ 1203.4, 1203.4a. Other than these narrow
exceptions, however, both statutes dictate that the defendant
“be released from all penalties and disabilities resulting from
the offense of which he or she has been convicted.” Id.§§ 1203.4(a), 1203.4a(a).
[8] Although we have never addressed explicitly the extent
to which a conviction must be “expunged” under state law
before invoking the equal protection concerns articulated in
Lujan-Armendariz, our analysis consistently has focused on
whether aliens “would have been eligible for relief under the
[FFOA] had their offenses been prosecuted as federal
crimes,” 222 F.3d at 749, rather than on the intricacies of the
state rehabilitative statutes in question, id. at 738 n.18.
RAMIREZ-ALTAMIRANO v. MUKASEY 1235
We first addressed the equal protection ramifications of the
FFOA in Garberding, 30 F.3d 1187. At that time, the BIA
had long acknowledged that an alien granted relief under the
FFOA did not have a “conviction” for immigration purposes,
and it similarly held that defendants granted relief under a
state counterpart to the FFOA should be given the same treat-
ment. See Matter of Deris, 20 I. & N. Dec. 5, 11 (BIA 1989);
Matter of Werk, 16 I. & N. Dec. 234, 236-37 (BIA 1977)
(concerning the predecessor statute to the current FFOA).
However, in determining whether a state defendant was cov-
ered under this rule, the BIA generally focused on the proce-
dural details of the state rehabilitative statute in question. In
Garberding, for example, the BIA had concluded that Mon-
tana’s rehabilitative statute was not a “state counterpart” to
the FFOA because it applied to a broad range of offenses
more serious than simple drug possession. 30 F.3d at 1189-90.
We held that even if the statute in question was broader than
the FFOA, there was no rational basis for denying Garberding
relief because her state conviction for possession of marijuana
would have qualified her for relief under the FFOA had it
been brought federally. Id. at 1190-91. The immigration con-
sequences of a set-aside conviction could not turn on whether
it happened to occur in a state whose rehabilitation statute was
an exact counterpart to the FFOA. Id. at 1191.
In our subsequent cases, we reiterated that “the relevant
question is whether the person involved could have received
relief under the [FFOA] and does receive relief under a state
rehabilitative statute.” Lujan-Armendariz, 222 F.3d at 738
n.18; see also Cardenas-Uriarte, 227 F.3d at 1136 (“If [the
petitioner] would have been eligible for first offender treat-
ment under federal law, he would not stand ‘convicted’ for
purposes of the immigration laws.”); Dillingham v. INS, 267
F.3d 996, 1006 (9th Cir. 2001) (“[T]he INS may not discrimi-
nate against aliens convicted of simple possession offenses
whose subsequent conduct would have qualified them for
FFOA rehabilitation, but for the fact that they were convicted
and rehabilitated under the laws of another sovereign.”). Simi-
1236 RAMIREZ-ALTAMIRANO v. MUKASEY
larly, when we have denied FFOA treatment to an alien con-
victed under state law, it has consistently been because the
alien would not have been eligible for relief under the FFOA.
In some cases, this was because the conviction itself fell out-
side the scope of the FFOA. See, e.g., de Jesus Melendez, 503
F.3d at 1025-26 (concerning a second controlled substance
conviction); Aguiluz-Arellano, 446 F.3d at 983-84 (same);
Ramirez-Castro, 287 F.3d at 1175 (concerning a concealed
weapon conviction).7 In another case, it was because the alien
was not yet eligible for rehabilitative relief. See Chavez-Perez
v. Ashcroft, 386 F.3d 1284, 1290-93 (9th Cir. 2004); see also
id. at 1292-93 (“It would defy common sense to require the
INS to sit on its hands for three years, waiting to see whether
Chavez-Perez will comply with the terms of his probation and
perhaps qualify for future expungement.”).
Moreover, we frequently have found that equal protection
principles required treating state drug possession convictions
7
The dissent’s reliance on Ramirez-Castro is both misplaced and mis-
leading. See Dissent at 1252-54. In Ramirez-Castro, the petitioner was
found deportable by reason of his state court misdemeanor conviction for
carrying a concealed weapon. 287 F.3d at 1173. After his conviction was
expunged pursuant to California Penal Code section 1203.4, the petitioner
filed a motion to reopen with the BIA, which was denied. Id. On appeal,
the petitioner argued that the expungement of his conviction nullified it for
purposes of immigration law. Id. at 1174. In rejecting this argument, we
first determined the petitioner’s firearms conviction was “not within the
scope of the [FFOA].” Id. at 1175. Only after reaching this conclusion did
we turn to the question of whether section 1203.4 could eliminate com-
pletely the immigration consequences of a state conviction, which we
answered in the negative. Id. We reasoned that “[i]n view of the fact that
California Penal Code section 1203.4(a) provides only a limited expunge-
ment even under state law, it is reasonable for the BIA to conclude that
a conviction expunged under that provision remains a conviction for pur-
poses of federal law.” Id. What the dissent fails to make clear is that our
analysis of section 1203.4 was only relevant to whether it provided the
petitioner an independent basis for treating his conviction as expunged. In
other words, had the petitioner’s conviction been within the scope of the
FFOA, he would have been eligible for relief based on our holding in
Lujan-Armendariz.
RAMIREZ-ALTAMIRANO v. MUKASEY 1237
as “expunged” for immigration purposes even when the con-
victions retained certain consequences under state law. The
Montana statute under which Garberding was granted relief
specifically allows for “public access to the [records related
to the dismissed charge] . . . by district court order upon good
cause shown.” Mont. Code Ann. § 46-18-204; Garberding, 30
F.3d at 1189. Similarly, both Lujan-Armendariz and
Cardenas-Uriarte involved Arizona’s rehabilitative statute,
which contains exceptions similar to those in the California
statute at issue here. The Arizona statute specifically exempts
certain penalties and disabilities from release, including sev-
eral imposed by the state’s department of transportation and
the state’s game and fish commission. Ariz. Rev. Stat. § 13-
907(C)(1)-(2) (2006). The statute also allows dismissed con-
victions to “be pleaded and proved in any subsequent prose-
cution . . . for any offense.” Id. § 13-907(C)(1). Cardenas-
Uriarte explicitly mentioned these exceptions, 227 F.3d at
1138, and Lujan-Armendariz similarly noted that the statute
was “subject to some exceptions not relevant here,” 222 F.3d
at 733 n.6 (emphasis added).
[9] The dissent argues that Garberding, Lujan-Armendariz,
and Cardenas-Uriarte are “inapposite[ ] because in none of
them did we consider or even mention the extent to which the
state expungement scheme removed the consequences of a
conviction.” Dissent at 1254. The dissent’s cramped reading
of these cases is unpersuasive. We have repeatedly found that
an individual can be considered to have “receive[d] relief
under a state rehabilitative statute” even when the statute in
question does not expunge a conviction for all purposes.8
Lujan-Armendariz, 222 F.3d at 738 n.18. That we did not
explicitly discuss the scope of the expungement statutes in
8
As we have already discussed, the statute at issue expunges a convic-
tion for almost all purposes, save a few residual consequences under state
law. See Cal. Penal Code §§ 1203.4, 1203.4a. The dissent’s reference to
“the limited nature of the relief provided by section 1203.4a” is thus mis-
leading. Dissent at 1255.
1238 RAMIREZ-ALTAMIRANO v. MUKASEY
these cases does not change the fact that we concluded Lujan-
Armendariz applied notwithstanding the statutory exceptions.
The dissent mischaracterizes our opinion in stating that “the
majority[ ] suggest[s] that the scope of the relief provided by
the state statute is irrelevant.” Id. at 1254. In finding that
Ramirez-Altamirano’s conviction was sufficiently expunged,
we do not conclude that the exceptions contained in an
expungement statue will never be relevant. Rather, we limit
our analysis, as we must, to the statute before us, and hold
that the few residual consequences contained in this statute do
not alter Ramirez-Altamirano’s eligibility for relief.
[10] We are thus bound to apply Lujan-Armendariz’s hold-
ing that “the relevant question is whether the person involved
could have received relief under the [FFOA] and does receive
relief under a state rehabilitative statute.” 222 F.3d at 738
n.18. Accordingly, an alien cannot be deemed “convicted” for
immigration purposes if he can demonstrate that (1) the con-
viction was his first offense; (2) he had not previously been
accorded first offender treatment; (3) his conviction was for
possession of drugs, or an equivalent or lesser charge such as
possession of drug paraphernalia, Cardenas-Uriarte, 227 F.3d
at 1137-38; and (4) he received relief under a state rehabilita-
tive statute.
[11] Ramirez-Altamirano meets each of the first three
requirements, placing him in exactly the position of federal
defendants eligible for relief under the FFOA.9 He also has
been granted relief under a state rehabilitative statute.
Ramirez-Altamirano was “released from all penalties and dis-
9
The government mistakenly argues that to be eligible for relief under
the FFOA, one also must be under twenty-one years old at the time of the
offense. In making this argument, the government conflates the general
deferred adjudication provision in 18 U.S.C. § 3607(a) with the special
provision for expunging youthful offenders’ arrests in § 3607(c). See Mat-
ter of Manrique, 21 I. & N. Dec. at 61 n.4; cf. Paredes-Urrestarazu, 36
F.3d at 812 (considering § 3607(c)’s age cutoff where the petitioner was
challenging the IJ’s consideration of the circumstances of a prior arrest).
RAMIREZ-ALTAMIRANO v. MUKASEY 1239
abilities resulting from the offense of which he . . . [was] con-
victed.” Cal. Penal Code §§ 1203.4(a), 1203.4a(a). Because
the minimal, residual consequences of his conviction under
state law are not relevant here, the IJ erred in denying
Ramirez-Altamirano’s application on that ground.
IV. CONCLUSION
Ramirez-Altamirano’s set-aside conviction for possession
of drug paraphernalia has been expunged, and, under Lujan-
Armendariz, it may not be considered for denial of relief for
immigration purposes. The IJ and the BIA therefore erred in
finding Ramirez-Altamirano statutorily ineligible for cancel-
lation of removal on the basis of that conviction and in find-
ing that the conviction terminated the accrual of his
“continuous physical presence” in the United States. Accord-
ingly, we grant the instant petition and remand to the BIA to
consider whether Ramirez-Altamirano is otherwise eligible
for relief.
PETITION GRANTED; REMANDED for further pro-
ceedings.
IKUTA, Circuit Judge, dissenting:
The majority holds that an alien convicted of the state
offense of possession of drug paraphernalia and given limited
relief under a state expungement scheme does not have a
“conviction” for purposes of determining whether an alien is
inadmissible under 8 U.S.C. § 1182(a)(2) or deportable under
8 U.S.C. § 1227(a)(2). According to the majority, the Equal
Protection Clause compels this ruling, because aliens con-
victed of certain federal drug crimes expunged under the Fed-
eral First Offender Act (FFOA) do not have a “conviction” for
purposes of determining inadmissibility or deportability under
§§ 1182(a)(2) and 1227(a)(2). The majority is wrong. The
1240 RAMIREZ-ALTAMIRANO v. MUKASEY
Equal Protection Clause does not compel us to invalidate a
distinction between aliens who receive relief under the FFOA
and aliens who receive relief under state law, because
“[d]istinctions between different classes of aliens in the immi-
gration context are subject to rational basis review and must
be upheld if they are rationally related to a legitimate govern-
ment purpose.” Aguilera-Montero v. Mukasey, 548 F.3d 1248,
1252 (9th Cir. 2008) (quoting Avila-Sanchez v. Mukasey, 509
F.3d 1037, 1041 (9th Cir. 2007)). Before we may invalidate
such a distinction, it must “be wholly irrational.” Id. (quoting
de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir. 2004).
Here, there is a rational reason to distinguish between aliens
whose convictions are expunged under the FFOA and those
who obtain limited relief under the sort of state scheme at
issue in this case. I therefore respectfully dissent.
I
The Immigration and Nationality Act authorizes the Attor-
ney General to cancel removal of a qualified alien who is
inadmissible to, or deportable from, the United States. 8
U.S.C. § 1229b. To be eligible for this relief, an alien must,
among other things, not have a conviction for a drug-related
offense, as defined in 8 U.S.C. § 1182(a)(2) and 8 U.S.C.
§ 1227(a)(2). See 8 U.S.C. § 1229b(b)(1)(C). Under the INA
definition of conviction, an alien has a “conviction” whether
or not the alien’s sentence is subsequently expunged. See 8
U.S.C. § 1101(a)(48)(A). Yet, beginning with our 1994 deci-
sion in Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994), we
have step-by-step rewritten the definition of “conviction” for
purposes of immigration law. Previous cases detail this pro-
cess, see, e.g., Chavez-Perez v. Ashcroft, 386 F.3d 1284,
1287-90 (9th Cir. 2004), Lujan-Armendariz v. INS, 222 F.3d
728, 734-43 (9th Cir. 2000), but a brief review is necessary
to understand why, even in light of existing precedent, the
majority now extends our equal protection jurisprudence too
far.
RAMIREZ-ALTAMIRANO v. MUKASEY 1241
A
Section 241(a)(11) of the Immigration and Nationality Act
of 1952, 66 Stat. 204, codified at 8 U.S.C. 1251(a)(11)
(1952), provided that any alien “convicted of a violation of,
or a conspiracy to violate, any law or regulation relating to the
illicit possession of or traffic in narcotic drugs” or other drug
crimes was subject to deportation upon order of the Attorney
General. Matter of A-F-, 8 I. & N. Dec. 429, 441 (1959)
(Att’y Gen.). At that time, the Act did not define the words
“convicted” or “conviction.” In 1959, the Attorney General
took the position that, given the “continuing and serious Fed-
eral concern” regarding drug trafficking, “Congress did not
intend that aliens convicted of narcotic violations should
escape deportation because, as in California, the State affords
a procedure authorizing a technical erasure of the conviction.”
Id. at 445.
In 1970, Congress enacted the FFOA to provide relief for
persons convicted of simple possession of a controlled sub-
stance as a first offense. In consideration of this enactment,
the BIA held that a conviction expunged under the FFOA or
“under a state law which is the counterpart” of the FFOA
could not serve as the basis for deportation. Matter of Werk,
16 I. & N. Dec. 234, 236 (BIA 1977). In a subsequent deci-
sion regarding the effect of a Maryland expungement statute,
the BIA clarified the meaning of “state law counterpart” by
holding that “if a statute applies to offenders of more serious
drug violations, it will not be considered to be the state equiv-
alent to the [FFOA].” Matter of Deris, 20 I. & N. Dec. 5, 10
(BIA 1989). In light of this determination, the BIA held that,
because the Maryland expungement statute at issue covered
persons guilty of controlled substance offenses that were more
serious than simple possession, it did not qualify as a state
counterpart. Id. at 11.
In Garberding, 30 F.3d at 1190, we rejected this conclusion
on equal protection grounds. In that case, the petitioner
1242 RAMIREZ-ALTAMIRANO v. MUKASEY
pleaded guilty to a charge of marijuana possession under
Montana law, but was allowed to withdraw her guilty plea
and have her charge dismissed under Montana’s expungement
statute. Because a range of more serious offenses was eligible
for expungement, the BIA held that the Montana statute was
not an exact counterpart of the FFOA, and thus the petitioner
was deportable. Id. at 1188. The government contended that
this distinction was rational “because of the differing goals
and results that obtain under the Federal First Offender stat-
ute, as opposed to broader state expunction remedies,” id. at
1190 (internal quotation marks omitted), and because “its pol-
icy of requiring an exact state counterpart effects a consistent
Congressional policy to deal harshly with drug offenders
under the immigration laws [and] to deal strictly with aliens
who violate laws governing controlled substances.” Id. (inter-
nal quotation marks omitted) (alterations in original). We dis-
agreed, concluding that “distinguishing Garberding for
deportation because of the breadth of Montana’s expunge-
ment statute, not because of what she did, has no logical rela-
tion to the fair administration of the immigration laws.” Id. at
1191. Unable to discern a rational basis for distinguishing
between a federal and state expungement scheme (notwith-
standing the reason offered by the government), we held that
the order for Garberding’s deportation violated her right to
equal protection under the Constitution. Garberding, 30 F.3d
at 1190-91.
Following Garberding, the BIA reexamined its position
and held that “an alien who has been accorded rehabilitative
treatment under a state statute will not be deported if he estab-
lishes 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.”
Matter of Manrique, 21 I. & N. Dec. 58, 64 (1995). A year
after Manrique, however, Congress enacted the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), which substantially amended the INA. Among
RAMIREZ-ALTAMIRANO v. MUKASEY 1243
other changes, Congress provided a statutory definition of
“conviction”:
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 with-
held, where—
(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 guilt, and
(ii) the judge has ordered some form of punish-
ment, penalty, or restraint on the alien’s liberty to be
imposed.
8 U.S.C. § 1101(a)(48)(A). As the plain language of this sec-
tion makes clear, an alien who is found guilty, or pleads
guilty, and is subject to a penalty ordered by the court, is con-
sidered convicted for purposes of immigration law. In light of
this new definition, the BIA reexamined its treatment of state
expungement statutes and held that the decision in Manrique
was superseded by IIRIRA:
We therefore interpret the new definition to provide
that an alien is considered convicted for immigration
purposes upon the initial satisfaction of the require-
ments of section 101(a)(48)(A) of the Act, and that
he remains convicted notwithstanding a subsequent
state action purporting to erase all evidence of the
original determination of guilt through a rehabilita-
tive procedure.
Matter of Roldan-Santoyo, 22 I. & N. Dec. 512, 523 (BIA
1999).
1244 RAMIREZ-ALTAMIRANO v. MUKASEY
But in Lujan-Armendariz, we rejected the BIA’s reasoning.
There, a petitioner convicted of attempted possession of
cocaine challenged the BIA’s determination of deportability
under 8 U.S.C. § 1227(a)(2)(B) (a successor to section
241(a)(11) of the INA)1 after Arizona vacated his conviction
and dismissed the charges pursuant to an expungement stat-
ute. 222 F.3d at 733. Our disagreement with the BIA was
based on a two-step analysis. First, after reasoning that Con-
gress’s definition of “conviction” in 18 U.S.C.
§ 1101(a)(48)(A) did not repeal by implication the protection
afforded by the FFOA to first offenders, namely, that a
§ 3607(a) disposition “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.
at 744 (citing 18 U.S.C. § 3607(b)), we construed the FFOA
as carving out an exception to the definition of “conviction”
in § 1101(a)(48)(A). Id. at 745. Second, because a conviction
that qualified for expungement under the FFOA would not
count as a conviction for purposes of 8 U.S.C.
§ 1227(a)(2)(B), we held that the principles of equal protec-
tion required “the benefits of the Act be extended to aliens
whose offenses are expunged under state rehabilitative laws,
provided that they would have been eligible for relief under
the Act had their offenses been prosecuted as federal crimes.”
Lujan-Armendariz, 222 F.3d at 749. We stated, “there is no
rational basis for a federal statute that treats persons adjudged
guilty of a drug offense under state law more harshly than
persons adjudged guilty of the identical offense under federal
law.” Id.Our subsequent decision in Cardenas-Uriarte v. INS, 227
F.3d 1132 (9th Cir. 2000) extended Lujan-Armendariz further.
1
8 U.S.C. § 1227(a)(2)(B)(i) provides, in pertinent part, that:
Any alien who at any time after admission has been convicted of
a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country relat-
ing to a controlled substance . . . is deportable.
RAMIREZ-ALTAMIRANO v. MUKASEY 1245
In Cardenas-Uriarte, we rejected the BIA’s determination
that a petitioner who had been convicted of possession of drug
paraphernalia under Arizona law, and subsequently had his
conviction expunged under a state scheme, was deportable
under 8 U.S.C § 1227(a)(2)(B)(i) for having committed a
crime relating to a controlled substance. Id. at 1137-38.
Although the first step of the Lujan-Armendariz analysis
required the petitioner to have been “adjudged guilty of the
identical offense under federal law,” 222 F.3d at 749, we
bypassed this “identical offense” requirement. Instead, we
inferred that Congress would have intended that a conviction
for possession of drug paraphernalia should be included under
the FFOA when it is “a less serious offense than simple pos-
session of a controlled substance.” Cardenas-Uriarte, 227
F.3d at 1137. From there, we determined that the equal pro-
tection analysis in Lujan-Armendariz applied even though
petitioner’s offense was not an offense that could have quali-
fied for relief under the FFOA. Id. at 1137-38.
In sum, before the decision today, an alien did not have a
“conviction” for immigration purposes if: (1) “adjudged
guilty” of a state crime that was identical to an offense under
federal law, Lujan-Armendariz, 222 F.3d at 749, or of the
state offense of possession of drug paraphernalia, Cardenas-
Uriarte, 227 F.3d at 1137; (2) the offense was expunged
under state law; and (3) the alien would have qualified for and
received expungement of this offense under the FFOA had it
been prosecuted as a federal crime, Lujan-Armendariz, 222
F.3d at 749.
B
The BIA rejected the Lujan-Armendariz analysis. See Mat-
ter of Salazar-Regino, 23 I. & N. Dec. 223 (2002) (concluding
that, “except in the Ninth Circuit, a first-time simple drug pos-
session offense expunged under a state rehabilitative statute is
a conviction under section 101(a)(48)(A) of the Act”).
1246 RAMIREZ-ALTAMIRANO v. MUKASEY
In Acosta v. Ashcroft, the Third Circuit also rejected our
approach. 341 F.3d 218 (3rd Cir. 2003). In that case, a peti-
tioner pleaded nolo contendere to a charge of heroin posses-
sion in violation of Pennsylvania law. Id. at 220. The state
court placed him on probation, and subsequently dismissed
the charges against him without an adjudication of guilt. After
the BIA ruled that the proceeding constituted a “conviction”
for immigration purposes, the petitioner argued for an excep-
tion to the definition of “conviction” based on equal protec-
tion principles, as interpreted in Lujan-Armendariz. Id. at 224.
Judge (now Justice) Alito rejected the petitioner’s argument.
Noting that “[u]nder rational-basis review, a classification
must be upheld against equal protection challenge if there is
any reasonably conceivable state of facts that could provide
a rational basis for the classification,” id. at 226-27 (quoting
FCC v. Beach Communications, Inc., 508 U.S. 307, 313
(1993)), the Third Circuit concluded:
[W]e can easily see a rational basis for a distinction
between aliens whose criminal cases are dismissed
under the federal FFOA and those whose charges are
handled under similar state schemes. Familiar with
the operation of the federal criminal justice system,
Congress could have thought that aliens whose fed-
eral 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. Particularly in view of
Congress’s power in immigration matters, it seems
plain that rational-basis review is satisfied here. As
the Supreme Court recently noted, “[i]n the exercise
RAMIREZ-ALTAMIRANO v. MUKASEY 1247
of its broad power over naturalization and immigra-
tion, Congress regularly makes rules that would be
unacceptable if applied to citizens.” Demore v. Kim,
538 U.S. 510 (2003).
341 F.3d 218, 227 (3rd Cir. 2003).
Other circuits that have considered the effect of IIRIRA’s
definition of “conviction” have likewise rejected our
approach. See Madriz-Alvarado v. Ashcroft, 383 F.3d 321,
332 (5th Cir. 2004) (rejecting Lujan-Armendariz’s equal pro-
tection analysis “as have all the courts of appeals which have
considered it,” and stating that an equal protection challenge
based on the FFOA “is without merit”); Resendiz-Alcaraz v.
U.S. Att’y Gen., 383 F.3d 1262, 1272 (11th Cir. 2004) (reject-
ing Lujan-Armendariz’s equal protection analysis because “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”);
Elkins v. Comfort, 392 F.3d 1159, 1163-64 (10th Cir. 2004)
(noting the “prevailing view in other circuits” that “there is a
rational basis for distinguishing even state-court dispositions
from those under the FFOA,” and holding there is a rational
basis for denying a petitioner convicted under Korean law the
benefit of the FFOA); Gill v. Ashcroft, 335 F.3d 574, 577-78
(7th Cir. 2003) (rejecting Lujan-Armendariz’s analysis and
noting that every other court that has considered the subject
has concluded that state law expungements “do not negate a
‘conviction’ for purposes of immigration law”); see also
Vasquez-Velezmoro v. INS, 281 F.3d 693, 697 (8th Cir. 2002)
(declining to adopt the holding and reasoning of Lujan-
Armendariz, but concluding that petitioner’s equal protection
claim failed because the petitioner was not similarly situated
to a person eligible for FFOA treatment); Herrera-Inirio v.
INS, 208 F.3d 299, 309 (1st Cir. 2000) (holding that
§ 1101(a)(48)(A) passes rational basis review in the context
of a substantive due process challenge because it advances
1248 RAMIREZ-ALTAMIRANO v. MUKASEY
“the government’s need for a nationally uniform definition of
the term ‘conviction’ for immigration purposes”).
More important, our approach in Lujan-Armendariz is
inconsistent with our en banc decision in Abebe v. Mukasey,
___F.3d___, 2009 WL 50120 (9th Cir. 2009) (en banc) (per
curiam). In that case, we noted that “Congress has particularly
broad and sweeping powers when it comes to immigration,
and is therefore entitled to an additional measure of deference
when it legislates as to admission, exclusion, removal, natu-
ralization or other matters pertaining to aliens.” Abebe, 2009
WL 50120, at *2. Once we identify “a rational reason Con-
gress may have had in adopting [the law],” our analysis must
end. Id. This conclusion is consistent with direction from the
Supreme Court. In determining whether a federal classifica-
tion “allowing benefits to some aliens but not to others is per-
missible,” we must not “substitute our judgment for that of
Congress.” Mathews v. Diaz, 96 S. Ct. 1883, 1892, 1893
(1976); see also F.C.C. v. Beach Communications, Inc., 508
U.S. 307, 313 (1993) (“Whether embodied in the Fourteenth
Amendment or inferred from the Fifth, equal protection is not
a license for courts to judge the wisdom, fairness, or logic of
legislative choices. In areas of social and economic policy, a
statutory classification that neither proceeds along suspect
lines nor infringes fundamental constitutional rights must be
upheld against equal protection challenge if there is any rea-
sonably conceivable state of facts that could provide a rational
basis for the classification.”). Here, as Acosta and the deci-
sions from other circuits make clear, it is easy to identify a
rational reason for making “a distinction between aliens
whose criminal cases are dismissed under the federal FFOA
and those whose charges are handled under similar state
schemes.” Acosta, 341 F.3d at 227. Accordingly, our en banc
decision in Abebe and the Supreme Court’s equal protection
jurisprudence counsel that we revisit Lujan-Armendariz, not
that we extend further its erroneous determination that the
Equal Protection Clause compels us to exclude from the defi-
RAMIREZ-ALTAMIRANO v. MUKASEY 1249
nition of “conviction” in 8 U.S.C. § 1101(a)(48)(A) certain
state drug convictions expunged under state law.
II
But even if we do not revisit our equal protection analysis,
which has roamed far from the standards set by the Supreme
Court, I would conclude that Ramirez is not entitled to immi-
gration relief under either our case law or the Equal Protection
Clause. The basis for this conclusion is straightforward:
Ramirez simply did not obtain relief analogous to that pro-
vided by the FFOA.
In 1993, Ramirez was convicted under section 11364 of the
California Health and Safety Code for possession of drug par-
aphernalia and was sentenced to five days in jail. Ramirez
was subsequently granted relief under section 1203.4a of the
California Penal Code,2 which provides that a defendant con-
victed of a misdemeanor and not granted probation can “be
released from all penalties and disabilities resulting from the
offense of which he or she has been convicted, except as pro-
vided in section 12021.1 of this code or section 13555 of the
Vehicle Code.”3 Cal. Pen. Code § 1203.4a(a). In granting
2
Although the caption of the court order granting relief refers to “order
dismissing accusation against probationer,” the reference to Ramirez as
probationer appears to be a scrivener’s error. The court order otherwise
correctly references section 1203.4a, and relief was granted under section
1203.4a. Section 1203.4a of the California Penal Code allows limited
expungement for a defendant convicted of a misdemeanor and not granted
probation, while section 1203.4 of the California Penal Code allows lim-
ited expungement for a defendant who has fulfilled the conditions of pro-
bation. Because Ramirez was sentenced to jail time, not probation, the
court would be authorized to grant relief only under section 1203.4a.
3
Section 12021.1 of the California Penal Code provides that it is a fel-
ony for persons convicted for certain violent crimes to own or possess a
firearm, notwithstanding whether the person received relief under section
1203.4a. Section 13555 of the California Vehicle Code provides:
A termination of probation and dismissal of charges pursuant to
Section 1203.4 or a dismissal of charges pursuant to Section
1250 RAMIREZ-ALTAMIRANO v. MUKASEY
Ramirez such relief, the state court imposed additional restric-
tions, stating: “[T]his order does not relieve the defendant of
the obligation to disclose this conviction in response to any
direct question contained in any questionnaire or application
for public office, for licensure by any state o[r] local agency,
or for contracting with the California State Lottery.”
In his hearing before the immigration judge (IJ), Ramirez
sought relief in the form of cancellation of removal under 8
U.S.C. § 1229b(b). The IJ held that Ramirez did not qualify
for this form of relief because his state conviction “still exists
for Immigration purposes.” The IJ noted that the state court’s
order granting Ramirez a remedy under section 1203.4a
“shows that even for the State of California, the respondent
has a conviction, at least for disclosing it for public office, of
seeking [sic] a license by any State or local agency, and for
even contracting with the California State lottery.” The BIA
affirmed, holding that “the respondent failed to demonstrate
statutory eligibility for cancellation of removal,” because he
failed to carry his burden of demonstrating “he could have
satisfied the requirements of the [FFOA] under 18 U.S.C.
§ 3607.”
In analyzing Ramirez’s appeal of the BIA’s denial under
the three-prong Lujan-Armendariz test, we first consider
whether Ramirez was “adjudged guilty” of an offense that
was identical to an offense under federal law. Lujan-
Armendariz, 222 F.3d at 749. The answer to this question is
no. Ramirez was not adjudged guilty of a drug-related offense
that would qualify for FFOA expungement. Our case law,
however (as noted above), requires us to conclude that
1203.4a of the Penal Code does not affect any revocation or sus-
pension of the privilege of the person convicted to drive a motor
vehicle under this chapter. Such person’s prior conviction shall
be considered a conviction for the purpose of revoking or sus-
pending or otherwise limiting such privilege on the ground of two
or more convictions.
RAMIREZ-ALTAMIRANO v. MUKASEY 1251
Ramirez’s conviction for the state offense of possession of
drug paraphernalia satisfies this prong of the test. See
Cardenas-Uriarate, 227 F.3d at 1137-38.
Skipping ahead for a moment, a similar result occurs under
the third prong of the test, which addresses the question
whether the alien would have qualified for and received
expungement of the offense under the FFOA. See Lujan-
Armendariz, 222 F.3d at 749. Here, the answer is also no. The
FFOA applies only to defendants who have received a term
of probation of not more than one year, 18 U.S.C. § 3607(a);
Ramirez received jail time. Three circuits have held there is
a rational basis to distinguish between aliens who receive dif-
ferent sentences. See Fernandez-Bernal v. Att’y Gen., 257
F.3d 1304, 1317 (11th Cir. 2001) (holding it does not violate
equal protection to treat an alien who is sentenced to two
years of probation and a term of jail differently than an alien
receiving FFOA relief); Vasquez-Velezmoro, 281 F.3d at 697(holding that a person sentenced to ten years probation by a
Texas court would not be eligible for FFOA relief, and “[t]his
difference in sentences is a rational basis for treating peti-
tioner differently from an alien whose conviction is expunged
under the FFOA.”); Elkins, 392 F.3d at 1163 (10th Cir. 2004)
(holding that there is a rational basis for denying petitioner the
benefits of the FFOA in an immigration proceeding because
petitioner was subject to a two-year suspension of sentence,
rather than probation). In Lujan-Armendariz, we expressly left
this issue open. Lujan-Armendariz, 222 F.3d at 738 n.18
(holding that, because the petitioner in that case was sen-
tenced only to probation, we did not need to decide whether
a person subject to imprisonment could qualify for relief).
Ramirez fails to meet the requirement of the third prong of the
Lujan-Armendariz test. This deficiency is not relevant to our
analysis, however, because the BIA did not rely on this
ground in rejecting Ramirez’s appeal. See Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (holding that, in review-
ing the BIA’s decision, we may rely only on the grounds
relied upon by the BIA).
1252 RAMIREZ-ALTAMIRANO v. MUKASEY
Thus, the analysis turns on the second prong of the Lujan-
Armendariz test, which requires expungement of an offense
under state law.4 Lujan-Armendariz, 222 F.3d at 749. Yet,
Ramirez cannot pass this test. A person receiving relief under
section 1203.4a of the California Penal Code does not benefit
from a full expungement, but rather, depending on the cir-
cumstances, retains the consequences of his conviction in
important contexts, potentially implicating rights such as eli-
gibility for a driver’s license, application for public office,
receipt of a license from a local agency, and possession of a
firearm, see District of Columbia v. Heller, 554 U.S. ___
(2008) (holding that the Second Amendment protects an indi-
vidual’s right to possess a firearm for private use). There is no
principled basis for concluding it is irrational to distinguish
between the limited state rehabilitation statute in this case and
the FFOA, which provides that a disposition under § 3607(a)
“shall not be considered a conviction for the purpose of a dis-
qualification or a disability imposed by law upon conviction
of a crime, or for any other purpose.” 18 U.S.C. § 3607(b).
The majority reaches the opposite conclusion for two rea-
4
The majority notes that in Lujan-Armendariz, the state expungement
statute did not relieve defendants of all residual consequences of their con-
victions. Specifically, the expungement statute precluded relief, in certain
cases, from various department of transportation and game and fish com-
mission penalties. Lujan-Armendariz did not discuss this aspect of the
state expungement statute, stating only that the statute’s exceptions to “the
release ‘from all penalties and disabilities’ ” were “not relevant here.” 222
F.3d at 733 n.6. Nor does Lujan-Armendariz explain why the difference
between the limited relief provided by the Arizona expungement statute
and the full relief provided by the FFOA failed to provide a rational basis
for distinguishing “between aliens whose criminal cases are dismissed
under the federal FFOA and those whose charges are handled under simi-
lar state schemes.” Acosta, 341 F.3d at 227. Nevertheless, the situation in
this case is different. As explained below, section 1203.4a provides less
relief than the expungement statute at issue in Lujan-Armendariz, includ-
ing depriving certain convicts of a constitutional right. And unlike the
petitioner in Lujan-Armendariz, who apparently was not subject to resid-
ual consequences, Ramirez himself was subject to residual consequences.
RAMIREZ-ALTAMIRANO v. MUKASEY 1253
sons. First, the majority claims that section 1203.4 expunge-
ment is equivalent to an expungement under the FFOA
because the exceptions to relief under section 1203.4a are nar-
row, minimal, and residual. Maj. Op. at 1233, 1236-37. This
conclusion is contrary to our reasoning in Ramirez-Castro v.
INS, 287 F.3d 1172 (9th Cir. 2002). In Ramirez-Castro, a
petitioner sought to terminate deportation proceedings on the
ground that his prior firearms conviction had been expunged
under section 1203.4(a), a statute similar to section 1203.4a.5
We stated that “as a general rule, an expunged conviction
qualifies as a conviction” for purposes of § 1101(a)(48)(A),
but noted that we had carved out an exception to this general
rule “in cases involving first-time simple possession of nar-
cotics.” 287 F.3d at 1174. After determining that the petition-
er’s firearms conviction was not within the scope of the
FFOA, we went on to consider petitioner’s argument that his
prior conviction had been erased for immigration purposes
because it had been expunged under section 1203.4. We
rejected petitioner’s argument, explaining that even “assum-
ing that some state expungement statutes could eliminate
completely the immigration consequences of a state convic-
tion, California Penal Code section 1203.4 is not such a stat-
ute.” Id. at 1175 (footnote omitted). In this context, we found
it significant that a defendant retained the consequences of a
conviction imposed by section 13555 of the California Vehi-
cle Code even after a conviction is expunged under section
1203.4. Accordingly, we concluded that “[i]n view of the fact
that California Penal Code section 1203.4(a) provides only a
5
Section 1203.4(a) (the statute at issue in Ramirez-Castro) states that
after expungement, a defendant “shall thereafter be released from all pen-
alties and disabilities resulting from the offense of which he or she has
been convicted, except as provided in Section 13555 of the Vehicle
Code.” Cal. Pen. Code § 1203.4(a).
Section 1203.4a(a) (the statute at issue here) states that after expunge-
ment, a defendant “shall thereafter be released from all penalties and dis-
abilities resulting from the offense of which he or she has been convicted,
except as provided in Section 12021.1 of this code or Section 13555 of the
Vehicle Code.” Cal. Pen. Code § 1203.4a(a).
1254 RAMIREZ-ALTAMIRANO v. MUKASEY
limited expungement even under state law, it is reasonable for
the BIA to conclude that a conviction expunged under that
provision remains a conviction for purposes of federal law.”
Id. Because Ramirez-Castro involved a firearm conviction,
we did not have to address the question whether a first-time
drug conviction expunged under section 1203.4 was analo-
gous to a first-time drug conviction expunged under the
FFOA. However, our holding in Ramirez-Castro indicates
that the even more limited expungement in our case is not
equivalent to the FFOA’s full expungement.
Second, the majority claims that Lujan-Armendariz’s sec-
ond prong is met because the scope of relief provided by a
state expungement statute is less important than whether the
petitioner would qualify for FFOA relief at all. Maj. Op. at
1235-36 (“the critical question is not the nature of the state’s
expungement statute but rather ‘what [the petitioner] did.’ ”)
(citing Lujan-Armendariz, 222 F.3d at 738 n.18) (alteration in
original)). In support, the majority points out that in several
prior decisions we required the BIA to grant immigration
relief to petitioners receiving relief under state rehabilitative
laws even though the state laws at issue did not provide com-
plete expungement. Maj. Op. at 1234-35.
Again, I disagree. The three cases cited by the majority to
buttress this proposition are inapposite, because in none of
them did we consider or even mention the extent to which the
state expungement scheme removed the consequences of a
conviction. For example, Garberding is entirely silent on the
scope of the state statute, and did not even quote the section
of the Montana statute cited by the majority. See Garberding,
30 F.3d at 1187; see also Cardenas-Uriarte, 227 F.3d at 1138(mentioning that the petitioner’s conviction was expunged by
section 13-907 of the Arizona Revised Code, which allowed
convictions under the statute to be used as a conviction “in
any subsequent prosecution of such person by the state or any
of its subdivisions for any offense,” but only to assure our-
selves that the petitioner had not been convicted of another
RAMIREZ-ALTAMIRANO v. MUKASEY 1255
controlled substance offense in Arizona). When we did
address the scope of the expungement provided by a state
expungement statute, see Ramirez-Castro, we determined it
was not sufficient to erase the immigration consequences of
the crime.
I also disagree with the majority’s suggestion that the scope
of relief provided by the state statute is irrelevant. The ques-
tion under our equal protection jurisprudence is whether there
is a rational basis for distinguishing aliens receiving relief
under the FFOA from aliens receiving relief under the state
rehabilitation test. A state’s decision to completely rehabili-
tate a convict reflects its assessment that a person has
reformed and should be given a fresh start. A rehabilitation
statute that provides only partial or limited relief reflects a dif-
ferent determination. Although the majority cites Lujan-
Armendariz, 222 F.3d at 738 n.18, for the proposition that
“the critical issue is not the nature of the state’s expungement
statute but rather what the petitioner did,” Maj. Op. at 1229,
we made this statement in connection with our conclusion that
the difference between a deferred adjudication of guilty in the
FFOA and the vacatur provided by the Arizona statute at issue
in Lujan-Armendariz was irrelevant. See Lujan-Armendariz,
222 F.3d at 738 n.18. It does not support the majority’s claim
that the scope of relief provided by a state expungement stat-
ute is irrelevant.
In this case, the limited nature of the relief provided by sec-
tion 1203.4a of the California Penal Code makes it “reason-
able for the BIA to conclude that a conviction expunged under
[such a] provision remains a conviction for purposes of fed-
eral law.” Ramirez-Castro, 287 F.3d at 1175 (examining the
similar language in section 1203.4(a) of the California Penal
Code). Because there is a rational basis to distinguish between
Ramirez and a person who receives full expungement under
the FFOA, the BIA’s determination that Ramirez had a con-
viction for purposes of § 1182(a)(2) and § 1227(a)(2), and
therefore could not qualify for cancellation of removal under
1256 RAMIREZ-ALTAMIRANO v. MUKASEY
8 U.S.C. § 1229b(b)(1)(C), did not violate Ramirez’s equal
protection rights.
III
Our prior decisions have led us, step by step, to the conclu-
sion that Congress could have no rational reason for treating
the expungement offered under the FFOA to certain first
offenders convicted for certain federal drug crimes differently
from a more limited expungement offered under state law to
persons convicted for different state drug crimes. Clearly, we
have traveled far from our main task of determining, “not
whether the statutory scheme makes sense to us, but whether
we can conceive of a rational reason Congress may have had
in adopting it.” Abebe, 2009 WL 50120 at *2. By holding that
aliens receiving even limited relief under a state rehabilitation
statute must be treated the same as first offenders whose con-
victions are expunged by the FFOA, the majority today fur-
ther strains our equal protection jurisprudence and takes yet
another step in rewriting the definition of “conviction” in 8
U.S.C. § 1101(a)(48)(A). I respectfully dissent.