Estrada v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ESTUARDO ESTRADA, aka Jose 
Fermin Estrada,
No. 05-75772
Petitioner,
v.  Agency No.
A070-184-862
ERIC H. HOLDER, JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 4, 2009*
Pasadena, California
Filed March 26, 2009
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Rymer
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
3647
ESTRADA v. HOLDER 3649
COUNSEL
Henry A. Posada, Law Offices of Henry A. Posada, Downey,
California, for the petitioner.
Daniel E. Goldman, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
OPINION
RYMER, Circuit Judge:
The question before us is whether an alien whose state con-
viction for possession of drug paraphernalia was expunged
3650 ESTRADA v. HOLDER
under state law, but who violated the terms of his probation
before expungement, would have been eligible for relief
under the Federal First Offender Act (FFOA), 18 U.S.C.
§ 3607(a). Generally, expungement of convictions under state
rehabilitative statutes does not negate the immigration conse-
quences of the conviction. Notwithstanding this, an alien is
not removable if—had he been prosecuted in federal court—
he would have qualified for relief under the FFOA. The
FFOA relieves certain first-time offenders convicted on drug
possession charges of what would otherwise be the immigra-
tion consequences of the conviction. However, FFOA relief is
unavailable when an offender has violated a condition of pro-
bation. See 18 U.S.C. § 3607(a). For this reason, we deny the
petition brought by Jose Estuardo Estrada, a native and citizen
of Guatemala, whose application for adjustment to permanent
resident status was denied and whom the immigration judge
(IJ), and Board of Immigration Appeals (BIA), found ineligi-
ble for a waiver under 8 U.S.C. § 1182(h).
Estrada was convicted in 2001 for possession of pipe/drug
paraphernalia in violation of California Health and Safety
Code section 11364, and was placed on probation for three
years. The state court twice found that he violated the terms
and conditions of his probation. Nevertheless, Estrada’s
motion to set aside and vacate his plea, and dismiss the drug
paraphernalia charges, was granted in August 2004 pursuant
to California Penal Code section 1203.4.
Meanwhile, Estrada was served with a Notice to Appear for
removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i)
because he was present in the United States without having
been admitted or paroled, and under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) because he had been convicted of bur-
glary under section 459 of the California Penal Code, a crime
of moral turpitude. He sought to apply for adjustment of sta-
tus pursuant to a waiver of that conviction under 8 U.S.C.
§ 1182(h). Estrada’s eligibility for waiver (hence his ability to
pursue adjustment of status) ultimately came down to the sta-
ESTRADA v. HOLDER 3651
tus of his 2001 conviction for possession of drug parapherna-
lia. Estrada maintained that expungement of this conviction
meant that it was no longer a “conviction” disabling him from
a § 1182(h) waiver because, had it been a federal conviction,
he would have been relieved of immigration consequences
under the FFOA. Both the IJ and the BIA disagreed, holding
that the FFOA expressly limits relief to cases where “the per-
son has not violated a condition of his probation.” 18 U.S.C.
§ 3607(a).1
[1] This is clearly correct, as the FFOA states, with respect
to qualifying convictions:
At the expiration of the term of probation, if the per-
son has not violated a condition of his probation, the
court shall, without entering a judgment of convic-
tion, dismiss the proceedings against the person and
discharge him from probation. If the person violates
a condition of his probation, the court shall proceed
in accordance with the provisions of section 3565.
Id. Section 3565 provides for continuing the offender on pro-
bation or revoking probation and resentencing the defendant;
it does not provide for dismissal or expungement of the under-
lying conviction. See 18 U.S.C. § 3565. Thus, because
Estrada would not have been entitled to FFOA relief as a fed-
eral defendant, his California expungement does not negate
his conviction for immigration purposes. See Aguiluz-
1
“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.” Ramirez-Altamirano v. Mukasey,
554 F.3d 786, 789 (9th Cir. 2009). When, as here, the BIA conducted an
independent review of the record, our “review is limited to the BIA’s deci-
sion, except to the extent the BIA expressly adopted the IJ’s opinion.”
Mendez-Mendez v. Mukasey, 525 F.3d 828, 832 (9th Cir. 2008) (internal
quotation marks omitted). We review de novo the BIA’s legal determina-
tions. Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 983 (9th Cir. 2006).
3652 ESTRADA v. HOLDER
Arellano, 446 F.3d at 983-84; Paredes-Urrestarazu v. INS, 36
F.3d 801, 812 (9th Cir. 1994).
[2] Estrada relies on Cardenas-Uriarte v. INS, 227 F.3d
1132 (9th Cir. 2000), where we held that a conviction for pos-
session of drug paraphernalia is an offense covered by the
FFOA. Estrada suggests that in that case we applied the BIA’s
test for FFOA eligibility set forth in Matter of Manrique, 21
I. & N. Dec. 58 (B.I.A. 1995), and made no inquiry into the
alien’s probationary conduct. We disagree. The petitioner in
Cardenas-Uriarte had not violated the terms and conditions
of probation, so we were not addressing the issue presented
by Estrada’s case. While a person convicted of possessing
drug paraphernalia may have a qualifying conviction under
the FFOA umbrella, as we held in Cardenas-Uriarte, he still
must meet the other requirements for FFOA relief. These
include having no probation violations.
[3] We recently indicated as much in Ramirez-Altamirano.
There we explained that “[a]t the end of the probation term,
if the defendant has not violated any of the conditions of pro-
bation, the court will dismiss the proceedings and discharge
the defendant without entering a judgment of conviction.” 554
F.3d at 791. To the extent any question remains, we now
make explicit that FFOA relief is not available when the per-
son whose conviction is expunged has violated a condition of
probation. Therefore, Estrada is not relieved of the immigra-
tion consequences of his 2001 conviction.
[4] Estrada also contends that the BIA should have
remanded to the IJ for a determination whether his 2001 con-
viction for possession of pipe/drug paraphernalia under Cali-
fornia Health & Safety Code section 11364 was a violation of
a law “relating to a controlled substance” under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). It is. See Luu-Le v. INS, 224 F.3d 911,
915-16 (9th Cir. 2000). Accordingly, we agree with the BIA
that Estrada is ineligible for a waiver under 8 U.S.C.
§ 1182(h).
ESTRADA v. HOLDER 3653
DENIED.