FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JESUS ROMERO, a.k.a. Jesus            
Romero-Tapia,
                                          No. 05-71029
                        Petitioner,
                v.                        Agency No.
                                          A070-715-058
ERIC H. HOLDER JR., Attorney
                                             OPINION
General,
                       Respondent.
                                      
         On Petition for Review of an Order of the
              Board of Immigration Appeals

                 Argued and Submitted
         December 10, 2008—Pasadena, California

                    Filed June 8, 2009

     Before: Harry Pregerson, Dorothy W. Nelson and
           David R. Thompson, Circuit Judges.

                Opinion by Judge Pregerson




                           6799
                     ROMERO v. HOLDER                  6801




                        COUNSEL

William Baker, Moreno & Associates, Chula Vista, Califor-
nia, for the petitioner.

Peter D. Keisler, William C. Peachey, Lyle D. Jentzer, Wash-
ington, D.C., for the respondent.


                        OPINION

PREGERSON, Circuit Judge:

   Jesus Romero (“Romero”) petitions for review of the Board
of Immigration Appeals’s (“BIA”) order denying his motion
to reopen and ordering him removed from the United States.
In removal proceedings, Romero applied for cancellation of
removal under 8 U.S.C. § 1229b(b). To qualify for that form
of relief, Romero was required to show that he was a person
6802                  ROMERO v. HOLDER
of “good moral character.” 8 U.S.C. § 1229b(b)(1)(B). The
BIA affirmed the finding of the Immigration Judge (“IJ”) that
Romero’s guilty plea to a first-time, simple possession drug
offense, which was deferred for eighteen months and then dis-
missed under a state rehabilitative statute, statutorily barred
Romero from proving good moral character. Because the BIA
erred by finding Romero statutorily barred from showing
good moral character on the basis of his guilty plea which was
later expunged, we grant the petition and remand for further
proceedings consistent with this opinion.

I.   FACTS AND PROCEDURAL HISTORY

   Romero was born in Mexico in July 1977. In February
1988, when Romero was ten years old, he accompanied his
mother into the United States. At that time, his mother pos-
sessed a valid Border Crossing Card, which permitted them to
remain in the United States for no more than seventy-two
hours. Romero has continuously resided in this country since
his entry. Both Romero’s parents are now lawful permanent
residents.

   In 1998, when Romero was twenty years old, he was
arrested for possession of a controlled substance in violation
of California Health and Safety Code § 11377(a). Romero
was allowed to participate in California’s drug rehabilitation
program under California Penal Code § 1000.

   Pursuant to the rehabilitation program, in April 1998,
Romero pled guilty to one count of simple possession of a
controlled substance, and the judge deferred entry of judg-
ment for eighteen months. When a defendant successfully
completes the deferred judgment program, the criminal
charges against him or her are dismissed. Cal. Penal Code
§ 1000.3 (stating that “[i]f the defendant has performed satis-
factorily during the period in which deferred entry of judg-
ment was granted, at the end of that period, the criminal
charge or charges shall be dismissed.”). Furthermore, follow-
                          ROMERO v. HOLDER                           6803
ing successful completion of the program, California Penal
Code section 1000.1(d) provides that the “plea of guilty . . .
shall not constitute a conviction for any purpose . . . .”

   If Romero successfully completed the program, the crimi-
nal charge against him was scheduled to be dismissed in
October 1999. Following Romero’s appearance in state court
on the drug charge, however, immigration officials1 detained
Romero and initiated removal proceedings against him, charg-
ing him as being removable for overstaying his visa.2 In
Immigration Court, Romero admitted the allegations and con-
ceded his removability, and in October 1998, he filed an
application for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b).

   To be eligible for cancellation of removal under section
1229b(b), Romero needed to satisfy four requirements: (1)
that he had been physically present in the United States for a
continuous period of not less than ten years immediately pre-
ceding the date of application, (2) that he had been a person
of good moral character during that period, (3) that he had not
  1
     Immigration proceedings were initiated against Romero by the Immi-
gration and Naturalization Service (“INS”). Effective March 1, 2003, the
INS ceased to exist and its functions were transferred to the Department
of Homeland Security. See Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135 (Nov. 25, 2002).
   2
     Initially, immigration officials charged Romero as having entered the
United States without inspection, which would have made him inadmissi-
ble at the time of his entry under 8 U.S.C. § 1182(a)(6)(A)(i), and there-
fore removable. 8 U.S.C. § 1227(a)(1)(A). Romero contested that charge
because he entered the United States at a port of entry with his mother
who had a valid Border Crossing Card, and therefore he had been
inspected. Immigration officials later withdrew the charge of entry without
inspection and instead charged Romero with being removable for over-
staying the lawful time permitted by his visa under 8 U.S.C.
§ 1227(a)(1)(B) and for failing to comply with his nonimmigrant status
under 8 U.S.C. § 1227(a)(1)(C)(i). Romero conceded that he was remov-
able under those charges.
6804                      ROMERO v. HOLDER
been convicted of an offense under § 1182(a)(2)3 and certain
other offenses not relevant here, and (4) that removal would
cause “exceptional and extremely unusual hardship” to
Romero’s lawful permanent resident parents. 8 U.S.C.
§ 1229b(b).

    In considering whether Romero was eligible for cancella-
tion of removal, the IJ considered two potential effects con-
cerning Romero’s controlled substance offense, which had not
yet been expunged. To satisfy the second eligibility require-
ment for cancellation of removal, Romero had to show that he
was a person of good moral character for a period of ten years
preceding the date of his application for cancellation. But a
person cannot be considered one of good moral character if he
or she was “convicted of, or . . . admits having committed, or
. . . admits committing acts which constitute the essential ele-
ments of” an offense under 8 U.S.C. § 1182(a)(2)(A) or (B).
8 U.S.C. § 1101(f)(3) (emphases added). The IJ determined
that if Romero’s state court guilty plea were classified as an
“admission” that he had committed a controlled substance
offense, Romero would be statutorily ineligible for cancella-
tion of removal because under 1229b(b)(1)(B) he would not
be considered to be a person of good moral character.

   On the other hand, if Romero’s controlled substance
offense were classified as a “conviction,” he could not satisfy
the third eligibility requirement for cancellation of removal
because he would be a person convicted of a controlled sub-
stance offense under 8 U.SC. § 1182(a)(2)(A)(i)(II). 8 U.S.C.
§ 1229b(b). The IJ held hearings to determine whether
Romero’s charged controlled substance offense should be
treated as a “conviction” under Congress’s 1996 definition of
that term under 8 U.S.C. § 1101(a)(48)(A)4, even though the
state court deferred judgment for eighteen months.
  3
     Under 8 U.S.C. § 1182(a)(2)(A)(i)(II), a person “convicted of, or who
admits having committed, or who admits committing acts which constitute
the essential elements of” a controlled substance offense is inadmissible.
   4
     Under 8 U.S.C. § 1101(a)(48)(A),
       The term “conviction” means, with respect to an alien, a for-
                          ROMERO v. HOLDER                            6805
   In February 1999, the IJ issued her decision. The IJ found
that Romero could not show good moral character, the second
requirement for cancellation of removal under 8 U.S.C.
§ 1229b(b). The IJ found that Romero admitted he had com-
mitted a controlled substance offense by pleading guilty in
state court. Accordingly, the IJ found that Romero could not
be considered a person of good moral character under 8
U.S.C. § 1101(f)(3), even though entry of judgment on the
controlled substance offense had not been entered but
deferred by the state court.

   The IJ found that Romero’s drug offense failed to meet
Congress’s new 1996 definition of a “conviction” as defined
by 8 U.S.C. § 1101(a)(48)(A). Specifically, the new definition
of “conviction” requires that a judge order “some form of
punishment, penalty, or restraint on the alien’s liberty to be
imposed.” 8 U.S.C. § 1101(a)(48)(A)(ii). The IJ found that the
requirement that Romero enroll in a deferred judgment/ AIDS
education program for three months was not a “form of pun-
ishment, penalty, or restraint on liberty to be imposed” within
the meaning of section 1101(a)(48)(A). Accordingly, the IJ
found that Romero satisfied the third requirement for eligibil-
ity for cancellation of removal because he was not “convict-
ed” of a controlled substance offense under 8 U.S.C. § 1182.
But because Romero could not satisfy section 1229b(b)’s sec-
ond eligibility requirement by showing good moral character,
the IJ ruled that Romero was not statutorily eligible for can-
cellation of removal and ordered him removed.

   mal judgment of guilt of the alien entered by a court or, if adjudi-
   cation of guilt has been withheld, where—
   (i) a judge or jury has found the alien guilty or the alien has
   entered a plea of guilty or nolo contendere or has admitted suffi-
   cient facts to warrant a finding of guilt, and
   (ii) the judge has ordered some form of punishment, penalty, or
   restraint on the alien’s liberty to be imposed.
6806                  ROMERO v. HOLDER
   In June 1999, Romero timely appealed to the BIA. While
Romero’s appeal was pending before the BIA, we issued our
opinion in Lujan-Armendariz v. INS, 

(9th Cir.
2000). In Lujan-Armendariz, we held that a first-time, simple
possession drug conviction expunged under the Federal First
Offender Act (“FFOA”) could not be used for immigration
purposes, nor could a state conviction expunged under a state
rehabilitative statute be used for immigration purposes, where
the defendant in the state action would have been eligible for
relief under the 

.

  In February 2003, the BIA dismissed Romero’s appeal. The
BIA concluded that the IJ’s determination that Romero’s state
court guilty plea was not a “conviction” was in accordance
with Ninth Circuit law as articulated in Lujan-Armendariz.
Accordingly, Romero satisfied the third cancellation of
removal requirement, because he was not “convicted” of a
controlled substance offense. 8 U.S.C. 1229b(b)(C).

   The BIA agreed with the IJ, however, that Romero’s guilty
plea constituted an “admission” of a violation of a law relat-
ing to a controlled substance which made him unable to dem-
onstrate that he was a person of good moral character under
8 U.S.C. 1101(f)(3). The BIA agreed with the IJ that Romero
was statutorily ineligible for cancellation of removal and dis-
missed the appeal.

   In April 2003, Romero timely filed a motion to reopen
before the BIA. Romero submitted new evidence with the
motion, showing that on April 8, 2003, nunc pro tunc to Octo-
ber 7, 1999, the state court set aside Romero’s guilty plea and
dismissed the charge against him after he successfully com-
pleted the drug rehabilitation program. Romero argued that
Lujan-Armendariz controverted the BIA’s finding that
Romero’s guilty plea constituted an “admission” rendering
him ineligible for cancellation of removal. Because the charge
against Romero had been dismissed, Romero argued that
under Lujan-Armendariz, the offense could not be used
                      ROMERO v. HOLDER                    6807
against him for any purpose. With the motion, Romero sub-
mitted copies of the relevant state court documents and
requested that the case be remanded to the IJ for consideration
of the new evidence and in light of Lujan-Armendariz. The
Government opposed the motion.

   In August 2003 the BIA denied Romero’s motion to
reopen. The BIA found that while the court documents relat-
ing to Romero’s conviction were not previously available to
Romero, “their contents [were] not sufficiently material to
warrant the reopening and remand of [Romero’s] case.” The
BIA explained that its earlier dismissal of Romero’s appeal
was not based on Romero’s controlled substance conviction,
but rather on Romero’s guilty plea. The BIA again held that
Romero could not show good moral character because
Romero’s guilty plea constituted an “admission” that he vio-
lated a law relating to a controlled substance offense. Because
the BIA found that the motion to reopen contained no new
facts material to the good moral character determination, it
denied Romero’s motion.

   In September 2003, Romero timely petitioned our court for
review. In April 2004, the Government filed an unopposed
motion to remand Romero’s case to the BIA so that the BIA
could consider whether Romero’s “participation and comple-
tion of California’s deferred-adjudication program could be
viewed as an admission (as opposed to a conviction for) his
violation of any law . . . relating to a controlled substance”
such that Romero could not show good moral character and
demonstrate eligibility for cancellation of removal. Specifi-
cally, the Government moved this court to remand the case in
light of our decisions in Dillingham v. INS, 

,
1003 (9th Cir. 2001), Lujan-Armendariz v. INS, 

(9th Cir. 2000), Paredes-Urrestarazu v. INS, 

, 811
(9th Cir. 1994), and Ramirez-Castro v. INS, 

,
1174-75 (9th Cir. 2002). Our court granted the motion in a
brief order and remanded to the BIA “so that it may consider
6808                  ROMERO v. HOLDER
the good moral character issue in light of” the same cases
cited by the Government in its motion.

   In January 2005, the BIA concurred in its August 2003 dis-
missal of Romero’s motion to reopen. The BIA observed that
our court had not provided any further guidance on the merits
of the case, that the record did not shed any further light on
the case, and that neither Romero nor the Government had
filed a brief on remand.

   Assuming that Romero was arguing that the agency erred
in finding that Romero’s drug possession offense could be
considered in determining Romero’s good moral character,
the BIA cited our decisions in United States v. Hovsepian,

, 1158 (9th Cir. 2004) (en banc) and Ramirez-
Castro v. INS, 

, 1174-75 (9th Cir. 2002), as
supporting its holding that “expunged convictions, such as
that of [Romero], can and should be used in assessing an
alien’s good moral character because the facts underlying
expunged convictions are relevant in the context of good
moral character determinations.”

   The BIA again found that Romero was ineligible for can-
cellation of removal because he could not establish good
moral character, and ordered Romero removed. Romero
timely petitioned for review.

II.    JURISDICTION AND STANDARD OF REVIEW

   We have jurisdiction pursuant to 8 U.S.C. § 1252. We
review the denial of a motion to reopen for abuse of discre-
tion. Perez v. Mukasey, 

, 773 (9th Cir. 2008).
The agency’s decision is only reversed if it is arbitrary, irra-
tional, or contrary to law. Singh v. INS, 

, 1039
(9th Cir. 2002) (quoting Ahwazi v. INS, 

, 1122
(9th Cir. 1985)). The BIA’s conclusions of law are reviewed
de novo. Ramirez-Castro v. INS, 

, 1174 (9th
Cir. 2002).
                     ROMERO v. HOLDER                   6809
   Where as here the BIA conducted a de novo review of the
IJ’s decision, we review only the decision of the BIA. Dil-
lingham v. INS, 

, 1004 (9th Cir. 2001).

III.   DISCUSSION

  A.   Romero Was Not Statutorily Ineligible to be Con-
       sidered of Good Moral Character.

   [1] Following Lujan-Armendariz, in cases involving first-
time simple possession drug convictions which could have
been tried under the FFOA but are instead prosecuted and
expunged under state law, “the expungement of the petition-
er’s conviction under state law eliminates the immigration
consequences of the offense.” 

(discussing Lujan-Armendariz). It is undisputed that
Romero’s conviction has been expunged pursuant to Califor-
nia law and that, had Romero been prosecuted in federal
court, he would have been eligible for expungement of his
drug offense under the FFOA. Accordingly, the expungement
of Romero’s conviction “eliminates the immigration conse-
quences of the offense.” 

supports the BIA’s holding that while
Romero’s expunged conviction cannot serve as a “conviction”
for immigration purposes, Romero’s guilty plea nevertheless
constitutes an admission that Romero committed a controlled
substance offense which bars a finding of good moral charac-
ter under 8 U.S.C. § 1101(f)(3).

   [2] We disagree. As we stated in Lujan-Armendariz, under
the FFOA, “the finding of guilt is expunged and no legal con-
sequences may be imposed as a result of the defendant’s hav-
ing committed the offense. The [FFOA’s] ameliorative
provisions apply for all purposes.” 

(first emphasis added). To allow the guilty plea
which preceded the expungement of the offense to constitute
an “admission” of a controlled substance offense would attach
6810                       ROMERO v. HOLDER
a legal consequence to the expunged offense, contrary to our
reasoning in Lujan-Armendariz.5

   Our decision in Dillingham also supports this conclusion.

. In Dillingham, the petitioner was convicted in
Great Britain of a first-time, simple drug possession charge.

The conviction was expunged in Great Britain. 

petitioner’s offense occurred in the United States, he
would have qualified for expungement under the FFOA. 

The petitioner later married a United States citizen
and sought to adjust his status based on that marriage. 

His application was denied because the immigration
authorities found that his earlier drug conviction rendered him
inadmissible and ineligible for adjustment of status. 

then sought to deport him for having overstayed his visa
and also on the basis of his expunged controlled substance
offense. 

   Under the version of 8 U.S.C. § 1255(a) in force at that
time, the petitioner in Dillingham had to be eligible to receive
an immigrant visa in order to adjust his status to that of a law-
ful permanent resident. 8 U.S.C. § 1255(a) (1988) (current
version at 8 U.S.C. § 1255(a) (2006)). Under the version of
  5
   The FFOA was adopted in 1970 and is a rehabilitation statute “that
applies exclusively to first-time drug offenders who are guilty only of sim-
ple possession.” 

. Under the FFOA, if
a person does not violate a probationary period set by the court, the court
may dismiss the proceedings against the person without entering a judg-
ment of conviction. 18 U.S.C. § 3607(a); see also Ramirez-Altamirano v.
Holder, 

, 805-08 (9th Cir. 2009) (discussing relief provided
by the FFOA).
   In the case of a defendant who was under the age of twenty-one at the
time of the offense, an expungement order restores the person to their sta-
tus before the arrest or criminal proceedings took place. 18 U.S.C.
§ 3607(c). After the court enters the expungement order, the person cannot
be found guilty of perjury or false swearing for failing to acknowledge or
recite the arrest “in response to an inquiry made of him for any purpose.”

                      ROMERO v. HOLDER                     6811
§ 1182(a) in force at that time, however, a person was ineligi-
ble to receive a visa if he or she was “convicted of, or who
admits having committed, or who admits committing acts
which constitute the essential elements of” a controlled sub-
stance offense. 8 U.S.C. § 1182(a)(2)(A)(II) (1988) (current
version at 8 U.S.C. § 1182(a)(2)(a)(II) (2006)).

   Although Dillingham was decided on constitutional equal
protection grounds, this court specifically rejected the Gov-
ernment’s argument that the petitioner’s guilty plea consti-
tuted an “admission” that he committed a controlled substance
offense, rendering him ineligible for a visa under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), and therefore ineligible for adjustment
of status under 8 U.S.C. § 

(stating
that “[w]e believe that under the terms of
[§ 1182(a)(2)(A)(i)(II)], . . . the fact that [the petitioner]
‘admitted’ his prior offense is of no greater consequence than
the conviction itself.”). Furthermore, after finding that the
petitioner in Dillingham was not “convicted” of a controlled
substance offense, we held that he was statutorily eligible to
seek adjustment of status, and remanded the case to the BIA
for a determination on his adjustment of status application. 

   [3] Had the petitioner’s guilty plea in Dillingham consti-
tuted an “admission” despite his offense not being a “convic-
tion” for immigration purposes, there would not have been
any need for such a remand, because the petitioner would
have been statutorily ineligible for the relief he sought. In
other words, implicit in Dillingham is the recognition that the
petitioner’s guilty plea in connection with his expunged, first-
time simple possession offense could not serve as an “admis-
sion” of a controlled substance offense once that offense was
expunged.

  B.   The Cases Cited to by the BIA are Inapposite.

  The BIA also cited to our holdings in Ramirez-Castro v.
INS, 

(9th Cir. 2002), and United States v.
6812                  ROMERO v. HOLDER
Hovsepian, 

(9th Cir. 2004) (en banc), to sup-
port its position. The BIA reasoned that in those cases we
“concluded that expunged convictions, such as that of
[Romero], can and should be used in assessing an alien’s
good moral character because the facts underlying expunged
convictions are relevant in the context of good moral determi-
nations.” Neither of those cases supports the BIA’s conten-
tion. The BIA failed to draw a crucial distinction between
cases in which petitioners could have been eligible for relief
under the FFOA, thus falling within the purview of Lujan-
Armendariz, and cases in which the petitioners would not be
eligible for relief under the FFOA, and whose expunged con-
victions may still carry immigration consequences.

   The petitioner in Ramirez-Castro was convicted of carrying
a concealed weapon in violation of California Penal Code
§ 12025(b) 

. The Government sought
to deport the petitioner under 8 U.S.C. § 1227(a)(2)(C) based
on that concealed weapon conviction. 

n.3. The
conviction was expunged pursuant to California Penal Code
§ 1203.4. 

The petitioner argued that because of
the expungement, the firearms offense did not qualify as a
“conviction” and that he was therefore not deportable for hav-
ing committed any such offense. 

-75.

   The BIA’s reliance on Ramirez-Castro is misplaced. We
carefully distinguished the offense committed by the peti-
tioner in Ramirez-Castro for carrying a concealed weapon
from the first-time simple possession drug offenses which fall
within the purview of Lujan-Armendariz. 

(observ-
ing that “Petitioner’s firearms conviction is not within the
scope of the Federal First Offender Act”). We dismissed the
petition in Ramirez-Castro, concluding that despite the
expungement of the petitioner’s offense under California law,
he stood convicted of the firearms offense for immigration
purposes. 

-76.

  Nor does our decision in Hovsepian provide support for the
BIA’s decision. Hovsepian also dealt with persons not eligible
                      ROMERO v. HOLDER                       6813
for relief under the FFOA. United States v. Hovsepian, 

(9th Cir. 2004) (en banc). As is relevant here, in
Hovsepian, the petitioners were convicted of criminal charges
relating to a plot to bomb the offices of the Honorary Turkish
Consul General in Pennsylvania. 

While ini-
tially they were both sentenced as adults, they were later re-
sentenced under the Federal Youth Corrections Act, 18 U.S.C.
§ 5021 (repealed 1984). 

The district court then
ordered their convictions set aside under the Federal Youth
Corrections Act, and further ordered their criminal records
sealed. 

Many years after the convictions, the
appellants sought to become United States citizens. 

The INS then sought to use the facts underlying one of
the petitioners’ expunged convictions to show that he was not
a person of good moral character, and thus unable to become
a citizen. 

see 8 U.S.C. § 1427(a)(3) (requiring an
application for United States citizen to show that he or she is
a person of good moral character).

  Sitting en banc, we held that:

    [E]ven if a conviction is set aside under [the Federal
    Youth Corrections Act], the facts underlying that
    conviction remain relevant in determining whether
    an applicant for naturalization can satisfy the
    requirement that he or she is of “good moral charac-
    ter.”

In so holding, however, we explicitly distin-
guished the type of convictions in Hovsepian from first-time
simple possession drug offenses. 

n.11 (citing

) (noting that “an expunged
conviction is not nullified for purposes of the immigration
laws unless it falls within the narrow exception established
for cases involving first-time simple possession of narcotics.”
(emphasis added)).

   The Government argues that Lujan-Armendariz is inappo-
site here because that opinion focuses on the use of an
6814                  ROMERO v. HOLDER
expunged conviction as a “conviction” under immigration
law, and does not address whether Romero’s guilty plea was
an “admission” of acts constituting a drug offense.

   [4] Use of Romero’s expunged offense as a “conviction” or
as an “admission” would have the effect of imposing a legal
consequence on him “as a result of [his] . . . having commit-
ted the offense.” 

. Our
case law does not support that result. Romero would have
been eligible for relief under the FFOA had his offense been
prosecuted under federal law. His offense has now been
expunged and the charge against him dismissed. The BIA
erred when it found that Ninth Circuit case law allowed
Romero’s expunged conviction to serve as an absolute bar to
his proving his good moral character.

IV.    CONCLUSION

   [5] We hold that the facts underlying a conviction that
would have been eligible for relief under the FFOA, but was
expunged under a state rehabilitative statute, cannot serve as
an “admission” of a drug offense, statutorily barring a finding
of good moral character under 8 U.S.C. § 1101(f)(3). Under
our case law, convictions are nullified for the purposes of
immigration law if they were expunged under the FFOA, or
if they were expunged under a state rehabilitative law but
could have been tried under the FFOA. The BIA therefore
erred when it found Romero statutorily ineligible for cancella-
tion of removal because he could not establish good moral
character.

   Accordingly, we grant the petition for review and remand
for further administrative proceedings consistent with this
opinion.

  The petition is GRANTED.