On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070-715-058.
The opinion of the court was delivered by: Pregerson, Circuit Judge
Argued and Submitted December 10, 2008 -- Pasadena, California
Before: Harry Pregerson, Dorothy W. Nelson and David R. Thompson, Circuit Judges.
Opinion by Judge Pregerson
Jesus Romero ("Romero") petitions for review of the Board of Immigration Appeals's ("BIA") order denying his motion to reopen and ordering him removed from the United States. In removal proceedings, Romero applied for cancellation of removal under 8 U.S.C. § 1229b(b). To qualify for that form of relief, Romero was required to show that he was a person of "good moral character." 8 U.S.C. § 1229b(b)(1)(B). The BIA affirmed the finding of the Immigration Judge ("IJ") that Romero's guilty plea to a first-time, simple possession drug offense, which was deferred for eighteen months and then dismissed under a state rehabilitative statute, statutorily barred Romero from proving good moral character. Because the BIA erred by finding Romero statutorily barred from showing good moral character on the basis of his guilty plea which was later expunged, we grant the petition and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
Romero was born in Mexico in July 1977. In February 1988, when Romero was ten years old, he accompanied his mother into the United States. At that time, his mother possessed a valid Border Crossing Card, which permitted them to remain in the United States for no more than seventy-two hours. Romero has continuously resided in this country since his entry. Both Romero's parents are now lawful permanent residents.
In 1998, when Romero was twenty years old, he was arrested for possession of a controlled substance in violation of California Health and Safety Code § 11377(a). Romero was allowed to participate in California's drug rehabilitation program under California Penal Code § 1000.
Pursuant to the rehabilitation program, in April 1998, Romero pled guilty to one count of simple possession of a controlled substance, and the judge deferred entry of judgment for eighteen months. When a defendant successfully completes the deferred judgment program, the criminal charges against him or her are dismissed. Cal. Penal Code § 1000.3 (stating that "[i]f the defendant has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period, the criminal charge or charges shall be dismissed."). Furthermore, follow- ing successful completion of the program, California Penal Code section 1000.1(d) provides that the "plea of guilty . . . shall not constitute a conviction for any purpose . . . ."
If Romero successfully completed the program, the criminal charge against him was scheduled to be dismissed in October 1999. Following Romero's appearance in state court on the drug charge, however, immigration officials*fn1 detained Romero and initiated removal proceedings against him, charging him as being removable for overstaying his visa.*fn2 In Immigration Court, Romero admitted the allegations and conceded his removability, and in October 1998, he filed an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b).
To be eligible for cancellation of removal under section 1229b(b), Romero needed to satisfy four requirements: (1) that he had been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of application, (2) that he had been a person of good moral character during that period, (3) that he had not been convicted of an offense under § 1182(a)(2)*fn3 and certain other offenses not relevant here, and (4) that removal would cause "exceptional and extremely unusual hardship" to Romero's lawful permanent resident parents. 8 U.S.C. § 1229b(b).
In considering whether Romero was eligible for cancellation of removal, the IJ considered two potential effects concerning Romero's controlled substance offense, which had not yet been expunged. To satisfy the second eligibility requirement for cancellation of removal, Romero had to show that he was a person of good moral character for a period of ten years preceding the date of his application for cancellation. But a person cannot be considered one of good moral character if he or she was "convicted of, or . . . admits having committed, or . . . admits committing acts which constitute the essential elements of" an offense under 8 U.S.C. § 1182(a)(2)(A) or (B).
8 U.S.C. § 1101(f)(3) (emphases added). The IJ determined that if Romero's state court guilty plea were classified as an "admission" that he had committed a controlled substance offense, Romero would be statutorily ineligible for cancellation of removal because under 1229b(b)(1)(B) he would not be considered to be a person of good moral character.
On the other hand, if Romero's controlled substance offense were classified as a "conviction," he could not satisfy the third eligibility requirement for cancellation of removal because he would be a person convicted of a controlled substance offense under 8 U.SC. § 1182(a)(2)(A)(i)(II). 8 U.S.C. § 1229b(b). The IJ held hearings to determine whether Romero's charged controlled substance offense should be treated as a "conviction" under Congress's 1996 definition ...