February 4, 2009; see amended opinion filed April 14, 2009
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A92-949-620.
The opinion of the court was delivered by: Wardlaw, Circuit Judge
Argued and Submitted May 5, 2008-Pasadena, California
Before: Kim McLane Wardlaw and Sandra S. Ikuta, Circuit Judges, and Jeremy D. Fogel,*fn1 District Judge.
Opinion by Judge Wardlaw; Dissent by Judge Ikuta
Joel Ramirez-Altamirano petitions for review of the denial of his application for cancellation of removal. The Immigration 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 petition 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 removal proceedings. Before the IJ, Ramirez-Altamirano conceded that he had entered the country most recently in September 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 possession of drug paraphernalia under California Health and Safety Code section 11364.*fn2 His attorney noted, however, that Ramirez-Altamirano was seeking expungement of the conviction 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 A state court found that "good cause" existed to order the conviction set aside, the guilty plea withdrawn, a plea of "not guilty" entered, and the charge dismissed.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 penalties and disabilities" resulting from the conviction, except that he would not be relieved of his obligation to disclose the conviction "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 California State Lottery."
When Ramirez-Altamirano returned to Immigration Court in April 2005, the IJ considered whether the set-aside conviction affected his claim for cancellation of removal. Under 8 U.S.C. § 1229b(b)(1)(C), cancellation of removal is not available to nonpermanent residents who have been convicted of a controlled substance offense. Ramirez-Altamirano's attorney 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 immigration 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, determining 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 California State Lottery." The IJ also explained that Ramirez-Altamirano's "reliance on Lujan-Armendariz [was] misplaced," because that case involved "the crime of simple possession 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 immigration consequences had "two profound impacts on his eligibility for cancellation of removal." First, the conviction precluded relief under 8 U.S.C. § 1229b(b)(1)(C), which limits cancellation of removal to those nonpermanent residents who have not been convicted of a controlled substance offense. Second, the conviction served as a "stop-time event," terminating (in a virtual sense) Ramirez-Altamirano's "physical 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.*fn3
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 "rendered [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 continuous 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 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.
The IJ held, and the BIA summarily agreed, that Ramirez-Altamirano's prior conviction for possession of drug paraphernalia 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 "convictions" for immigration purposes. Yet, the IJ held that LujanArmendariz did not apply for two reasons: (1) Ramirez-Altamirano's conviction was for possession of drug paraphernalia 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 years immediately preceding the date of such application;
(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 exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or ...