Jaimes-Mendoza v. Holder

FILED
NOT FOR PUBLICATION JUN 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANUEL JAIMES-MENDOZA, No. 06-72479
Petitioner, Agency No. A075-570-154
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Manuel Jaimes-Mendoza, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s removal order. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
8 U.S.C. § 1252. We grant the petition for review and remand for further
proceedings.
The BIA concluded that Jaimes-Mendoza is inadmissible due to his
conviction for being under the influence of cocaine pursuant to Cal. Health &
Safety Code § 11550 despite his subsequent relief under Cal. Penal Code § 1203.4.
The BIA, however, did not have the benefit of our intervening decision in Rice v.
Holder, 597 F.3d 952, 957 (9th Cir. 2010), which held that an individual convicted
of using or being under the influence of a controlled substance and who was
subsequently granted relief under § 1203.4 is eligible for the same immigration
treatment as individuals convicted of simple drug possession whose convictions
are expunged under the Federal First Offender Act (FFOA). See also Lujan-
Armendariz v. INS, 222 F.3d 728, 735 (9th Cir. 2000) (Under the FFOA, “the
finding of guilt is expunged and no legal consequences may be imposed as a result
of the defendant’s having committed the offense. The [FFOA’s] ameliorative
provisions apply for all purposes.”).
We therefore remand for the BIA to reconsider Jaimes-Mendoza’s eligibility
for relief from removal. See generally INS v. Ventura, 537 U.S. 12, 16-18 (2002).
PETITION FOR REVIEW GRANTED; REMANDED.
2 06-72479