Charles Beckles v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES BECKLES, No. 13-71370
Petitioner, Agency No. A020-425-414
v.
AMENDED ORDER*
LORETTA E. LYNCH, Attorney General,**
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 5, 2015
Portland, Oregon
Before: FISHER, PAEZ and IKUTA, Circuit Judges.
Pursuant to the parties’ joint request at oral argument, this case is remanded to the
Board of Immigration Appeals (BIA).
1. As the government conceded at oral argument, the BIA erred as a matter of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Loretta E. Lynch is substituted for her predecessor, Eric H. Holder, Jr., as
United States Attorney General. Fed. R. App. P. 43(c)(2).
law in holding that Beckles’ three-year probationary sentence disqualified his conviction
for treatment under Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000),
overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc).
Although we lack jurisdiction to review the BIA’s exercise of discretion in declining to
reopen proceedings sua sponte, we have jurisdiction to review the underlying legal error.
See Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014).
Lujan-Armendariz itself extended Federal First Offender Act (FFOA) treatment to
a noncitizen who successfully served five years of probation for a simple drug offense.
See 222 F.3d at 733. Similarly, in Rice v. Holder, 597 F.3d 952, 954 (9th Cir. 2010),
overruled on other grounds by Nunez-Reyes, 646 F.3d at 695, we held that a controlled
substance offense was eligible for FFOA treatment even though the petitioner had been
sentenced to three years’ probation, of which he had served approximately 19 months.
See id. Remand is appropriate in order for the BIA to correctly apply Lujan-Armendariz
in determining whether to sua sponte reopen Beckles’ proceedings.
2. In considering whether to exercise its discretion to grant Beckles’ motion to
reopen, the BIA may consider other issues raised by the parties on appeal, including
Beckles’ claim that his conviction was vacated for substantive (not rehabilitative) reasons,
see Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107 (9th Cir. 2006); Matter of
Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), and the government’s claim that
2
Beckles’ divorce from his U.S. citizen wife and potential entry into the country as a
crewmember in 1977 render him ineligible for relief.
The parties have agreed to stay petitioner’s removal pending a decision in this
matter by the BIA.
REMANDED.
3