FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY ADALBERTO VILLAVICENCIOROJAS,

Petitioner,

v.

LORETTA LYNCH, Attorney General

Respondent.

No. 13-70620

Agency No.

A096-316-079

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 11, 2015—Pasadena, California

Filed February 2, 2016

Before: Ronald M. Gould and Marsha S. Berzon, Circuit

Judges, and Jack Zouhary,

*

 District Judge.

Opinion by Judge Zouhary;

Concurrence by Judge Berzon

* The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation.
2 VILLAVICENCIO-ROJAS V. LYNCH

SUMMARY**

Immigration

The panel granted Jerry Villavicencio-Rojas’ petition for

review of the Board of Immigration Appeals’ summary

affirmance of an Immigration Judge’s decision holding that

Villavicencio’s two expunged drug possession convictions

retained their immigration consequences and thus barred him

from relief from removal.

The panel held that the IJ erred in concluding that

Villavicencio’s two possession counts barred him from firstoffender treatment under the Federal First Offender Act

(“FFOA”), 18 U.S.C. § 3607(a). The panel held that the two

counts, for possession of marijuana and possession of

methamphetamine, amounted to a single “offense” under the

FFOA, because they arose out of a single event, composed a

single criminal case, and triggered a single, undivided

sentence. 

Concurring, Judge Berzon wrote that although she would

reach the same result as the majority, she would find that the

language and structure of the FFOA supports the conclusion

that it could in narrow circumstances apply to more than one

offense.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
VILLAVICENCIO-ROJAS V. LYNCH 3

COUNSEL

Paul A. Dulin (argued), Law Office of Paul A. Dulin,

Escondido, California; Moby P. DeTorres, Torres Law Firm,

San Diego, California, for Petitioner.

Stuart F. Delery, Jesse M. Bless, and Anh-Thu P. Mai-Windle

(argued), United States Department of Justice, Office of

Immigration Litigation, Washington, D.C., for Respondent.

OPINION

ZOUHARY, District Judge:

The Department of Homeland Security (“DHS”) charged

Petitioner Jerry Villavicencio-Rojas with removability. 

Villavicencio applied for a status adjustment based on his

wife’s U.S. citizenship, but an immigration judge found his

two prior drug convictions barred him from relief. The Board

of Immigration Appeals summarily affirmed. Villavicencio

now petitions for review.

I.

Villavicencio, a Guatemalan citizen, entered the United

States illegally in 1992. He is married to a U.S. citizen. In

October 2008, DHS charged Villavicencio with being present

in the United States without admission or parole. 

Villavicencio conceded removability but sought cancellation

of removal and a status adjustment based on his marriage.

Two months later, Villavicencio pled guilty to

misdemeanor marijuana possession and methamphetamine
4 VILLAVICENCIO-ROJAS V. LYNCH

possession under California law. The charges stemmed from

a single event on the same day and formed two counts of one

criminal case. In January 2009, a state judge sentenced

Villavicencio to a total of 180 days in jail for both counts. 

After his release, Villavicencio successfully petitioned the

court to expunge his convictions under Cal. Penal Code

§§ 1203.3–1203.4.

Despite this later expungement, an immigration judge

found the two convictions retained their immigration

consequences and barred Villavicencio from cancellation of

removal or adjustment of status. Villavicencio argued the

two convictions were excused under the Federal First

Offender Act (“FFOA”), 18 U.S.C. § 3607(a), because they

stemmed from a single event and were packaged and

sentenced together by the state court. The IJ disagreed,

concluding that the FFOA applies only to a defendant found

guilty of a single possession count involving a single drug. 

Villavicencio appealed to the BIA, which affirmed the IJ’s

decision without opinion.

II.

Where, as here, the Board summarily affirms the IJ’s

decision, this Court reviews the IJ’s decision as the final

agency action. Sanchez v. Holder, 704 F.3d 1107, 1109 (9th

Cir. 2012). Whether Villavicencio’s convictions bar him

from discretionary relief is a question of law reviewed de

novo. See Coronado v. Holder, 759 F.3d 977, 982 (9th Cir.

2014).
VILLAVICENCIO-ROJAS V. LYNCH 5

III.

An alien subject to removal may ask the AttorneyGeneral

to adjust his status “to that of an alien lawfully admitted for

permanent residence if the alien is eligible to receive an

immigrant visa and is admissible to the United States for

permanent residence.” 8 U.S.C. § 1255(i)(2). Because an

alien convicted of an offense “relating to a controlled

substance” is generally inadmissible, the alien bears the

burden of showing any such convictions do not bar

adjustment of his status or cancellation of removal. See id.

§§ 1182(a)(2)(A)(i)(II), 1229a(c)(4)(A)(i), 1229b(b)(1)(C).

This Court held in Lujan-Armendariz v. INS that

expungement under a state law analogous to the FFOA

eliminates any immigration consequences that would

otherwise stem from that conviction. 222 F.3d 728, 749 (9th

Cir. 2000). Though this Court later overruled LujanArmendariz en banc, it did so only prospectively. See NunezReyes v. Holder, 646 F.3d 684, 687 (9th Cir. 2011) (en banc). 

The parties agree that Nunez-Reyes does not bar Villavicencio

from relief, as his convictions occurred before 2011.

The FFOA provides individuals found guilty of simple

drug possession the opportunity to enter a diversion program

and avoid entry of a judgment of conviction. Under

18 U.S.C. § 3607(a), first-offender treatment is available to

any “person found guilty of an offense described in section

404 of the Controlled Substances Act” who “has not, prior to

the commission of such offense, been convicted of violating

a Federal or State law relating to controlled substances” and

has not previously received the benefit of first-offender

treatment.
6 VILLAVICENCIO-ROJAS V. LYNCH

The dispute here centers on whether Villavicencio was

found guilty of “an offense” given that he pled guilty to two

counts of drug possession. Villavicencio argues his two

counts should be considered one “offense” because they arose

out of a single event, followed by a single criminal case with

one case number, and the court sentenced him to 180 days of

imprisonment without allocating separate time to each count. 

Moreover, the parties do not dispute that Villavicencio had

not been convicted of a controlled substance offense “prior to

the commission of” the two counts. 18 U.S.C. § 3607(a)(1).

The FFOA’s purpose supports Villavicencio’s position. 

We previously recognized that the FFOA “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. And legislative history suggests the FFOA

was intended to avoid “mak[ing] felons of our young men and

women who come into contact with drugs on a first

occasion.” Cardenas-Uriarte v. INS, 227 F.3d 1132, 1137

(9th Cir. 2000) (quoting 116 Cong. Rec. 33304 (Sept. 23,

1970) (statement of Rep. Rogers)), overruled by NunezReyes, 646 F.3d at 687.

Moreover, we have implicitlyacknowledged that multiple

counts arising out of the same event are not an absolute bar to

first-offender treatment, as the Government suggests. See,

e.g., Rice v. Holder, 597 F.3d 952, 956–57 (9th Cir. 2010)

(allowing first-offender treatment where petitioner was found

guilty of two separate drug counts and declining to address

the Government’s argument that these counts constituted two

separate offenses under the FFOA), overruled by NunezReyes, 646 F.3d at 695.
VILLAVICENCIO-ROJAS V. LYNCH 7

Neither of the cases cited by the Government dictate

otherwise. See de Jesus Melendez v. Gonzales, 503 F.3d

1019 (9th Cir. 2007); Aguiluz-Arellano v. Gonzales, 446 F.3d

980 (9th Cir. 2006). They merely hold that first-offender

treatment is not available to petitioners who have already

been convicted of or received first-offender treatment for an

offense committed years before the offense in question – a

proposition that is clearly contemplated by the statute and has

no bearing on the facts here. See 18 U.S.C. § 3607(a)(1)–(2)

(restricting FFOA treatment to offenders who “ha[ve] not,

prior to the commission of such offense, been convicted of

violating a Federal or State law relating to controlled

substances” and “ha[ve] not previously been the subject of a

disposition under this subsection”).

The IJ erred in concluding Villavicencio’s two counts of

drug possession would bar him from first-offender treatment

under the FFOA. We hold the two counts amount to a single

“offense” under the FFOA because they arose out of a single

event, composed a single criminal case, and triggered a

single, undivided sentence. While he was charged with

possession of two different drugs, that alone does not change

Villavicencio’s status as a first-time drug offender under the

FFOA.

IV.

Villavicencio also argues the BIA erred in summarily

affirming the IJ’s decision. Given the novel issue raised in

Villavicencio’s appeal, the Board likely should have issued

a written opinion. But, as the Government argues, any error

here does not require remand for consideration of the issue in

the first instance because it “is purely legal and . . . involves

an interpretation of the FFOA, a statute which the BIA is not
8 VILLAVICENCIO-ROJAS V. LYNCH

charged with administering.” Aguiluz-Arellano, 446 F.3d at

984.

V.

The petition for review is granted, and the case is

remanded to the agency to determine whether Villavicencio

is otherwise entitled to discretionary relief.

GRANTED AND REMANDED.

BERZON, Circuit Judge, concurring:

I would reach the same result as the majority, but on

slightly different reasoning. In my view, the language and

structure of § 3607(a) supports the conclusion that the statute

can, in narrow circumstances, apply to more than one offense,

whether committed at the same time or different times, as

long as both conditions in the remainder of the statutory

provision are met.

The phrase “an offense described in section 404 of the

Controlled Substances Act” is, in my view, most naturally

read as identifying the kind of offense triggering coverage of

the statute, not as limiting the coverage to a single criminal

offense. If a statute said that the maximum sentence for “an

offense” under a specified provision is X, no one would think

that the maximum would not apply to each such offense, or

that a defendant who committed two such offenses could be

subject only to a single maximum, rather than to double the

maximum.
VILLAVICENCIO-ROJAS V. LYNCH 9

This interpretation is reinforced by the provisions that do

state the applicable limitations: “If a person found guilty of

an offense described in section 404 of the Controlled

Substances Act . . . (1) has not, prior to the commission of

such offense, been convicted of violating a Federal or State

law relating to controlled substances; and (2) has not

previously been the subject of a disposition under this section

. . . .” § 3607(a). Read in the context of these limitations, the

“an offense” phrase refers to each offense of the kind covered

— that is, one described in section 404 of the Controlled

Substances Act — if the offender meets the statutory criteria

— that is, it occurred before conviction of any other

controlled substances offense, and the offender was not

previously accorded first-offender treatment under § 3607(a).

Those criteria are temporal, and so can apply to more than

one offense, as long as the timing requirements are met. Had

Congress meant to impose as a third limitation that the

individual not have committed, or been charged with, another

controlled substance offense before commission of the

current offense, it could have said that. It didn’t.

So, in my view, whether otherwise-covered offenses

occurred on one occasion or two does not matter. This

interpretation makes sense given the statutorypurpose. As the

majority recounts, the statute accords its benefits to those

who are first offenders at the time of the offense of

conviction, meaning that they are not recidivists who have

proven unreformed despite their earlier encounter with the

criminal justice system. Given that focus, why should it

matter whether a defendant was discovered with both

marijuana and another drug at the same time or on successive

days, or whether the sentence imposed was undivided or

specific to each offense, as long as each offense occurred
10 VILLAVICENCIO-ROJAS V. LYNCH

before any earlier exposure to the criminal justice system,

whether a conviction or a diversion?

I note that, as a practical matter, my understanding of the

statute and the majority’s will not diverge very often. The

occasions on which a defendant commits a controlled

substance offense and then is arrested for another such

offense before the judicial disposition on the first one will not

be frequent. But they will occur occasionally.

At a minimum, I would not foreclose the application of

§ 3607(a)’s first-offender treatment to such an individual.

Whether the majority intends to do so or not is hard to say; its

opinion can be read as doing so, I fear. I therefore concur in

the result, but would rely on my plain-text reading of the

applicable statute, not on the majority’s more purpose-driven

approach.