GRABER, Circuit Judge:
Petitioner Flavio Nunez-Reyes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") decision denying his application for cancellation of removal. We deny the petition. In the course of doing so, sitting as an en banc court, we overrule our equal protection holding in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000). We also conclude that, in light of the equities and other considerations, we will apply today's new rule only prospectively.
Petitioner entered the United States in 1992. In 2001, he was charged in state court with one felony count of possession of methamphetamine, in violation of California Health and Safety Code section 11377(a), and one misdemeanor count of being under the influence of methamphetamine, in violation of California Health and Safety Code section 11550(a). He pleaded guilty to both counts, but the state court eventually dismissed the charges under California Penal Code section 1210.1(e)(1), held unconstitutional in other part by Gardner v. Schwarzenegger, 178 Cal.App.4th 1366, 101 Cal.Rptr.3d 229 (2009). Under that provision, the state court "shall . . . set aside [the conviction] and . . . dismiss the indictment" if the defendant successfully completes a drug treatment program and meets other conditions. Cal.Penal Code § 1210.1(e)(1). "[E]xcept as provided [in other subsections], both the arrest and the conviction shall be deemed never to have occurred." Id.
In early 2002, the federal government issued a notice to appear, charging Petitioner with being removable. Petitioner conceded removability but applied for adjustment of status and cancellation of removal. The immigration judge ("IJ") denied all forms of relief and ordered Petitioner removed. The IJ held that the state convictions rendered Petitioner ineligible for any form of relief even though the state court later had dismissed the convictions. The BIA affirmed the IJ's decision.
Petitioner timely petitioned for review. A three-judge panel granted the petition because of our rule, first announced in
We then granted rehearing en banc. Nunez-Reyes v. Holder, 631 F.3d 1295 (9th Cir.2010) (order).
We review de novo the BIA's determination "that a controlled substance conviction precludes immigration relief as a matter of law." Ramirez-Altamirano, 563 F.3d at 804.
Does a state-court conviction for a simple-possession drug crime, later expunged by the state court, nevertheless constitute a "conviction" for federal immigration purposes? History has provided an ever-changing answer to that question. See In re O-T-, 4 I. & N. Dec. 265, 268 (B.I.A.1951) ("yes"); In re A-F-, 8 I. & N. Dec. 429, 445 (Att'y Gen.1959) ("no"); In re Werk, 16 I. & N. Dec. 234, 235-36 (B.I.A.1977) ("yes, in some circumstances"); Garberding v. INS, 30 F.3d 1187, 1190-91 (9th Cir.1994) ("no"); In re Manrique, 21 I. & N. Dec. 58, 62-64 (B.I.A.1995) ("no"). Against that backdrop, in 1996, Congress enacted significant changes to our immigration laws, which included a new definition of the term "conviction." 8 U.S.C. § 1101(a)(48)(A).
In Lujan-Armendariz, we addressed the effect of the new definition on a petitioner's expunged state conviction for a simple-possession drug crime. We began by considering whether a federal conviction, later expunged under the Federal First Offender Act ("FFOA"), nevertheless constitutes a "conviction" for immigration purposes. Importantly, the FFOA mandates that a successfully expunged federal conviction "shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose." 18 U.S.C. § 3607(b) (emphases added). We thoroughly examined the apparent conflict between the quoted text of the FFOA and the new definition of "conviction." Lujan-Armendariz, 222 F.3d at 734-43.
But we relegated to a footnote a very important additional step in the analysis: Did Congress have a rational basis for distinguishing between expunged federal
Since our decision in Lujan-Armendariz, the BIA and every sister circuit to have addressed the issue—eight in total—have rejected our holding. In re Salazar-Regino, 23 I. & N. Dec. 223, 235 (B.I.A.2002) (en banc); Wellington v. Holder, 623 F.3d 115, 120-21 (2d Cir.2010) (per curiam), cert. denied, ___ U.S. ___, ___ S.Ct. ___, 180 L.Ed.2d 245, 79 U.S.L.W. 3442 (U.S. June 6, 2011) (No. 10-933); Danso v. Gonzales, 489 F.3d 709, 716 (5th Cir.2007); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir.2005); Resendiz-Alcaraz v. U.S. Att'y Gen., 383 F.3d 1262, 1271-72 (11th Cir.2004); Elkins v. Comfort, 392 F.3d 1159, 1163-64 (10th Cir.2004); Acosta v. Ashcroft, 341 F.3d 218, 224-27 (3d Cir. 2003); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-98 (8th Cir.2002); Herrera-Inirio v. INS, 208 F.3d 299, 304-09 (1st Cir.2000). The BIA held:
In re Salazar-Regino, 23 I. & N. Dec. at 235.
Having reconsidered the issue, we now agree with the BIA and our sister circuits. A very relaxed form of rational basis review applies to this inquiry: "[F]ederal classifications based on alienage are subject to relaxed scrutiny. Federal classifications distinguishing among groups of aliens thus are valid unless wholly irrational." Garberding, 30 F.3d at 1190 (citation and internal quotation marks omitted); see also Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir.2009) (en banc) (per curiam) ("Congress has particularly broad and sweeping powers when it comes to immigration, and is therefore entitled to an additional measure of deference when it legislates as to admission, exclusion, removal, naturalization or other matters pertaining to aliens."), cert. denied, ___ U.S. ___, 130 S.Ct. 3272, 176 L.Ed.2d 1182 (2010). That standard easily is met here. The Third Circuit put it well:
Acosta, 341 F.3d at 227. Another rational basis exists as well:
Nunez-Reyes, 602 F.3d at 1107 (Graber, J., concurring).
In conclusion, we hold that the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA. We therefore overrule Lujan-Armendariz's holding to the contrary. By necessity, we also overrule the same holding in those cases that, bound by stare decisis, followed the rule we announced in Lujan-Armendariz. Those cases include Romero v. Holder, 568 F.3d 1054 (9th Cir. 2009); Ramirez-Altamirano, 563 F.3d 800; Dillingham, 267 F.3d 996; and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir.2000).
Having decided to overrule Lujan-Armendariz, we next consider whether to apply the new rule of law only prospectively. The default principle is that a court's decisions apply retroactively to all cases still pending before the courts. Federal courts may depart from that default principle only in certain circumstances, as outlined in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Below, we first explain that the three-factor Chevron Oil test remains good law, at least in cases, such as this one, where we announce a new rule of law not affecting our jurisdiction. Balancing the three factors described in Chevron Oil, we conclude that we will apply our decision only prospectively.
The circumstances that justify a deviation from the normal rule of retroactivity have a long jurisprudential history. In the criminal context, the Supreme Court originally held that prospective application was appropriate in some circumstances. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). But the Court later overruled Linkletter in favor of a bright-line rule: In criminal cases, any new rule of law must be applied retroactively. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
In the civil context, the Supreme Court originally announced a three-factor test of general applicability in Chevron Oil. Under the Chevron Oil test, equitable considerations in some circumstances warrant prospective application of a new rule of law. But the Court has limited, in two relevant ways, the circumstances in which the Chevron Oil test applies.
First, a court announcing a new rule of law must decide between pure prospectivity and full retroactivity; what Justice Souter termed "selective prospectivity," in which courts weighed the equities on a case-by-case basis, is foreclosed.
Second, in cases in which the new rule of law strips the courts of jurisdiction, the courts must apply that new rule of law retroactively. See United States ex rel. Haight v. Catholic Healthcare W., 602 F.3d 949, 953 (9th Cir.) (citing United States ex rel. Eisenstein v. City of New York, ___ U.S. ___, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009); Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007)), cert. denied, ___ U.S. ___, 131 S.Ct. 366, 178 L.Ed.2d 150 (2010); Felzen v. Andreas, 134 F.3d 873, 877 (7th Cir. 1998) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). "Equitable considerations are altogether irrelevant when a court lacks adjudicatory power." Felzen, 134 F.3d at 877.
We glean from this jurisprudential history the following rule of law: We apply the three-pronged test outlined in Chevron Oil (1) in a civil case; (2) when we announce a new rule of law, as distinct from applying a new rule that we or the Supreme Court previously announced; (3) and when the new rule does not concern our jurisdiction. See, e.g., George v. Camacho, 119 F.3d 1393, 1399 n. 9 (9th Cir. 1997) (en banc).
Like some of our sister circuits, we acknowledge that the Supreme Court's reasoning in cases such as Harper could support a conclusion that the Chevron Oil test no longer applies in any circumstances: all new rules of law must be applied retroactively. See, e.g., Kolkevich v. Att'y Gen. of U.S., 501 F.3d 323, 337 n. 9 (3d Cir.2007) (observing that, "as some commentators have noted, it is unclear whether we have the power" to apply a new rule of law prospectively in light of Harper, but not reaching the issue); Fairfax Covenant Church v. Fairfax Cnty. Sch. Bd., 17 F.3d 703, 710 (4th Cir.1994) (noting that, in Harper, "the Supreme Court cast serious doubt" upon the continuing "vitality" of the Chevron Oil test). But the Supreme Court has not overruled the Chevron Oil test in the circumstances described above. See Glazner v. Glazner, 347 F.3d 1212, 1216-17 (11th Cir.2003) (en banc) ("Although prospectivity appears to have fallen into disfavor with the Supreme Court [citing Harper, James B. Beam, and Griffith], the Court has clearly retained the possibility of pure prospectivity and, we believe, has also retained the Chevron Oil test, albeit in a modified form, as the governing analysis for such determinations in civil cases."); Fairfax Covenant Church, 17 F.3d at 710 ("We are struck, however, by the notable absence in Harper of any statement that Chevron [Oil] is overruled. . . ."); but see Hulin v. Fibreboard Corp., 178 F.3d 316, 333 (5th Cir.1999) (concluding, in dictum, that "[t]he Court's most recent decisions . . . leav[e] only an
In this civil case, we announce a new rule of law that does not concern our jurisdiction. The Chevron Oil test applies.
The three Chevron Oil factors are: (1) whether the decision "establish[es] a new principle of law"; (2) "whether retrospective operation will further or retard [the rule's] operation" in light of its history, purpose, and effect; and (3) whether our decision "could produce substantial inequitable results if applied retroactively." 404 U.S. at 106-07, 92 S.Ct. 349 (internal quotation marks omitted). There is no question that our decision today "establish[es] a new principle of law . . . by overruling clear past precedent on which litigants may have relied." Id. at 106, 92 S.Ct. 349. Lujan-Armendariz clearly announced the rule that equal protection required that we treat expunged state drug convictions as we do expunged federal drug convictions. Just as clearly, we overrule that holding today.
Further, amici assert—and the government does not dispute—that, because of the clarity and consistent application of Lujan-Armendariz for more than a decade, aliens and their counsel have acted in reliance on Lujan-Armendariz. According to amici, aliens often have pleaded guilty to minor drug crimes and have completed drug treatment in order to have their convictions expunged—all in reliance on Lujan-Armendariz's promise that doing so would spare them from adverse immigration consequences.
"There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions." INS v. St. Cyr, 533 U.S. 289, 322, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
Our decision in Lujan-Armendariz provided clear assurance that expungement after a plea of guilty to the state crime of simple drug possession would insulate the alien from adverse immigration consequences. "Even if the defendant were not initially aware of [Lujan-Armendariz], competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the [decision's] importance." St. Cyr., 533 U.S. at 323 n. 50, 121 S.Ct. 2271. Indeed, in a situation similar to this one, where the immigration consequences are "succinct, clear, and explicit," the Supreme Court has held that an alien's counsel who fails to inform the alien of those consequences has provided ineffective assistance. Padilla, 130 S.Ct. at 1483.
After our decision today, alien defendants will know that an expunged state-law conviction for simple possession will have adverse immigration consequences.
For those aliens who relied on Lujan-Armendariz, however, "[t]he potential for unfairness in the retroactive application" of today's decision "is significant and manifest." St. Cyr, 533 U.S. at 323, 121 S.Ct. 2271. Those aliens were assured that, after completion of drug treatment, there
For similar reasons, we conclude that the second Chevron Oil factor is met: In light of the rule's history, purpose, and effect, retroactive application will not further the rule's operation. 404 U.S. at 106-07, 92 S.Ct. 349. As we now make clear, Congress intended that convictions for state-law simple possession have adverse immigration consequences. At first glance, it may appear that retroactive application of today's decision would further that purpose. After all, the state-law convictions occurred, and Congress intended that such convictions have adverse immigration consequences.
But Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime; Congress intended such results only for those who were duly convicted, with all the constitutional protections of our criminal justice system. Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights. As discussed above, many alien defendants fell into neither category. Instead, they pleaded guilty and waived their constitutional rights with a wholly uninformed understanding of the consequences of their plea. Contrary to their understanding that there would be no immigration consequences, the actual consequence is the severe penalty of removal. Nothing in the statute or its history, purpose, or effect suggests that Congress intended adverse immigration consequences for those whose waiver of constitutional rights turned out to be so ill-informed. Indeed, the Supreme Court has instructed that such a gross misunderstanding of the immigration consequences of a plea, when caused by incompetent counsel, rises to the level of a constitutional violation. Padilla, 130 S.Ct. at 1486-87. We conclude that retroactive application of our decision today will not further the purposes of the immigration laws.
Weighing the Chevron Oil factors, we hold that our decision today will apply only prospectively. Cf. Glazner, 347 F.3d at 1220 ("If this were truly a situation where the class of persons affected by the new rule would suddenly face a strong likelihood of liability when they faced no possibility of liability before, we would be inclined to view the equities as weighing heavily in favor of pure prospective application."). For those aliens convicted before the publication date of this decision, Lujan-Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan-Armendariz is overruled.
Because our decision applies only prospectively, we apply the rule announced in Lujan-Armendariz to the petition for review in this case. In Lujan-Armendariz, we held that an expunged conviction for simple possession did not constitute a "conviction" for immigration purposes. In later cases, we held that an expunged conviction for a "lesser offense" to simple possession also did not constitute a "conviction" for immigration purposes. Ramirez-Altamirano, 563 F.3d at 808-09; Cardenas-Uriarte, 227 F.3d at 1137. In those cases, it was clear that the conviction was for a "lesser offense" because the alien was convicted of a single crime that carried a lesser penalty than the crime of simple possession. See Ramirez-Altamirano, 563 F.3d at 808 ("The structure of [the alien's] plea agreement obviously was intended to minimize his culpability by allowing him to avoid facing the more serious drug possession charge, and reflects the state's view as to the seriousness of the offense.").
Here, however, Petitioner was convicted of being under the influence of methamphetamine. Being under the influence is not a lesser crime than simple possession. Although we have held that possession of paraphernalia is a lesser crime than possession of a drug itself, at least where the defendant pleaded down from an original charge of simple possession, Cardenas-Uriarte, 227 F.3d at 1137, being under the influence is not a possession crime at all, and it is thus qualitatively different from any federal conviction for which FFOA treatment would be available. Being under the influence is not a lesser offense to simple possession because it arguably is more serious than mere possession; being under the influence alters one's sober state of mind and carries an immediate risk of dangerous behavior, which mere possession does not necessarily create. For example, one could foolishly agree to hide drugs for a friend, which does not create an immediate risk of dangerous behavior. We therefore overrule Rice v. Holder, 597 F.3d 952 (9th Cir.2010).
IKUTA, Circuit Judge, with whom Judges O'SCANNLAIN and CALLAHAN join, concurring in part, dissenting in part, and concurring in the judgment:
In overruling the equal protection holding of Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), see Maj. op. at 688-90, the majority corrects a longstanding error in our case law, and I concur in both its reasoning and its result. Having corrected one error, however, the majority then commits another, holding that its overruling of Lujan-Armendariz will apply prospectively only. Because the majority fails to heed the Supreme Court's warning that prospective decisionmaking is appropriate (if ever) only in certain circumstances
In Harper v. Virginia Department of Taxation, the Supreme Court's most recent opinion on the prospective application of judicial decisions, the Court expressed grave concerns about whether prospective decisionmaking is ever permissible. 509 U.S. 86, 97-98, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). Harper represents only the latest in a series of Supreme Court decisions that have severely curtailed the power of courts to engage in prospective decisionmaking and have articulated a more traditional view of the judicial power. See Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 201, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (Scalia, J., concurring in the judgment) ("[T]he judicial role . . . is to say what the law is, not prescribe what it shall be."); see also Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ("Our general practice is to apply the rule of law we announce in a case to the parties before us. . . . We adhere to this practice even when we overrule a case." (citation omitted)).
The Supreme Court began experimenting with prospective decisionmaking during the 1960s. In Linkletter v. Walker, the Court created a doctrine under which courts could deny retroactive effect to a newly announced rule of criminal procedure. 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In Chevron Oil Co. v. Huson, it established a similar doctrine for civil cases. 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Over the next decade or so, the Supreme Court applied both of these doctrines in a number of cases, justified by a range of rationales of varying strength. See James B. Beam Distilling Co. v. Georgia (Beam), 501 U.S. 529, 536, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (citing cases); United States v. Johnson, 457 U.S. 537, 543-45, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (same).
The Court's return to a more traditional view of judicial power began with United States v. Johnson. Expressing dissatisfaction with its prior non-retroactivity jurisprudence and declaring that "[r]etroactivity must be rethought," Johnson, 457 U.S. at 548, 102 S.Ct. 2579 (quoting Desist v. United States, 394 U.S. 244, 258, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting)) (internal quotation marks omitted), Johnson cut back on Linkletter by holding that (subject to certain exceptions) "a decision of th[e] [Supreme] Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered." Id. at 562, 102 S.Ct. 2579. It was left to Griffith v. Kentucky, however, to bring the era of criminal non-retroactivity to a close. 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In Griffith, the Court overruled Linkletter and held that "a new rule [of criminal procedure] is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception[s]." Id. at 328, 107 S.Ct. 708. In explaining its decision, the Court stated that the Linkletter doctrine violated two of the "basic norms of constitutional adjudication." Id. at 322, 107 S.Ct. 708. First, it violated the "nature of judicial review" because it allowed a court to decide on a new rule of law but then refuse to "apply that rule to all similar cases pending on direct review." Id. at 322-23, 107 S.Ct. 708. Second, Linkletter's "selective application of new rules violate[d] the principle of treating similarly situated [parties] the same." Id.
It is true that Griffith left the civil non-retroactivity doctrine of Chevron Oil untouched. See id. at 322 n. 8, 107 S.Ct. 708.
The Justices' misgivings regarding non-retroactivity in the civil context found expression in the Court's opinion in Harper. Justice Thomas, in his opinion for the Court, stated:
Harper, 509 U.S. at 97, 113 S.Ct. 2510. The Court explained that it was imposing this rule to further the same "basic norms of constitutional adjudication" that had caused it to eliminate nonretroactivity in the criminal context in Griffith. Id. (internal quotation marks omitted). The Court noted that the "general rule of retrospective effect" for judicial decisions has "governed `[j]udicial decision[making] . . . for near a thousand years.'" Id. at 94, 113 S.Ct. 2510 quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 54 L.Ed. 228 (1910) (Holmes, J., dissenting). In direct contrast to this general rule, the (power to "make rules of law retroactive or prospective as [one] see[s] fit" is "quintessentially" a legislative prerogative.) Id. at 95, 30 S.Ct. 140; see also Griffith, 479 U.S. at 323, 107 S.Ct. 708 ("In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation." (quoting Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in the judgment)) (internal quotation mark omitted)). Thus, Harper said, courts "ha[ve] no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently." 509 U.S. at 97, 113 S.Ct. 2510 (quoting Am. Trucking Ass'ns, 496 U.S. at 214, 110 S.Ct. 2323 (Stevens, J., dissenting)) (internal quotation mark omitted).
Although the reasons for severely limiting non-retroactive decisionmaking are clearly set out in Harper, the Court did not expressly overrule Chevron Oil.
Chevron Oil sets forth three factors we must consider when determining whether a decision should be applied prospectively only. When narrowly construed, as required by Harper, these factors do not clearly support applying our decision overruling Lujan-Armendariz non-retroactively; indeed, one factor weighs heavily against a prospective-only application. In addition, both practical and jurisprudential considerations strongly encourage compliance with the Supreme Court's preferred approach of full retroactivity.
The first factor in the Chevron Oil test is whether "the decision to be applied nonretroactively. . . establish[es] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil, 404 U.S. at 106, 92 S.Ct. 349 (citation omitted). Construed narrowly, this first factor aims at identifying those judicial decisions that unexpectedly enunciate a novel principle of law which may unfairly take litigants by surprise. Our abrogation of Lujan-Armendariz does not meet this criteria; instead, it brings our circuit in line with the rest of the nation. Lujan-Armendariz has long been an outlier in the context of national immigration law; as noted by the majority, since it was decided, "the BIA and every sister circuit to . . . address[ ] the issue—eight in total" have soundly rejected its holding.
The second factor requires us to "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Id. at 106-07, 92 S.Ct. 349.
As the majority acknowledges, Congress's enactment of a broad definition of "conviction" in IIRIRA, see 8 U.S.C.
The majority's contrary conclusion is based on its "assumption" that Congress could not have intended to apply the statute to aliens who may have waived their constitutional rights in reliance on our erroneous precedent. See Maj. op. at 694. This assumption, of course, arises solely from the majority's belief that Congress would balance the equities the same way it does. But we must discern Congress's intent from the language of the statutes it enacts, not from our own perspectives on policy. See United States v. Gonzales, 520 U.S. 1, 9-10, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (noting that where "the straightforward language" of a statute "leaves no room to speculate about congressional intent," courts should not "carve out statutory exceptions based on judicial perceptions" of good policy). There is no support in the statute for the majority's claim that "retroactive application will not further the rule's operation." Maj. op at 694. Indeed, by substituting its own intent for that of Congress, the majority usurps Congress's legislative "prerogative" to make its enactments "retroactive or prospective as [it] see[s] fit," Harper, 509 U.S. at 95, 113 S.Ct. 2510, and effectively eliminates Chevron Oil's second factor for any case where a statute is involved (because a court can always impute its own views on equity to Congress). This approach is contrary to Chevron Oil and also expands its scope, contrary to Harper.
The third factor instructs us to inquire whether our decision "could produce substantial inequitable results if applied retroactively." Chevron Oil, 404 U.S. at 107, 92 S.Ct. 349 (internal quotation marks omitted). Given the diversity of relief provided by state expungement statutes, including statutes that allow expungement even when an alien is convicted of drug offenses at trial, see, e.g., Cal.Penal Code §§ 1210, 1210.1(e), it is impossible to know the extent to which aliens waived their constitutional rights in reliance on Lujan-Armendariz. See Maj. op. at 693. But even assuming that aliens did waive their trial rights in the expectation of subsequently avoiding immigration consequences for their offenses, and that defeating such expectations would produce inequitable results, a full consideration of the equities cannot ignore the inequities that will result from the majority's application of its new rule nonretroactively. The majority's decision will create significant inequities between
The majority exacerbates this inequity by choosing to overrule Rice v. Holder, 597 F.3d 952 (9th Cir.2010), retroactively, see Maj. op. at 695-96, while overruling Lujan-Armendariz and its other progeny only prospectively, see Maj. op. at 690, 694-95. Under Harper, because the majority applies its new rule abrogating Rice to Nunez-Reyes, this abrogation "must be given full retroactive effect in all cases still open on direct review." Harper, 509 U.S. at 97, 113 S.Ct. 2510. In other words, the majority has singled out one unlucky sub-class (aliens who may have relied on Rice) from the larger class it has created (aliens who may have relied on Lujan-Armendariz and its progeny) with no apparent justification other than the fact that Nunez-Reyes's case happened to fall within the purview of Rice.
In sum, because courts generally "ha[ve] no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently," Harper, 509 U.S. at 97, 113 S.Ct. 2510 (quoting Am. Trucking Ass'ns, 496 U.S. at 214, 110 S.Ct. 2323 (Stevens, J., dissenting)) (internal quotation mark omitted), the Chevron Oil exception to retroactivity must be treated as a narrow one. At a minimum, then, we should apply the exception only where all three factors clearly favor prospectivity. Because here the second Chevron Oil factor weighs heavily against non-retroactive application, and neither of the other factors provides strong support for a purely prospective decision, Chevron Oil does not support the majority's decision.
Where the factors of Chevron Oil do not overwhelmingly support the disfavored approach of non-retroactive application, we should instead give effect to the "general rule of retrospective effect for . . . constitutional decisions" that the Supreme Court reaffirmed in Harper. Id. at 94, 113 S.Ct. 2510 (quoting Robinson v. Neil, 409 U.S. 505, 507, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973)). Here, practical and jurisprudential considerations also weigh heavily in favor of retroactive application of our ruling.
Practical concerns are crucial in the area of immigration law, because regulating immigration is the prerogative of the legislative branch. See Garcia-Ramirez v. Gonzales, 423 F.3d 935, 953 (9th Cir.2005) (Gould, J., concurring) ("[T]he Constitution gives the superordinate role to Congress, and not to the federal courts, in regulating the flow and content of immigration to the United States."). Because Congress has "exclusive power over immigration," we have frequently stressed the paramount importance of national uniformity in this area. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir.2004) (noting the "strong interest in national uniformity in the administration of immigration laws"); Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir.1994) ("The INA `was designed to implement a uniform federal policy,' and the meaning of concepts important to its application are `not to be determined according to the law of the forum, but rather require a uniform federal definition.'" (alteration omitted) (quoting Rosario v. INS, 962 F.2d 220, 223 (2d Cir.1992))). By applying
The Supreme Court has emphasized the substantial jurisprudential concerns that weigh against non-retroactivity; in fact, the Justices seem to speak directly against the approach adopted by the majority. Justice Souter, joined by Justice Stevens, asserted in Beam that "the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case." Beam, 501 U.S. at 543, 111 S.Ct. 2439 (Souter, J., announcing the judgment of the Court). Justice Blackmun, joined by Justices Marshall and Scalia, wrote that "[t]he nature of judicial review constrains us to consider the case that is actually before us, and, if it requires us to announce a new rule, to do so in the context of the case and apply it to the parties who brought us the case to decide." Id. at 547, 111 S.Ct. 2439 (Blackmun, J., concurring in the judgment of the Court). Justice Scalia recognized that judges in a real sense "make" law, but stated that "they make it as judges make it, which is to say as though they were `finding' it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be." Id. at 549, 111 S.Ct. 2439 (Scalia, J., concurring in the judgment). These perspectives commanded a majority of the Court in Harper. Where, as here, the Chevron Oil factors do not clearly support non-retroactivity, the majority's insistence that our ruling be given only prospective application cannot be squared with Harper and with the Justices' underlying concerns.
Instead of straining to make the law fit its notion of good policy, the majority should have followed the advice of Harper and reserved prospective decisionmaking for the rare case where all three Chevron Oil factors clearly point toward doing so. Because the majority has abjured this wiser course, I respectfully dissent.
PREGERSON, Circuit Judge, with whom Judge B. FLETCHER joins, dissenting:
Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), holds that equal protection of the laws is violated by denying Federal First Offender Act ("FFOA") relief to aliens whose first-time minor drug offenses were expunged by a state-court judge after the offender successfully completed a state-approved rehabilitation program. The majority overturns this well-established circuit precedent and in doing so overturns a number of our cases that followed the Lujan-Armendariz rule. In addition to the three-judge panel opinion in this case, these overturned cases include Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), Romero v. Holder, 568 F.3d 1054 (9th Cir.2009), Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir.2009), Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001), and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir.2000). The majority throws out more than ten years of our precedent without so much as a cursory
To make matters worse, the majority denies the petition for review in this case even though it decides to apply its new rule denying state offenders FFOA relief for state-expunged first-time drug convictions prospectively only. The result is that the petitioner will be separated from his citizen wife and two American-born children because of a minor drug conviction—one that a California state judge expunged because the petitioner successfully completed a state rehabilitation program. Such a result is unjust. The majority compounds that injustice by ensuring that thousands of minor drug offenders will suffer the same cruel separation from their families in the days ahead.
America is a second-chance nation. Each year, thousands of people, some of them immigrants to this country, are caught up in our justice system by making the mistake of committing a minor drug offense. But Congress through the FFOA has seen fit to give those folks who commit the most minor drug offenses an opportunity—a second chance—to redeem themselves through rehabilitation, and thereafter walk a straight and narrow path to become productive members of society and a credit to their families. For some immigrants, including thousands of lawfully-admitted residents, this second chance also means being able to stay in the country with their families intact. The majority's abandonment of our precedent today means that first-time minor drug offenders within our circuit who have fully complied with their state's stringent rehabilitation programs, and who have had their minor convictions expunged by a state court judge, nonetheless will be subject to removal from the United States. For them, there will be no second chance. Thousands of families will be rendered asunder, and tens of thousands of American-born children will suffer the consequences. This harsh result, I submit, is repugnant to the values of kindness, compassion, and fundamental fairness.
I therefore strongly dissent.
This dissenting opinion starts out where the majority should have, by examining the Board of Immigration Appeal's ("BIA") decision in the case now before us. Analyzing Nunez-Reyes's petition for review, I adhere to Lujan-Armendariz and its progeny. Because the majority walks away from the Lujan-Armendariz rule only prospectively,
Flavio Nunez-Reyes ("Nunez-Reyes") is a thirty-five-year-old national of Mexico who entered the United States without
In 2001, Nunez-Reyes was charged with one felony count of possession of methamphetamine, in violation of California Health & Safety Code § 11377(a). This felony charge was later reduced to a misdemeanor. Nunez-Reyes was also charged, under the same complaint, with using or being under the influence of methamphetamine, in violation of California Health & Safety Code § 11550(a). The charges against Nunez-Reyes were ultimately dismissed pursuant to California's expungement statute for drug possession offenses, which states that the state court "shall . . . set aside [the conviction] and . . . dismiss the indictment" if the defendant successfully completes probation and that "both the arrest and the conviction shall be deemed never to have occurred." Cal.Penal Code § 1210.1(e)(1).
In early 2002, the federal government charged Nunez-Reyes under 8 U.S.C. § 1182(a)(6)(A)(i) as a removable alien. Nunez-Reyes conceded removability but applied for adjustment of status, cancellation of removal, and, alternatively, voluntary departure. The Immigration Judge ("IJ") held that the state conviction rendered Nunez-Reyes ineligible for any form of relief. The BIA affirmed the IJ's decision and held that Nunez-Reyes could not avail himself of relief under the FFOA because his conviction for using or being under the influence of methamphetamine was "not one for which federal first offender treatment would be available." The BIA reasoned that the FFOA applies only to simple possession offenses, and that being under the influence of methamphetamine is not a simple possession offense. While recognizing that our court has applied FFOA treatment to convictions for "lesser offenses," the BIA held that Nunez-Reyes had not pleaded down from a charge of simple possession and that being under the influence of methamphetamine is not a "lesser offense" than that of simple possession.
The matter came before our court on appeal. Under de novo review, we faithfully applied our precedent, which holds that state-expunged first-time drug possession dispositions that would be eligible for FFOA treatment are not convictions for purposes of the immigration laws. Nunez-Reyes v. Holder, 602 F.3d 1102, 1104 (9th Cir.2010) (per curiam) (citing Lujan-Armendariz, 222 F.3d at 734-49, and Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.1994)). Under the law of our circuit, FFOA treatment also applies to a "lesser offense" than that of simple possession of a controlled substance. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1137 (9th Cir.2000) (noting that congressional intent indicated that the lesser crime of possession of drug paraphernalia should be given FFOA treatment). Thus, under the FFOA,
Ramirez-Altamirano, 563 F.3d at 812 (citation omitted). Nunez-Reyes easily met the first, second, and fourth requirements
Importantly, the panel relied on our court's recent decision in Rice v. Holder, 597 F.3d 952, 957 (9th Cir.2010), where we held that a misdemeanor conviction for being under the influence of a controlled substance qualifies as a "lesser offense" eligible for FFOA treatment. In Rice, the petitioner was charged with one felony count of possession of cocaine and one misdemeanor count of using or being under the influence of a stimulant under California law.
In Rice, we granted the petition for review and held that "persons convicted of using or being under the influence of a controlled substance, where that offense is less serious than simple drug possession, are eligible for the same immigration treatment as those convicted of drug possession under the FFOA." Id. at 957. Following the precedent set forth in Cardenas-Uriarte, 227 F.3d at 1137, we reasoned that there was "no relevant distinction. . . between the offenses of possession of drug paraphernalia and using or being under the influence of a controlled substance, as both are generally less serious than simple possession." Rice, 597 F.3d at 956; see also Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir.2005). We further noted that "we can be sure that using or being under the influence of a controlled substance is a lesser offense because it is a misdemeanor while possession of cocaine is a felony."
As Judge Graber's concurrence to the panel opinion correctly points out, Rice "answered the legal questions raised in [Nunez-Reyes's] case, and no factual distinction exists." Nunez-Reyes, 602 F.3d at 1105 (Graber, J., concurring) (emphasis added). According to our precedent, then, Nunez-Reyes is eligible for FFOA treatment and his state-expunged convictions cannot be used as grounds to deny him relief from removal. The three-judge panel granted Nunez-Reyes's petition and remanded for further proceedings. Id. The panel got it right.
Yet, Judge Graber's en banc majority opinion now holds that Nunez-Reyes's petition for review should be denied. It does
The majority's reasoning is flawed. "Our review is limited to the actual grounds relied upon by the BIA." Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir.2009) (citation omitted). "If we conclude that the BIA's decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case." Id. The BIA distinguished this case from Lujan-Armendariz because Nunez-Reyes was charged and "convicted under California law for using or being under the influence of methamphetamine." The BIA found Nunez-Reyes's conviction for using or being under the influence of methamphetamine "not analogous to any offense for which federal first offender treatment would be available," and therefore held that the conviction's dismissal was "not akin to an FFOA expungement." In short, the BIA stated that using or being under the influence of methamphetamine did not qualify for FFOA treatment because it was neither a simple possession offense nor a "lesser" offense than simple possession of methamphetamine.
However, "[u]nder these circumstances, concluding that [using or being under the influence of a controlled substance] is not included in the First Offender Act would frustrate congressional intent and lead to an absurd result." Cardenas-Uriarte, 227 F.3d at 1137. Congress intended the FFOA "as a limited federal rehabilitation statute that permits first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases." Lujan-Armendariz, 222 F.3d at 735. Nunez-Reyes's conviction for using or being under the influence of methamphetamine is the "least serious type of drug offense." In contrast to Nunez-Reyes's felony possession of methamphetamine charge, his conviction for using or being under the influence of methamphetamine was a misdemeanor. See Cal. Health & Safety Code §§ 11377(a), 11550(a). And Nunez-Reyes's drug use is not even a federal crime: there is no equivalent federal criminal statute that prohibits using or being under the influence of a controlled substance. See 21 U.S.C. §§ 841-865. If being under the influence "arguably is more serious than mere possession . . .[,]" Maj. Op. at 695, the majority fails to explain why neither Congress nor the State of California chose to treat it as such. Thus, by denying Nunez-Reyes the benefit of FFOA treatment for his expunged conviction for using or being under the influence of drugs, the majority not only frustrates the intent of Congress but also ignores the criminal statutory schemes of both Congress and California, which both treat using or being under the influence as a "least serious type of drug offense."
Nor does the distinction between simple possession and using or being under the influence of drugs make sense under these circumstances. Congress criminalized the possession of drugs, at least in part, because it did not want people to use drugs. Thus, given the underlying purpose of the FFOA, the FFOA's rehabilitative scheme logically applies to protect first time drug users, along with first time drug possessors, "against the harsh consequences that
By way of analogy, we have previously held that 8 U.S.C. § 1227(a)(2)(B)(i)—an exception to the automatic removability of aliens convicted of "a single offense involving possession for one's own use of 30 grams or less of marijuana"—implicitly applies to both possession and actual use of marijuana. See Medina, 393 F.3d at 1066. This "`makes absolute logical sense'" because "use of drugs `has generally been considered a less serious crime than possession.'" Id. (quoting Flores-Arellano v. INS, 5 F.3d 360, 363, n. 5 (9th Cir.1993)). Here, as in Medina, "[i]t defies reason to conclude that Congress wanted to protect a person who possessed [methamphetamine] in small amounts for his own use, but then wanted to remove him from the country if he did so use it." Id. Thus, distinguishing between possession of drugs and their use, allowing only the former to qualify for FFOA treatment, frustrates congressional intent and leads to absurd results.
Moreover, had Nunez-Reyes been prosecuted by the federal government rather than by the State of California, he would have been charged only with simple possession of methamphetamine because, as mentioned previously, there is no federal criminal statute prohibiting using or being under the influence of a controlled substance. See 21 U.S.C. §§ 841-865. As we noted in Rice, "[a]s with possession of drug paraphernalia, `Congress would never have considered including' under the FFOA the offense of using or being under the influence of a controlled substance, because no federal statute covers that crime." Rice, 597 F.3d at 956 (quoting Cardenas-Uriarte, 227 F.3d at 1137, and citing 21 U.S.C. §§ 841-865); see also Ramirez-Altamirano, 563 F.3d at 808. In fact, federal law imposes only a civil penalty for possession of a controlled substance in "an amount that, as specified by regulation of the Attorney General, is a personal use amount. . . ." 21 U.S.C. § 844a. Thus, Nunez-Reyes would have qualified for FFOA treatment had he been fortunate enough to have been caught by federal agents rather than by state officers.
To support its position, the majority claims that in Cardenas-Uriarte, 227 F.3d at 1137, and Ramirez-Altamirano, 563 F.3d at 808-09, "it was clear that the conviction was for a `lesser offense' because the alien was convicted of a single crime that carried a lesser penalty than the crime of simple possession." Maj. Op. at 695. Contrary to this reasoning, however, neither case relies on the number of convictions or on the fact of "possession." In Cardenas-Uriarte, possession of drug paraphernalia under Arizona law was considered a "lesser offense" not because it was the only offense the petitioner had pleaded to, but because "it would be a misdemeanor once probation was successfully completed while possession of the drugs would have been a felony." 227 F.3d at 1137. In Ramirez-Altamirano, the possession of drug paraphernalia offense under California law was considered a "lesser offense" because "it would be absurd to deny [FFOA] relief to individuals who possess the utensils incidental to drug ingestion but grant relief to those who possess the actual illicit drugs," not because the petitioner pleaded guilty to only the misdemeanor paraphernalia possession charge. 563 F.3d at 809. Thus, in neither case was the number of offenses or the fact of "possession" dispositive. The majority's conclusion, therefore, remains unsupported.
It is difficult to square the majority's prospective-only application of the new rule it sets out today with the denial of
The majority's review of the BIA's opinion flawed. Additionally, it remains unclear why the majority opinion even reaches the issue of Lujan-Armendariz's viability. The BIA, in Nunez-Reyes's case, distinguished Lujan-Armendariz to the majority's satisfaction, but, puzzlingly, the opinion devotes the bulk of its efforts to overruling Lujan-Armendariz. Because we must limit our review to grounds actually discussed by the BIA, this ruling is out of bounds and entirely improper. Pascua v. Holder, 641 F.3d 316, 318 (9th Cir.2011).
Moreover, the majority overrules Lujan-Armendariz on constitutional grounds without addressing the independent statutory justification, on which Lujan-Armendariz expressly relied, for excluding state-expunged dispositions from the definition of "conviction." 222 F.3d at 739-43, 745-46. Prudence counsels that we exert more effort before abandoning such long-established, eleven-year-old precedent.
In Lujan-Armendariz, based in part on an equal protection analysis, we held that "persons whose offenses would qualify for treatment under the [FFOA] but who are convicted and have their convictions expunged under state laws may not be removed on account of those offenses." 222 F.3d at 732. In so holding, Lujan-Armendariz faithfully adhered to congressional intent underlying the FFOA in "permit[ting] first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases." Id. at 735.
Given the FFOA's directive that dispositions eligible for FFOA relief "shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose," 18 U.S.C. § 3607(b) (emphases added), we must give meaning to the statute within the immigration context. As both the majority and the Supreme Court recognize, "deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." Maj. Op. at 693 (citing Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1480, 176 L.Ed.2d 284 (2010)). And there can be little doubt that the "particularly severe `penalty'" of removal, id. at 1481, is one of the most "drastic consequences" that results from a drug conviction. To fully effectuate Congress's intent to insulate first-time drug offenders who complete expungement programs from the extremely
Keeping these principles in mind, even if the equal protection analysis set forth in Lujan-Armendariz is abandoned, it does not follow that state-expunged first-time drug offense convictions are ineligible for FFOA treatment. In Lujan-Armendariz, we did not consider what effect the 1996 amendment to the term "conviction," promulgated in 8 U.S.C. § 1101(a)(48)(A), had on state expungements specifically. Instead, we held that the 1996 amendment did not repeal the FFOA and we then simply extended this conclusion to state expungements on the basis of equal protection. 222 F.3d at 742-43. Put another way, Lujan-Armendariz's equal protection rationale had necessary force only absent an answer to the question of "what effect the new definition[of conviction] has on state expungements under state rehabilitation laws in general." 222 F.3d at 742. Assuming that Lujan-Armendariz's equal protection analysis no longer stands, we must now engage in this statutory analysis.
Congress's 1996 amendment to the term "conviction" suggests that it had no intention of altering the BIA's decisions to include state- and federally-expunged convictions from that term. The majority, in leaping to the conclusion that equal protection is not violated because Congress could have made a decision to treat similarly-situated aliens differently under rational basis review, declines to engage in any analysis, through statutory interpretation or otherwise, of whether Congress actually intended to do so. The majority simply assumes that "Congress intended that convictions for state-law simple possession have adverse immigration consequences," Maj. Op. at 694, but fails to explain from where it divines such congressional intent. We should not prematurely review Congress's purported distinction between state and federal expungement under a cursory form of rational basis review without first looking at the relevant statutes to determine whether Congress actually intended for such a distinction to exist.
In 1996, Congress addressed the meaning of the term "conviction" by enacting the following definition:
8 U.S.C. § 1101(a)(48)(A).
The legislative history behind the 1996 amendment to the definition of "conviction" fully supports the conclusion that state-expunged first-time drug possession offenses are not "convictions" under § 1101(a)(48)(A) of the INA. 222 F.3d at 739-43. In enacting 8 U.S.C. § 1101(a)(48)(A), Congress adopted most of the BIA's definition of "conviction," as it was laid out in Matter of Ozkok, 19 I. & N. Dec. 546, 551-52 (BIA 1988). Notably, the amended definition makes no mention of "the rule, cited with approval by the BIA in Ozkok, that expunged convictions cannot serve as the basis for deportation."
We have previously acknowledged that the 1996 amendment to the definition of "conviction" in § 1101(a)(48)(A) "said nothing about expungement, and could well be interpreted to establish only when a conviction occurred without determining what might be the effect of a later expungement." Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.2001) (citing to Lujan-Armendariz, 222 F.3d at 741-42). And, notably, consistent with every other circuit, the majority does not overrule Lujan-Armendariz's holding that the 1996 amendment to the definition of "conviction" in § 1101(a)(48)(A) of the INA did not expressly or impliedly repeal the FFOA. Its holding thereby leaves intact the FFOA's exception for expunged first-time controlled substance offenses from the definition of "conviction." See Lujan-Armendariz, 222 F.3d at 737.
Thus, in enacting the 1996 amendment, "it appears that Congress was concerned primarily . . . with the question whether aliens could be deported during the period that followed a determination of guilt but preceded the expungement of the offense," but had no intention of altering the longstanding rule that convictions that are subsequently expunged under either federal or state law "no longer have any effect for immigration" purposes. Id. at 742 n. 23. Congress's decision to enact essentially verbatim the majority of Ozkok's definition of conviction, while excluding only one part of that definition that has no bearing here, makes it particularly appropriate to read § 1101(a)(48)(A) as incorporating the agency's treatment of expunged convictions. Evidently, Congress approved the rule established by the BIA in Manrique and recognized in Ozkok.
An analysis of the relevant statutes and their history reveals an independent justification for excluding first-time minor drug offenses expunged under state law from the definition of "conviction" in § 1101(a)(48)(A). Congress evidently approved of the long-standing principle that state-expunged first-time simple possession convictions do not carry adverse immigration consequences and, in enacting the 1996 amendment, had no intention of disturbing it.
In failing to reach this statutory question and instead relying only on its equal
After the 1996 amendments to § 1101(a)(48)(A), the BIA reversed its previous course and held that the 1996 definition of "conviction" includes convictions expunged under state rehabilitative statutes. In re Salazar-Regino, 23 I. & N. Dec. 223, 235 (BIA 2002) (en banc). Pursuant to this interpretation, the BIA, since 2002, has refused to follow in other circuits our circuit's application of FFOA treatment to first-time drug offenses expunged under state law. Id. at 235 (stating that the BIA "decline[s] to apply the ruling in[Lujan-Armendariz] to cases arising outside of the jurisdiction of the Ninth Circuit"). In so doing, the BIA has implicitly rejected the statutory rationale for treating state and federal expungements equally, and has instead relied only on the equal protection holding of Lujan-Armendariz on appeals within this circuit.
We need not, however, defer to the BIA's interpretation of the term "conviction" as it is used in § 1101(a)(48)(A). Deference to the BIA's interpretation of a "statute which it administers" is proper under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Deference to the BIA's interpretation of the definition of "conviction" as used in § 1101(a)(48)(A), however, is entirely inappropriate, because that term is used not only for purposes of immigration law, but also in the criminal law context. Specifically, § 1101(a)(48)(A)'s definition of conviction controls the meaning of the term in the federal illegal reentry statute, 8 U.S.C. § 1326, and is correspondingly referenced in the United States Sentencing Guidelines. Because "a criminal statute[ ] is not administered by any agency but by the courts," its interpretation is our independent responsibility. Crandon v. United States, 494 U.S. 152, 177, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990); see also de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir.2007) (stating that no deference is owed to the BIA's interpretation of statutes it does not administer, including the FFOA).
The Supreme Court has decided many cases concerning the term "aggravated felony"—which, like "conviction," is defined in § 1011(a) and used in § 1326—without deferring to the BIA and without applying the Chevron framework. See, e.g., Carachuri-Rosendo v. Holder, 560 U.S. ___, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010); Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009); Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006); Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). Similarly, here, we must conduct our own interpretation of the statute and need not defer to the BIA's interpretation of "conviction." Because construction of this term has consequences for the administration of criminal law, it is the independent duty of the judiciary, and not the BIA, to assign to the term a meaning.
Relatedly, even if, in discharging our duty, we were to find that § 1101(a)(48)(A) is ambiguous, its application in the criminal law context requires us to "resolve the ambiguity favorably to the alien, pursuant to the principle of lenity applicable with respect to the gravity of removal." Retuta v. Holder, 591 F.3d 1181, 1189 (9th Cir. 2010) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), and Lara-Cazares v. Gonzales, 408 F.3d 1217, 1221 (9th Cir.2005)). The
As the previous analysis reveals, an independent statutory justification can rescue the state-expungements holding of Lujan-Armendariz and its progeny. Nonetheless, that decision was properly decided on the basis of its equal protection analysis. I reject the majority's equal protection analysis in this case, by which it overrules Lujan-Armendariz.
The rule we articulated in Lujan-Armendariz derives from our holding in Garberding v. INS, 30 F.3d 1187, 1191 (9th Cir.1994). Under Garberding, "persons who received the benefit of a state expungement law were not subject to deportation as long as they could have received the benefit of the [FFOA] if they had been prosecuted under federal law." Lujan-Armendariz, 222 F.3d at 738. Garberding's equal protection analysis focused on whether similarly-situated aliens could be treated differently based on their conduct. Id. "Garberding . . . establishes that aliens may not be treated differently based on the `mere fortuity' that they happen to have been prosecuted under state rather than federal law, or under different state laws, as there is no rational basis for distinguishing among the affected groups." Id. at 748. Lujan-Armendariz simply adopted and applied that same principle after finding that Congress's new definition of "conviction" had not repealed the FFOA's first-time offense exception. Id. at 742. We applied equal protection because "no rational basis exists for affording [FFOA] relief to an alien under federal expungement law while denying relief to identically situated aliens who qualify for similar treatment under state expungement laws." Id. at 743 n. 24.
The majority offers two purportedly rational bases for not extending FFOA treatment to aliens whose convictions have been expunged under state law. First, the majority adopts the rationale offered by the Third Circuit in Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir.2003), that
This rationale, however, is belied by the fact that the FFOA requires that the offender "has not, prior to the commission of [a simple possession] offense, been convicted of violating a Federal or State law relating to controlled substances." 18 U.S.C. § 3607(a)(1). If Congress was worried that state criminal justice schemes, overwhelmed by heavy caseloads, might allow dangerous offenders to plead down, they presumably also recognized that offenders could simply plead to something other than a violation of a controlled substances law and thereby achieve the same result.
Moreover, the Supreme Court has recently held, in the context of determining what constitutes an "aggravated felony," that the immigration consequences of state convictions must be applied as if the offense had been prosecuted in federal court. See Lopez v. Gonzales, 549 U.S. at 47, 127 S.Ct. 625; Carachuri-Rosendo, 130 S.Ct. at 2577. If Congress is willing to acknowledge that state convictions have force in the federal immigration context, it seems wholly inconsistent to assume that Congress
The second purportedly rational basis offered by the majority is slightly more plausible. Because not all states have expungement schemes, the majority offers, "Congress reasonably could have concluded that, in the strong interest in uniformity, it would not recognize any state expungements rather than adopt a piecemeal approach." Maj. Op. at 690 (citing Nunez-Reyes, 602 F.3d at 1107 (Graber, J., concurring)).
This rationale, however, is also flawed. First, under the majority's reasoning, Congress's hypothetical interest in uniformity cuts both ways. The majority opinion assumes that Congress's interest in uniformity in the immigration context requires leveling down to the lowest common denominator and excluding all state-expunged convictions from FFOA treatment. But the FFOA ensures its own uniformity by providing that all offenses expunged under the Act will not be regarded as convictions "for any . . . purpose." 18 U.S.C. § 3607(b). There is no reason to believe that Congress's interest in uniformity among the states is more important than Congress's interest in uniformity in the treatment of first-time drug offenders whose convictions have been expunged.
Notably, aliens whose state convictions have been expunged are not similarly situated to those whose states have no expungement schemes in place. Aliens whose convictions were expunged under state expungement schemes have undergone court-mandated rehabilitation. The FFOA was passed to ensure that those first-time offenders who undergo rehabilitative measures and ultimately get their charges dismissed or their convictions expunged are afforded a second chance. The only aliens who meet this criteria are those in states with expungement schemes. Unlike the disparity created by the majority, then, distinguishing between aliens in states with expungement schemes and those in states that do not have expungement schemes survives rational basis review and undermines neither Congress's intent under the FFOA, nor states' rehabilitative schemes.
Second, I note that any alien, from any state, may have his first-time federal drug offense expunged under the FFOA and that offense can no longer be considered as a basis for removal. It is not the case, therefore, that affording state expungements FFOA treatment would render aliens from states without state expungement schemes entirely ineligible for FFOA treatment, while those from states with expungement schemes would qualify for such treatment. Any and all may receive such treatment for federal convictions expunged under the FFOA. To the contrary, then, FFOA treatment of state expungements ensures that aliens from states that offer alternatives to federal expungement programs are not severely punished merely because they were presented with and took such an alternative.
There is simply no principled reason why Congress should treat offenses subject to state expungement differently from identical or lesser offenses that would have been eligible for FFOA treatment had they been prosecuted as federal crimes. Equal protection considerations prohibit unequal treatment of similarly-situated individuals. See Garberding, 30 F.3d at 1190. Aliens who have committed identical offenses and have their convictions expunged, whether directly through the FFOA or as a result of a state rehabilitation scheme, are similarly situated. Under
Lujan-Armendariz's equal protection analysis was based in part on the irrationality of treating aliens differently based on the "mere fortuity" whether a federal prosecutor sends a drug case to the state prosecutor or chooses to keep it, or vice versa. 222 F.3d at 738 (citing Paredes-Urrestarazu v. INS, 36 F.3d 801, 811 (9th Cir.1994)). Without the equal treatment afforded under Lujan-Armendariz, this unfettered prosecutorial discretion may now be exercised to dispositively determine whether an individual's first-time drug offense will yield extremely harsh immigration consequences; that is, whether any particular defendant will benefit from the FFOA. This result is unsettling, to say the least.
Our precedent requires that we give extra deference to Congress in the immigration context. Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir.2009). But we cannot allow "rational basis review" to serve as a rubber stamp to what a hypothetical Congress might have intended. "Justifications for overruling one of our court's longstanding precedents should be made of sterner stuff. . . . We must place some rational bounds on what survives rational basis review if the constitutional right of equal protection is to have any meaning whatsoever outside the context of suspect classifications." Id. at 1210 (9th Cir.2009) (Clifton, J., concurring); see also id. at 1215 (Thomas, J., dissenting) ("[I]n order to be rational, the reason must be consistent[.]"). Until now, employing the rational basis test, we treated similarly-situated first-time drug offenders equally. I see no reason to abandon that practice, particularly when any rational basis now offered is no more or less true today than it was eleven years ago when we decided Lujan-Armendariz.
The majority offers what it believes to be some consolation to non-citizen first-time drug offenders: from now on, "aliens will be able to make a fully informed decision whether to plead guilty or to exercise their constitutional rights, such as the right to trial by jury." Maj. Op. at 693. But it will be of little comfort to aliens charged with first-time possession offenses that their decision to plead or go to trial will be rendered with full awareness of the immigration consequences of such a conviction. Non-citizens will no longer be able to avoid the most drastic consequence of all—removal—by pleading guilty. This will further undermine state rehabilitative schemes because it will remove a tremendous incentive for first-time drug offenders to plead guilty. As amicus point out, this change in the cost-benefit analysis directly eviscerates the effectiveness of states' rehabilitative statutes that, like the FFOA, aim to remove the legal consequences of a minor, first-time drug offense for those offenders who successfully complete their probationary requirements and undergo drug treatment.
Finally, the notion that state expungement programs should be given different or less significant treatment than their federal counterparts is directly at odds with the principle of "comity" and respect
There is one thing on which we all can agree: "Reliance on the clear, binding precedent of Lujan-Armendariz strikes us as entirely reasonable and prudent, particularly in light of Congress's inaction, the Supreme Court's steady denial of certiorari in cases raising this issue, and our own consistent application (and, arguably, expansion) of the precedent in a series of cases spanning more than a decade." Maj. Op. at 693 n.6. To this list of reasons we can add one more: the holding in Lujan-Armendariz itself is entirely reasonable and prudent. Moreover, there is no compelling reason why we should overrule Lujan-Armendariz without first engaging in a thorough statutory analysis. Such an analysis reveals that Congress never intended to exclude state-expunged first-time drug possession dispositions from the definition of "conviction" in § 1101(a)(48)(A) of the INA.
For all of the foregoing reasons, I would grant Nunez-Reyes's petition for review and hold that his two misdemeanor convictions are eligible for FFOA treatment. While the rational basis test sets a low bar, there is simply no indication that Congress intended to deny FFOA treatment to aliens with state-expunged first-time minor drug offenses who have successfully undergone a state-approved program that resulted in their rehabilitation. In fact, the majority's opinion serves to undermine Congress's evidenced intent. Unless and until we are willing to engage in a thorough analysis of the definition of "conviction" under the INA, we should adhere to the principle of stare decisis and demonstrate restraint. This is particularly true where, as here, reexamining and casting aside our precedent is unnecessary to deciding the case before us. Because the majority ultimately reaches further than it needs to, without digging deeper than it ought to, I dissent.
8 U.S.C. § 1101(a)(48)(A).
Id. at 543, 111 S.Ct. 2439. Justice White noted that "if the Court in [Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984),] thought its decision to have been reasonably foreseeable and hence not a new rule, there would be no doubt that it would be retroactive to all similarly situated litigants." Id. at 544-45, 111 S.Ct. 2439 (White, J., concurring in the judgment). Justice Blackmun (joined by Justices Marshall and Scalia) wrote:
Id. at 547, 111 S.Ct. 2439 (Blackmun, J., concurring in the judgment) (citations omitted). Justice Scalia (joined by Justices Marshall and Blackmun) wrote:
Id. at 549, 111 S.Ct. 2439 (Scalia, J., concurring in the judgment) (citations omitted).
Second, the majority notes that "[t]he parties and amici have presented no evidence that litigants have relied on our very recent decision in Rice." Maj. op. at 695 n. 7. This purported distinction of Rice is also unpersuasive: the parties and amici provided as much "evidence" of reliance on Rice as they did of reliance on any of the other cases. In a word: none. Rather, the "evidence" of reliance cited by the parties and amici amounted to little more than assertions that the defense bar knew of our prior case law and so informed their clients. Of course, that case law included not only Lujan-Armendariz, but also its progeny. See, e.g., Brief for Drug Policy Alliance et al. as Amici Curiae Supporting Petitioner at 6 n.4, 9, Nunez-Reyes v. Holder, No. 05-74350 (9th Cir. Oct. 29, 2010) (explaining that "established criminal defense practice in states within the Ninth Circuit" is based on "the Lujan-Armendariz line of decisions," which includes Lujan-Armendariz and eight other decisions).
