- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 02-01-2013
- Case #: 08-71950; 08-74867
- Judge(s)/Court Below: Circuit Judge Ikuta for the Court, Circuit Judge Graber; Concurrence by Circuit Judge Bright
- Full Text Opinion
In 1997, Lopez-Vasquez was convicted of a “straight felony,” possession of marijuana for sale, in violation of § 11359 of the California Health & Safety Code. In 1998, Lopez sought to change the charge “for immigration purposes,” and the state court reduced his conviction to a misdemeanor. The government initiated removal proceedings, and the immigration judge determined that he was ineligible for adjustment of status due to his 1997 drug conviction. The BIA affirmed and denied Lopez-Vasquez’s motion to reopen for new evidence. Under 8 U.S.C. § 1182, an alien convicted of an offense relating to a controlled substance is inadmissible to the U.S. for permanent residence. However, the Federal First Offender Act (“FFOA”) permits a federal court to place first-time drug offenders convicted of simple possession on prejudgment probation. The defendant is discharged upon completing probation, and that disposition is not considered a conviction in immigration proceedings. The Ninth Circuit in Lujan-Armendariz v. INS, which applies to convictions entered by a state court before July 14, 2011, extended the FFOA benefits to expunged state court convictions where the defendant would have been eligible for FFOA relief had the offense been prosecuted as a federal crime. On review, Lopez-Vasquez argued that the state court, in designating his 1997 conviction a misdemeanor, changed his conviction to one for simple possession under § 11357 of the California Health & Safety Code, which made him eligible for relief under Lujan-Armendariz. The Court disagreed, noting that Lopez-Vasquez failed to prove “clearly and beyond doubt” that the state court changed his conviction to simple possession under § 11357, because nothing in the trial court’s records referred to § 11357. Further, the Court determined that Lopez-Vasquez waived his challenge to the denial of his motion to reopen, because he failed to address the challenge in his brief. PETITION DENIED.