Claudia Prado v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIA ERIKA PRADO, AKA No. 17-72914
Claudia Erika Prado Ramirez,
Petitioner, Agency No.
A036-724-746
v.
WILLIAM P. BARR, Attorney General, ORDER AND
Respondent. AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 19, 2019
San Francisco, California
Filed May 10, 2019
Amended February 3, 2020
Before: Michael Daly Hawkins and Milan D. Smith, Jr.,
Circuit Judges, and Barbara M. G. Lynn, * District Judge.
Order;
Opinion by Judge Hawkins
*
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
2 PRADO V. BARR
SUMMARY **
Immigration
The panel filed: 1) an order amending its prior opinion,
denying panel rehearing, and denying, on behalf of the court,
rehearing en banc; and 2) an amended opinion denying
Claudia Prado’s petition for review of a decision of the
Board of Immigration Appeals. In the amended opinion, the
panel held that Prado’s felony conviction for Possession of
Marijuana for Sale under California Health & Safety Code
§ 11359 made her removable even though the conviction had
been recalled and reclassified as a misdemeanor under
California’s Proposition 64.
Based on her conviction, the Department of Homeland
Security charged Prado as removable for: (1) committing an
offense relating to a controlled substance; and (2)
committing an aggravated felony, illicit trafficking in a
controlled substance. While her removal charges were
pending, Prado applied to the Superior Court of California
to have her conviction reduced to a misdemeanor under
California’s Proposition 64, the Control, Regulate, and Tax
Adult Use of Marijuana Act (the “Act”), which permits
individuals who have completed their sentences under
various statutes to have their felony convictions
“redesignated” as misdemeanors. The state court granted
Prado’s application, but the immigration judge and BIA
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PRADO V. BARR 3
found Prado removable as charged and denied relief from
removal.
Before this court, Prado claimed that her conviction was
no longer a predicate to removal because it had been recalled
and reclassified under the Act. The panel concluded that her
argument failed because federal immigration law does not
recognize a state’s policy decision to expunge (or recall or
reclassify) a valid state conviction. In this respect, the panel
explained that a conviction vacated for reasons unrelated to
the merits of the criminal proceedings – such as equitable,
rehabilitation, or immigration hardship reasons – may be
used as a conviction in removal proceedings, whereas a
conviction vacated because of a procedural or substantive
defect in the criminal proceedings may not. The panel
concluded that Prado’s conviction retained its immigration
consequences because it was reclassified for policy reasons
of rehabilitation, rejecting her attempt to characterize
California’s decision that its marijuana policy was flawed as
proof of a “substantive” flaw in her conviction.
The panel also concluded that Prado’s argument – that
the reclassification of her conviction eliminated its
immigration consequences – failed because the Act merely
reclassified her sentence as a matter of California law, rather
than fully expunging it. The panel explained that common
sense and this court’s precedent dictate that partial
expungement or reclassification cannot eliminate the
immigration consequences of a conviction.
4 PRADO V. BARR
COUNSEL
Hadiya Deshmukh (argued) and Sean P. McGinley (argued),
Certified Law Students; Kari Elisabeth Hong (argued),
Supervising Attorney; Boston College Law School, Ninth
Circuit Appellate Project, Newton, Massachusetts; for
Petitioner.
Genevieve M. Kelly (argued), Attorney; Bryan S. Beier,
Senior Litigation Counsel; Cindy F. Ferrier and John W.
Blakeley, Assistant Directors; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Stephen Manning, Innovation Law Lab, Portland, Oregon,
for Amicus Curiae Immigrant Legal Resource Center.
ORDER
The opinion filed on May 10, 2019, and published at
923 F.3d 1203, is amended by the opinion filed concurrently
with this order.
With these amendments, the panel votes to deny the
Petitioner’s petition for panel rehearing.
Judge Smith has voted to deny the petition for rehearing
en banc, and Judges Hawkins and Lynn so recommend. The
full court has been advised of the petition for rehearing en
banc and no judge of the court has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
PRADO V. BARR 5
Petitioner=s petition for rehearing and petition for
rehearing en banc are DENIED.
OPINION
HAWKINS, Senior Circuit Judge:
Claudia Prado (“Prado”) seeks review of the Board of
Immigration Appeals’ conclusion that her California felony
conviction for possession of marijuana was an “aggravated
felony” and an offense “relating to a controlled substance”
that rendered her removable. See 8 U.S.C.
§§ 1227(a)(2)(A)(iii), (a)(2)(B)(i). Prado claims this
conviction is no longer a predicate to removal because it was
recalled and reclassified as a misdemeanor under
California’s Proposition 64. Because valid state convictions
retain their immigration consequences even when modified
or expunged for reasons of state public policy, we deny her
petition.
BACKGROUND
Born in Mexico, Prado entered the United States with her
parents in 1972, when she was approximately six months
old. She became a lawful permanent resident on
December 29, 1980. Thereafter, she resided in the United
States but never became a United States citizen.
On May 28, 2014, Prado pled guilty to one felony count
of Possession of Marijuana for Sale, in violation of
California Health and Safety Code (“CHSC”) Section
11359. The Superior Court of California, County of Orange,
placed her on probation for three years.
6 PRADO V. BARR
Two years later, the United States Department of
Homeland Security (“DHS”) encountered Prado at the
Orange County Jail, where she was serving time on a
subsequent drug conviction. DHS charged Prado with two
violations of the Immigration and Nationality Act (“INA”),
both arising from her conviction under CHSC § 11359, and
either of which would render her removable: (1) committing
an offense “relating to a controlled substance,” in violation
of 8 U.S.C. § 1227(a)(2)(B)(i); and (2) committing an
aggravated felony, illicit trafficking in a controlled
substance, in violation of 8 U.S.C. § 1227(a)(2)(A)(iii).
While her removal charges were pending, Prado applied
to the Superior Court of California to have her conviction
reduced from a felony to a misdemeanor under California’s
Proposition 64, the Control, Regulate, and Tax Adult Use of
Marijuana Act (the “Act”). The Act permits individuals who
have completed their sentences under various statutes,
including CHSC § 11359, to have their felony convictions
“redesignated” as misdemeanors. See CHSC §§ 11359(b),
11361.8(e). The court granted Prado’s application in an
order stating, “The following felony conviction(s) is/are
recalled and reclassified as misdemeanor conviction(s) and
any enhancements are dismissed by operation of law:
11359.”
Thereafter, Prado applied for asylum, withholding of
removal, cancellation of removal, and protection under the
Convention Against Torture. After several hearings, an
immigration judge (“IJ”) denied all of these applications and
found Prado removable as charged. The IJ noted that,
although Prado’s conviction was reduced from a felony to a
misdemeanor, “the conviction remains a conviction for
[i]mmigration purposes,” and “[t]he fact that it has been
reduced to a misdemeanor does not change the fact that it is
PRADO V. BARR 7
a controlled substance related offense and that it still
contains the trafficking element.” The IJ concluded, “The
Court does believe that at this point the respondent’s
conviction remains both a controlled substances offense and
an aggravated felony.”
Prado timely appealed the IJ’s determinations that she
was removable and ineligible for asylum. In her pro se brief
to the Board of Immigration Appeals (“BIA”), Prado argued
her conviction did not constitute an “aggravated felony” or
an offense “relating to a controlled substance” because it was
recalled and reclassified under the Act. In support of this
argument, she submitted a report by the Immigrant Legal
Resource Center on Proposition 64, which noted that the Act
could reduce the immigration consequences of certain
marijuana offenses but acknowledged that a marijuana
conviction eliminated for rehabilitative purposes “remains a
conviction for immigration purposes.”
The BIA dismissed Prado’s appeal. In response to
Prado’s argument that California recalled and reclassified
her conviction as a misdemeanor, thereby eliminating its
immigration consequences, the BIA observed that Prado
failed to identify any authority in support of her position.
Instead, the BIA held that Prado’s appeal was foreclosed by
Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014),
which held that a “conviction under CHSC § 11359
categorically qualifies as an aggravated felony, namely
‘illicit trafficking in a controlled substance.’” See id. at 1037
(quoting 8 U.S.C. § 1101(a)(43)(B)). The BIA also
dismissed Prado’s appeal of the IJ’s finding that she was
convicted of an offense “relating to a controlled substance.”
8 PRADO V. BARR
DISCUSSION
Prado does not contest that a conviction under CHSC
§ 11359, as it stood on the day of her guilty plea, would be
grounds for removal. Instead, Prado argues that the
reclassification of her conviction under the Act means she is
no longer removable. First, she argues that the Act’s
reclassification of her initial conviction eliminated its
immigration consequences. Second, she argues that she was
re-convicted under the modified terms of CHSC § 11359,
and that her new conviction is neither an “aggravated
felony” nor an “offense relating to a controlled substance,”
because the Act’s definition of “marijuana” is broader than
the definition used in the INA. See Moncrieffe v. Holder,
569 U.S. 184, 190–91 (2013) (a state offense must be a
“categorical match” to the offense listed in the INA in order
to serve as a predicate for removal).
Prado’s argument fails because federal immigration law
does not recognize a state’s policy decision to expunge (or
recall or reclassify) a valid state conviction. “A conviction
vacated for reasons ‘unrelated to the merits of the underlying
criminal proceedings’ may be used as a conviction in
removal proceedings whereas a conviction vacated because
of a procedural or substantive defect in the criminal
proceedings may not.” Poblete Mendoza v. Holder,
606 F.3d 1137, 1141 (9th Cir. 2010) (quoting Nath v.
Gonzales, 467 F.3d 1185, 1189 (9th Cir. 2006)). Thus, an
individual remains removable based on a conviction that was
vacated “for equitable, rehabilitation, or immigration
hardship reasons.” See Nath, 467 F.3d at 1188–89. This is
because “Congress intended to establish a uniform federal
rule that precluded the recognition of subsequent state
rehabilitative expungements of convictions.” See Murillo-
Espinoza v. I.N.S., 261 F.3d 771, 774 (9th Cir. 2001)
PRADO V. BARR 9
(deferring to BIA’s interpretation of the INA); see also
United States v. Campbell, 167 F.3d 94, 97 (2d Cir. 1999)
(“[W]hether one has been ‘convicted’ within the language of
[federal] statutes is necessarily . . . a question of federal, not
state, law, despite the fact that the predicate offense and its
punishment are defined by the law of the State.”) (second
and third alteration in original) (citation omitted)).
Prado’s conviction was reclassified for policy reasons of
rehabilitation, rather than because it was substantively or
procedurally flawed. The Act permits individuals who have
completed their sentences under statutes criminalizing the
sale, possession, production, or transportation of marijuana
to have their convictions reclassified and reduced. See
CHSC § 11361.8(e). Thus, the Act resembles other statutes
we have deemed “rehabilitative.” See, e.g., Murillo-
Espinoza, 261 F.3d at 774 & n.3 (describing as
“rehabilitative” a statute permitting individuals to apply to
have judgments against them set aside after completing their
sentence (citing Ariz. Rev. Stat. § 13-907(A))); Chavez-
Perez v. Ashcroft, 386 F.3d 1284, 1288 (9th Cir. 2004) (same
(citing Or. Stat. § 137.225(1)(a))).
The rehabilitative purpose of the Act is further
demonstrated by Prado’s own citation to materials showing
why California voters passed the Act. See In re Lance W.,
694 P.2d 744, 754 (Cal. 1985) (“In construing . . . statutory
provisions, whether enacted by the Legislature or by
initiative, the intent of the enacting body is the paramount
consideration.”). For instance, Prado cites the Official Voter
Information Guide’s statement that “Prop. 64 will stop
ruining people’s lives for marijuana,” as well as then-
Lieutenant Governor Gavin Newsom’s statement that “the
true promise of Proposition 64 [is] providing new hope and
opportunities to Californians, primarily people of color,
10 PRADO V. BARR
whose lives were long ago derailed by a costly, broken and
racially discriminatory system of marijuana
criminalization.” Considering these statements and the
structure of the Act, it seems the Act’s reclassification of
Prado’s conviction was intended to reduce the ongoing
negative effects of her conviction for rehabilitative purposes.
We are not persuaded by Prado’s attempt to characterize
California’s decision that its marijuana policy was flawed as
proof of a “substantive” flaw in her conviction. Prado
explains that California voters passed Proposition 64
because they believed California’s marijuana laws were
unjust, and claims that California’s “enforcement of its old
laws presents constitutional and legal defects in Ms. Prado’s
initial conviction.” However, Prado merely asserts that
California’s pre-Act drug enforcement policies were illegal
or unconstitutional, without attempting to show how the
proceedings against her were defective in any way. Because
Prado does not challenge the validity of her conviction, it
retains its immigration consequences.
Finally, Prado’s argument fails because the Act merely
reclassified her sentence as a matter of California law, rather
than fully expunging it. 1 As we explained in Ramirez-
Castro v. I.N.S., even “assuming that some state
expungement statutes could eliminate completely the
immigration consequences of a state conviction,” a statute
that “provides only a limited expungement even under state
law” is not such a statute. 287 F.3d 1172, 1175 (9th Cir.
1
While the Act permits a person who has completed his or her
sentence under CHSC § 11359 to apply to “have the conviction
dismissed and sealed because the prior conviction is now legally
invalid,” Prado neither requested nor received this form of relief. See
CHSC § 11361.8(e).
PRADO V. BARR 11
2002). The Act did not completely eliminate the
consequences of Prado’s conviction under CHSC § 11359
even as a matter of state law; rather, it reclassified that
conviction to a misdemeanor, under the modified terms of
CHSC § 11359. See CHSC § 11361.8(e); see People v. Lin,
236 Cal. Rptr. 3d 818, 825 (Cal. App. Dep’t Super. Ct. 2018)
(“[A]fter Proposition 64, possession of marijuana with intent
to sell . . . remain[s] subject to criminal condemnation. The
penalties are simply lower.”) (citation and quotation marks
omitted). Common sense and our precedent dictate that
partial expungement or reclassification cannot eliminate the
immigration consequences of a conviction.
Thus, we agree with the BIA that Prado’s initial
conviction retained its immigration consequences and
rendered her removable. See Roman-Suaste, 766 F.3d
at 1037. We need not consider Prado’s argument, relying on
Moncrieffe, that a conviction under the modified terms of
§ 11359 would not be a predicate for removal.
PETITION DENIED.