Aguiluz-Arellano v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VACILIO AGUILUZ-ARELLANO, 
Petitioner, No. 03-73856
v.
 Agency No.
A92-002-534
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2006*
Pasadena, California
Filed May 1, 2006
Before: David R. Thompson and Thomas G. Nelson,
Senior Circuit Judges, and Ronald M. Gould, Circuit Judge.
Opinion by Judge Gould
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
4967
AGUILUZ-ARELLANO v. GONZALES 4969
COUNSEL
Dario Aguirre, San Diego, California, for petitioner Vacilio
Aguiluz-Arellano.
Lyle D. Jentzer, U.S. Department of Justice, Washington,
D.C., for respondent Alberto Gonzales.
4970 AGUILUZ-ARELLANO v. GONZALES
OPINION
GOULD, Circuit Judge:
Vacilio Aguiluz-Arellano petitions for review of a final
removal order, arguing that the BIA erred in finding that
Aguiluz-Arellano’s conviction for being under the influence
of a controlled substance did not fall within the scope of the
Federal First Offender Act (FFOA), 18 U.S.C. § 3607, and
therefore that the BIA erred in concluding that Aguiluz-
Arellano was removable under 8 U.S.C. § 1227(a)(2)(B)(i).
We have jurisdiction, and we deny the petition for review.
I
Aguiluz-Arellano is a native and citizen of Mexico, and a
lawful permanent resident of the United States. In 1997 he
was convicted of a misdemeanor violation of California
Health and Safety Code section 11377(a) (prohibiting the pos-
session of a controlled substance). Because of that conviction,
an Immigration Judge (IJ) found him removable, but granted
Aguiluz-Arellano cancellation of removal on April 17, 1998.
On October 25, 2001, Aguiluz-Arellano pled guilty to one
misdemeanor violation of California Health and Safety Code
section 11550(a) (prohibiting the use of or being under the
influence of a controlled substance). The conviction was sub-
ject to the Substance Abuse and Crime Prevention Act, CAL.
PENAL CODE § 1210, known as Proposition 36. Proposition 36
allows first- and second-time offenders to have their non-
violent, simple controlled substances charges dismissed upon
successful completion of a drug abuse treatment program.
On November 20, 2001, Aguiluz-Arellano was once more
charged with removability under 8 U.S.C. § 1227(a)(2)(B)(i)
(“Any alien who at any time after admission has been con-
victed of a violation of . . . any law or regulation of a State,
the United States, or a foreign country relating to a controlled
AGUILUZ-ARELLANO v. GONZALES 4971
substance . . . is deportable.”). After Aguiluz-Arellano
appeared pro se at the removal hearing, the IJ found that
Aguiluz-Arellano was removable because of his second con-
viction for a controlled substance offense, and that Aguiluz-
Arellano was not entitled to cancellation of removal because
he had received such relief on a previous occasion.
With the assistance of counsel, Aguiluz-Arellano appealed
to the BIA. The BIA denied relief, stating:
Although this appears to be the respondent’s first
drug offense, his conviction was not for simple pos-
session of a controlled substance. Rather, the respon-
dent was convicted for being under the influence of
a controlled substance. As a result, he does not fall
within the purview of the FFOA and a finding of
deportability pursuant to section 237(a)(2)(B)(i) of
the Act is not precluded. The Immigration Judge’s
finding of deportability shall be affirmed.
The BIA also held that because Aguiluz-Arellano’s removal
was previously cancelled, he was statutorily ineligible for
cancellation of removal a second time.
In his petition for review, Aguiluz-Arellano asserts that the
BIA erred in concluding that Aguiluz-Arellano’s conviction
did not fall within the protections of the FFOA.
II
In light of the statutory changes effected by the REAL ID
Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, we first con-
sider our jurisdiction on this petition for review. Title 8
U.S.C. § 1252(a)(2)(C) states that “no court shall have juris-
diction to review any final order of removal against an alien
who is removable by reason of having committed a criminal
offense,” including offenses involving controlled substances.
However, on May 11, 2005 the President signed into law the
4972 AGUILUZ-ARELLANO v. GONZALES
REAL ID Act. Section 106(a)(1)(A)(iii) of the REAL ID Act
added a new provision, 8 U.S.C. § 1252(a)(2)(D), which
states as follows:
Nothing in subparagraph (B) or (C), or in any other
provision of this Chapter (other than this section)
which limits or eliminates judicial review, shall be
construed as precluding review of constitutional
claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in
accordance with this section.
Id. We have explained that:
By this amendment, Congress restored judicial
review of constitutional claims and questions of law
presented in petitions for review of final removal
orders. It did so by providing that nothing in 8
U.S.C. § 1252(a)(2)(B), (C), or any other provision
of the INA shall preclude judicial review of such
orders, unless such review is barred by some other
provision of 8 U.S.C. § 1252. In short, Congress
repealed all jurisdictional bars to our direct review of
final removal orders other than those remaining in 8
U.S.C. § 1252 (in provisions other than (a)(2)(B) or
(C)) following the amendment of that section by the
REAL ID Act.
Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.
2005) (footnote omitted).
[1] Aguiluz-Arellano does not present a constitutional
claim, but argues that, as a matter of law, his conviction for
being under the influence of a controlled substance is not a
conviction for purposes of 8 U.S.C. § 1227(a)(2)(B)(i)
because it could have been subject to the FFOA if it had been
prosecuted in federal court. Because his petition for review
presents a question of law, we have jurisdiction to consider it.
AGUILUZ-ARELLANO v. GONZALES 4973
III
BIA findings of fact are reviewed for substantial evidence,
and we “must uphold the BIA’s finding unless the evidence
compels a contrary result.” Monjaraz-Munoz v. INS, 327 F.3d
892, 895 (9th Cir. 2003); see 8 U.S.C. § 1252(b)(4)(B)
(“[T]he administrative findings of facts are conclusive unless
any reasonable adjudicator would be compelled to conclude
the contrary.”). We review legal determinations of the BIA de
novo. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145
(9th Cir. 2002).
IV
[2] Aguiluz-Arellano argues that if he had been prosecuted
in federal court, his conviction would have been subject to the
FFOA, 18 U.S.C. § 3607, and so it is not a conviction for pur-
poses of 8 U.S.C. § 1227(a)(2)(B)(i). We have held that an
alien is not removable if his or her conviction was subject to
a state rehabilitative statute and the alien, if prosecuted in fed-
eral court, would have qualified for treatment under the
FFOA. Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir.
2000); Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.
1994). However, we have held that if an alien’s state court
conviction does not fall within the scope of the FFOA, he or
she is not entitled to favorable immigration treatment just
because his or her conviction is subject to a state rehabilita-
tion statute. Paredes-Urrestarazu v. INS, 36 F.3d 801, 812
(9th Cir. 1994); see also Lujan-Armendariz, 222 F.3d at 738
(“[I]n Paredes-Urrestarazu, a case involving a California pre-
trial diversion program, we set forth the corollary of the Gar-
berding rule, and held that persons found guilty of a drug
offense who could not have received the benefit of the federal
Act were not entitled to receive favorable immigration treat-
ment, even if they qualified for such treatment under state
law.”). Our precedents “require, as a matter of constitutional
equal protection, that the benefits of the Act be extended to
aliens whose offenses are expunged under state rehabilitative
4974 AGUILUZ-ARELLANO v. GONZALES
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.
[3] In its order dismissing Aguiluz-Arellano’s appeal, the
BIA stated that “this appears to be respondent’s first drug
offense,” even though the IJ found that Aguiluz-Arellano had
previously pled guilty to violating California Health and
Safety Code section 11377(a), and Aguiluz-Arellano’s guilty
plea is in the administrative record. Whether we review the
BIA’s statement that this was Aguiluz-Arellano’s first drug
offense de novo, as the Government argues, or for substantial
evidence, as Aguiluz-Arellano argues, the record shows that
this was Aguiluz-Arellano’s second controlled substance con-
viction, and the contrary conclusion is not supported by sub-
stantial evidence.
[4] Because the conviction for being under the influence
was Aguiluz-Arellano’s second conviction for a drug offense,
the FFOA could not have applied if he had been prosecuted
in federal court. See 18 U.S.C. § 3607(a) (“If a person found
guilty of an offense described in section 404 of the Controlled
Substances Act . . . has not, prior to the commission of such
offense, been convicted of violating a Federal or State law
relating to controlled substances . . . the court may . . . place
him on probation . . . without entering a judgment of convic-
tion.” (emphasis added)). Aguiluz-Arellano’s second convic-
tion qualified for treatment under Proposition 36. But because
this second conviction could not have qualified for treatment
under the FFOA, it must be considered a conviction for the
purposes of 8 U.S.C. § 1227(a)(2)(B)(i). See Paredes-
Urrestarazu, 36 F.3d at 812. Even if an alien’s conviction
may be dismissed under state law following participation in
a substance abuse treatment program, if it is a second convic-
tion for a drug-related offense then the FFOA will provide no
relief and it cannot be set forth as a safety net to avoid
removal.
AGUILUZ-ARELLANO v. GONZALES 4975
[5] Our analysis differs from that of the BIA, which con-
cluded that Aguiluz-Arellano’s conviction did not fall within
the scope of the FFOA because he was convicted of being
under the influence of a controlled substance, and the FFOA
only applies to convictions for the possession of controlled sub-
stances.1 Although we would have to remand to the BIA if the
issue was whether Aguiluz-Arellano qualified for discretion-
ary relief, remand is not required where, as here, the issue is
purely legal and it involves an interpretation of the FFOA, a
statute which the BIA is not charged with administering. This
case requires no further agency expertise or evaluation
because our legal conclusion that the FFOA does not apply to
Aguiluz-Arellano’s second conviction compels the conclusion
that he is removable. See Moisa v. Barnhart, 367 F.3d 882,
887 (9th Cir. 2004) (declining to remand for the agency to
determine Social Security benefits eligibility when “this case
requires no further agency expertise or evaluation, and our
decision does not independently create a potentially far-
reaching legal precedent.”); see also Ray v. Gonzales, 439
F.3d 582, 591 (9th Cir. 2006) (“[W]e note that it may be
appropriate for us to address the merits of purely legal claims
over which the BIA claims no particular expertise and as to
which we would not ‘intrude upon [a] domain which Con-
gress has exclusively entrusted to an administrative agency.’ ”
(quoting INS v. Ventura, 537 U.S. 12, 16 (2002)) (second
alteration in original) (internal quotation marks omitted)).
V
Because the conviction at issue here was Aguiluz-
Arellano’s second controlled substance conviction, it could
not have qualified for treatment under the FFOA if he had
been prosecuted in federal court. Because the FFOA could not
have been applied to Aguiluz-Arellano’s second offense, his
1
The FFOA only applies to offenses defined in 21 U.S.C. § 844, which
states as follows: “It shall be unlawful for any person knowingly or inten-
tionally to possess a controlled substance . . . .”
4976 AGUILUZ-ARELLANO v. GONZALES
second conviction is a conviction for a controlled substance
offense for which Aguiluz-Arellano is removable, regardless
of whether that conviction was later dismissed or expunged
pursuant to state law.
PETITION FOR REVIEW DENIED.