F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J E R R Y A D ALB E R

T O V I L L A V I C E N C I O

R O J A S , P etitioner ,

v

.
L O R E T T A L Y

N C H , Attorney

General Respondent

. N o. 13-70620

Ag ency No. A096-316-079

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals
Argued and Submitted D ecember 11, 2015—Pasadena, California

F iled F ebruary

2, 2016

B efore: Ronald M. Gould and Marsha S. B erz on, Circuit J u dg es, and J ack Z o uhary , * District J udg e.

O pinion by

J udg e Z ouhary ; Concurrence by

J udg e B erz on

* T h e Ho n o rab le J a ck Z o uh ary , Un ited States District J u d g e f o r th e No rth ernDistrict o f

Oh io , sittin g b y

d esig n atio n

.V I L L A V I C E N C I O -R O J

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SUMMARY * *

Im m igration

The panel g ranted J erry Villavicencio-Rojas’ petition for review of the B oard of Immi g r ation Appeals’ summary
a f f i rmance of an Immig ration J udg e’s decision holding tha t Villavicencio’s two e x pung ed d rug possession convictions retained their immig ration consequences and thus barred him from relief from removal.

The p anel held that the I J erred in concluding that Villavicencio’s two possession counts barred him from firstoffender treatment under the Fe d eral F irst Offender A ct (“F F OA”), 18 U.S.C. § 3607(a). The panel held that the two counts, for possession of marijuana and pos s e s s i on o f methamphetamine, amounted to a sing le “offense” under the F F OA, because they

arose out of a sing le event, composed a

s i n g le criminal case, and trig g ered a sing le, undivide d sentence.
Concurring , J udg e B e rz on wrote that althoug h she would reach the same result as the majority , she would find that the languag e and structure of the F F OA supports the conclusion that it could in narrow c ircumstances apply to more than o ne offense.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co nv en i en ce o f

th e read er.V I L L A V I C E N C I O -R O J

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COUNSEL

Paul A. Dulin (arg

ued), L aw Office of Paul A. Dulin, Escondido, California; Moby P. DeTorres, Torres L aw F irm, San Dieg o, California, for Petitioner.

Stuart F

. Delery , J esse M. B less, a n d Anh-Thu P. Mai-W indle (arg ue d ) , United States Department of J ustice, Office o f Immig r ation L itig ation, W ashing ton, D.C., for Respondent.

OP INION

Z O UHARY, District J udg e :

The D epartment o f Homeland Security (“DHS”) charg ed Petitioner J erry Villavicencio-Rojas with removability

. Villavicencio applied for a status adjustment b ased on his wife’s U.S. citiz enship, but a n immig ration judg e f

o und his two prior drug convictions barred him f rom relief. The B oard of Immig ration Appeals summarily a f firmed. Villavicencio now petitions for review.

I

. Villavicencio, a Guatemalan c i tiz en, entered the United States illeg ally in 1992. He is married to a U.S. citiz e n

. In October 2 008, DHS charg ed V illavicencio with being present in the United States without admis s i o n o r parole. Villavicencio conceded removability b ut soug ht c ancellation of removal and a status adjustment based on his marriag e.

Two months later, Villavicencio pled guilty to misdemeanor marijuana posse ssion and methamphetamineV I L L A V I C E N C I O -R O J

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possession under California law. T he charg es stemmed from

a sing le e vent o n the same day and formed two c ounts of o ne criminal c ase. In J anuary 2009, a state judg e s entenced Villavicencio to a total of 180 d ay s in jail f or both counts. A f ter his release, Villavicencio successfully petitioned t h e court to e x pung e his convictions under Cal. Penal Code §§ 1203.3–1203.4.
Despi t e t h is later ex pung ement, an immig ration judg e found the two c o n v i ctions retained their immig r ation consequences and barred Villavicencio from canc ellation o f removal or adjustment of status. Villavicenci o a r gued the two convictions were ex cused under the F ederal F i r s t Offender Act (“F F OA”), 1 8 U.S.C. § 3607(a), because they stemmed from a sing le event a n d we r e packag ed a

nd sentenced tog ether by the state c ou rt

. The I J disag r eed, concludingthat the F F OA applies only to a defendant found guilty of a sing le possession count involving a singl e drug

. Villavicencio a

ppealed to the B IA, whic h a f f irmed the I J ’s decision without opinion.

I I

.
W h ere, as here , the B oard summarily affirms the I J ’s decision, this Court rev i e w s the I J ’s decision as the final ag ency action. Sanchez v. Holder , 7 0 4 F .3d 1107, 1109 (9th Cir. 20 1 2 )

. W hether Villavicencio’s convictions bar him from discretionary relief is a question of law reviewed de

novo

. See Coronado v. Holder , 7 5 9 F .3d 977, 982 (9th Cir. 2014).V I L L A V I C E N C I O -R O J

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I I I

.
An alien subject to removal may ask the Attorney General to adjust his status “to that of an a lien lawfully admitted for permanent residence if the alien is elig ible to recei v e a n immig rant visa and is adm i s s i b le to the United States for permanent r esidence.” 8 U

. S

. C

. § 1255(i)(2). B ecause an alien convicted of an offense “relating to a controlled substance” is g enerally inad m i s s ible, the alien bears the burden of showing a

ny such convictions do not b a r adjustment of his status o r cancellation of r emov a l. S e e id. §§ 1182(a)(2)(A)(i)(I

I ), 1229a(c)(4)(A)(i), 1229b(b)(1)(C).

This Court held in Lujan-Armendar i z v. I NS that

ex p ung ement under a st at e l aw analog ous to the F F O A eliminates any immig ration consequences th at would otherwise stem from that conviction. 222 F .3d 728, 7 49 (9th Cir. 2000). Thoug h this Court later overruled LujanArmendariz en banc, it did so only prospectively

. See NunezReyes v. Holder , 646 F .3d 684, 687 (9th Cir. 2 011) (en banc). The parties ag ree that Nunez-Reyes does not bar Villavicencio from relief, as his convictions occurred before 2011.

The F F OA provi des individuals found guilty of simple drug possession the opportunity to enter a diversion prog ram and avoid e ntry o f a judg ment of conviction. Under 18 U.S.C. § 3607(a), first-offender treatment is available to any “person fou n d gu ilty of an offense described in section 404 of the Controlled Substances A ct” who “has not, prior to the commission of such offense, been convicted of violating a F ederal or State law relating to controlled substances” and has not previously received the benefit of first-of f e n d e r treatment.V I L L A V I C E N C I O -R O J

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The d ispute here centers on whether Villavicencio w a s found guilty of “an offense” g iven that he pled guilty to two counts of drug possession. Villavicencio argue s h i s two counts should be considered one “offense” because they arose out of a sing le event, followed by a sing le criminal case with

one case number, and the court sentenced him to 1 8 0 day s o f imprisonment without a llocating separate time to e ach c ount. Moreover, the pa r t i e s d o not d ispute that Villavicencio h ad not been convicted of a controlled substance offense “prior to the commission o f” the two counts. 18 U.S.C. § 3607(a)(1).

The F F OA’s purpose supports Villavicencio’s position. W e previously recogniz ed that the F F OA “permits first-time drug offenders who commit the least serious ty pe of d rug offense to avoid the drastic conse qu ences which ty pically fo l l o w a finding of gu ilt in drug cases.” Lujan-Armendariz , 222 F .3d at 735. And leg islative history sug g ests the F F O A

was intended to avoid “ mak[ ing ] felons of our y oung men a nd

wome n who come into contact with drug s on a first occasion.” Cardenas-Uriarte v. INS , 227 F. 3 d 1 1 32, 1137 (9th Cir. 2000) (quoting 116 Cong

. Rec. 33304 (Sept. 23, 1970) (stateme nt of Rep. Rog ers)), overruled by NunezReyes , 646 F .3d at 687.

Moreover, we have i m

p l i c i tly acknowledg ed that multiple counts arising o ut of the same e vent are not an absolute bar to first-offender treatment, as the Government sug g ests. See, e.g. , Rice v. Holder , 597 F .3d 9 5 2 , 956–57 (9th Cir. 2 010) (allowing first-offender treatment where petitioner was f ound guilty of t w o separate d

rug counts and declining to address the Government’s argument that these counts c onstituted two separate offenses under the F FOA), overruled by NunezReyes , 646 F .3d at 695.V I L L A V I C E N C I O -R O J

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Neither of the cases c i t e d by the Government dictate otherwise. See de Jesus Melendez v

. Gonzales , 5 03 F .3d 1019 ( 9th Cir. 2007); Aguiluz-Arellano v

. Gonzales , 446 F .3d 980 ( 9th Cir. 2006). They merely hold that f irst-offe nder t reatment is n ot available to petitioners who have a l r e a d y been convicted of or received first-offender treatment for an offense committed y ears before the offense in quest i o n – a proposition that is c learly contemplated b y the statute a nd has

no bearing on the facts here. See 18 U.S.C. § 3607(a)(1)–(2) (restricting F F OA treatment t o offenders who “ha[ ve] not, prior to the commission of such offense, been convicted o f violati n g a F ederal or State law relating to controlled substances” and “ha[ ve] not previously been the subject of a disposition under this subsection”).

The I J erred in concluding Villavicencio’s two counts o f drug possession would bar him from first-offender treatment under the F F OA. We hold the two counts amount to a sing le “offense” under the F F OA because they arose out o f a sing le event, composed a sing le criminal case, and tri gge r ed a sing le, u n d i v ided sentence. W hile he was charg ed with possession of two different drug s, that alone does not chang e Villavicencio’s status as a first-time drug offender under the F F OA.

I V.

Villavicencio also argues the B IA erred in summarily affirming the I J ’s d ecision. Given the novel i s s u e r a ised in Villavicencio’s a

ppeal, the B oard likely should have issued a written opinion. B ut, as the G overnment arg ues, any error here does not require remand for consideration of the issue in the first instance because it “is purely leg al and . . . involves

an interpretation of the F F O A, a statute which the B IA is notV I L L A V I C E N C I O -R O J

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charg ed with administering .” Aguiluz-Arellano , 446 F .3d at 984.

V.

The pet i t i on f

or review is g ranted, and the c ase is remanded to the ag ency to d e t ermine whether Villavicencio is otherwise entitled to discretionary relief.

G RANTED AND REMANDED.

B ERZ ON, Circuit J udg e , concurring :

I w ould reach the same result as the major ity , but on
s lig htly different r easoning

. In my view, the langu ag e a n d structure of § 3607(a) supports the conclusion that the statute can, in narrow circumstances, apply to more than one offense,

w h e t h er committed at the same time or different times, a s long as both conditions in the remainder of the statuto ry provision are met.

The p hrase “an offense described in section 404 of the Co n t r o l l ed Substances Act” is, in my view, most naturally read a s identifying the kind of offense trig g ering coverag e o f the st atute, not as limiting the coverag e to a sing le criminal offense. I f a sta t u t e said that the max imum sentence for “an offense” under a specified p rovision is X, no one would think that th e m ax imum would not a p p ly to each such offense, o r that a d efendant who committed two such offenses could be subject only to a s i n g le max imum, rather than to d ouble the

max imum.V I L L A V I C E N C I O -R O J

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This interpretation is reinforced b y the provisions that do state the applicable limitatio n s : “I f a p erson found guilty o f

an o ffense descr i b e d i n section 404 of the Controlled Su b stances Act

. . . (1) has not, p r ior to the commission o f

s u c h o ffense, been convicted o f violating a F ederal or St a t e law relati n g t o controlled substances; and (2) h as not previously been the subject of a disposition under this section

. . . .” § 3607(a). Read in the contex t of these limitations, the “an offense” phrase refers to each offense of the kind covered

— that is, one described in s e ct i o n 4 04 of the Controlled Substances Act

— if the offender meets the statutory criteria

— that is, it occurred b efore conviction of a ny other controlled substances offense, and the offender was not previously accorded f

irst-offender treatment under § 3607(a). Those criteria are temporal, and so can app l y t o m ore than

one offense, as long as the timing requirements a re met. Had Cong r ess meant to impose as a th i r d l i m itation that the individual not have committed, or been charg ed with, another

c o n t rolled substance offense before commission of the current offense, it could have said that. I t didn’t.
So, in my view, whether otherwis e -covered o ffenses occurred on one occasion or two does n o t m a tter. This interpretation makes sense g iven the statutory purpose. As the majority recounts , the statute a ccords its benefits to those who are fir s t o f

f enders at the time of the offense o f conviction, meaning that they a r e n o t recidivists who have proven unreformed despite their earlier encounter with the criminal just i c e sy stem. Given that focus, why should it matter whethe r a defendant was discovered with both marijuana and another d

rug at the same time or on successive day s, or whether the sentence i m p o sed was undivided o r specific to each offense, a s long as e ach offense occurredV I L L A V I C E N C I O -R O J

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before a ny earlier ex posure to the criminal justice sy stem, whether a conviction or a diversion?

I note that, as a practical matter, my understanding of the statute a nd the majority ’ s will n ot diverg e very o ften. The occasio n s on which a d efendant c ommits a controlled substance offense and then is arreste d f o r another such offense before the judicial disposition on the first one will not be frequent. B ut they

will occur occasionally

.
At a minimum, I would not foreclose the appli c a t i o n o f § 36 0 7 (a)’s first-offender treatment to such an individual. W h ether the majority intends to d o so or not is hard to say ; its opinion c an be read as doing so, I fear. I the r e f o r e concur in the result, but would rely on my p lain-tex t r e a d i n g of the applicable statute, not o n the majority ’s more purpose-driven approach.