FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VACILIO AGUILUZ-ARELLANO, 

Petitioner, No. 03-73856

v. Agency No.  A92-002-534 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 9, 2006*

Pasadena, California

Filed May 1, 2006

Before: David R. Thompson and Thomas G. Nelson,

Senior Circuit Judges, and Ronald M. Gould, Circuit Judge.

Opinion by Judge Gould

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

4967
COUNSEL

Dario Aguirre, San Diego, California, for petitioner Vacilio

Aguiluz-Arellano.

Lyle D. Jentzer, U.S. Department of Justice, Washington,

D.C., for respondent Alberto Gonzales. 

AGUILUZ-ARELLANO v. GONZALES 4969
OPINION

GOULD, Circuit Judge: 

Vacilio Aguiluz-Arellano petitions for review of a final

removal order, arguing that the BIA erred in finding that

Aguiluz-Arellano’s conviction for being under the influence

of a controlled substance did not fall within the scope of the

Federal First Offender Act (FFOA), 18 U.S.C. § 3607, and

therefore that the BIA erred in concluding that AguiluzArellano was removable under 8 U.S.C. § 1227(a)(2)(B)(i).

We have jurisdiction, and we deny the petition for review. 

I

Aguiluz-Arellano is a native and citizen of Mexico, and a

lawful permanent resident of the United States. In 1997 he

was convicted of a misdemeanor violation of California

Health and Safety Code section 11377(a) (prohibiting the possession of a controlled substance). Because of that conviction,

an Immigration Judge (IJ) found him removable, but granted

Aguiluz-Arellano cancellation of removal on April 17, 1998.

On October 25, 2001, Aguiluz-Arellano pled guilty to one

misdemeanor violation of California Health and Safety Code

section 11550(a) (prohibiting the use of or being under the

influence of a controlled substance). The conviction was subject to the Substance Abuse and Crime Prevention Act, CAL.

PENAL CODE § 1210, known as Proposition 36. Proposition 36

allows first- and second-time offenders to have their nonviolent, simple controlled substances charges dismissed upon

successful completion of a drug abuse treatment program. 

On November 20, 2001, Aguiluz-Arellano was once more

charged with removability under 8 U.S.C. § 1227(a)(2)(B)(i)

(“Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State,

the United States, or a foreign country relating to a controlled

4970 AGUILUZ-ARELLANO v. GONZALES
substance . . . is deportable.”). After Aguiluz-Arellano

appeared pro se at the removal hearing, the IJ found that

Aguiluz-Arellano was removable because of his second conviction for a controlled substance offense, and that AguiluzArellano was not entitled to cancellation of removal because

he had received such relief on a previous occasion. 

With the assistance of counsel, Aguiluz-Arellano appealed

to the BIA. The BIA denied relief, stating: 

Although this appears to be the respondent’s first

drug offense, his conviction was not for simple possession of a controlled substance. Rather, the respondent was convicted for being under the influence of

a controlled substance. As a result, he does not fall

within the purview of the FFOA and a finding of

deportability pursuant to section 237(a)(2)(B)(i) of

the Act is not precluded. The Immigration Judge’s

finding of deportability shall be affirmed. 

The BIA also held that because Aguiluz-Arellano’s removal

was previously cancelled, he was statutorily ineligible for

cancellation of removal a second time. 

In his petition for review, Aguiluz-Arellano asserts that the

BIA erred in concluding that Aguiluz-Arellano’s conviction

did not fall within the protections of the FFOA. 

II

In light of the statutory changes effected by the REAL ID

Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, we first consider our jurisdiction on this petition for review. Title 8

U.S.C. § 1252(a)(2)(C) states that “no court shall have jurisdiction to review any final order of removal against an alien

who is removable by reason of having committed a criminal

offense,” including offenses involving controlled substances.

However, on May 11, 2005 the President signed into law the

AGUILUZ-ARELLANO v. GONZALES 4971
REAL ID Act. Section 106(a)(1)(A)(iii) of the REAL ID Act

added a new provision, 8 U.S.C. § 1252(a)(2)(D), which

states as follows: 

Nothing in subparagraph (B) or (C), or in any other

provision of this Chapter (other than this section)

which limits or eliminates judicial review, shall be

construed as precluding review of constitutional

claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in

accordance with this section. 

Id. We have explained that: 

By this amendment, Congress restored judicial

review of constitutional claims and questions of law

presented in petitions for review of final removal

orders. It did so by providing that nothing in 8

U.S.C. § 1252(a)(2)(B), (C), or any other provision

of the INA shall preclude judicial review of such

orders, unless such review is barred by some other

provision of 8 U.S.C. § 1252. In short, Congress

repealed all jurisdictional bars to our direct review of

final removal orders other than those remaining in 8

U.S.C. § 1252 (in provisions other than (a)(2)(B) or

(C)) following the amendment of that section by the

REAL ID Act. 

Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.

2005) (footnote omitted). 

[1] Aguiluz-Arellano does not present a constitutional

claim, but argues that, as a matter of law, his conviction for

being under the influence of a controlled substance is not a

conviction for purposes of 8 U.S.C. § 1227(a)(2)(B)(i)

because it could have been subject to the FFOA if it had been

prosecuted in federal court. Because his petition for review

presents a question of law, we have jurisdiction to consider it.

4972 AGUILUZ-ARELLANO v. GONZALES
III

BIA findings of fact are reviewed for substantial evidence,

and we “must uphold the BIA’s finding unless the evidence

compels a contrary result.” Monjaraz-Munoz v. INS, 327 F.3d

892, 895 (9th Cir. 2003); see 8 U.S.C. § 1252(b)(4)(B)

(“[T]he administrative findings of facts are conclusive unless

any reasonable adjudicator would be compelled to conclude

the contrary.”). We review legal determinations of the BIA de

novo. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145

(9th Cir. 2002). 

IV

[2] Aguiluz-Arellano argues that if he had been prosecuted

in federal court, his conviction would have been subject to the

FFOA, 18 U.S.C. § 3607, and so it is not a conviction for purposes of 8 U.S.C. § 1227(a)(2)(B)(i). We have held that an

alien is not removable if his or her conviction was subject to

a state rehabilitative statute and the alien, if prosecuted in federal court, would have qualified for treatment under the

FFOA. Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir.

2000); Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.

1994). However, we have held that if an alien’s state court

conviction does not fall within the scope of the FFOA, he or

she is not entitled to favorable immigration treatment just

because his or her conviction is subject to a state rehabilitation statute. Paredes-Urrestarazu v. INS, 36 F.3d 801, 812

(9th Cir. 1994); see also Lujan-Armendariz, 222 F.3d at 738

(“[I]n Paredes-Urrestarazu, a case involving a California pretrial diversion program, we set forth the corollary of the Garberding rule, and held that persons found guilty of a drug

offense who could not have received the benefit of the federal

Act were not entitled to receive favorable immigration treatment, even if they qualified for such treatment under state

law.”). Our precedents “require, as a matter of constitutional

equal protection, that the benefits of the Act be extended to

aliens whose offenses are expunged under state rehabilitative

AGUILUZ-ARELLANO v. GONZALES 4973
laws, provided that they would have been eligible for relief

under the Act had their offenses been prosecuted as federal

crimes.” Lujan-Armendariz, 222 F.3d at 749. 

[3] In its order dismissing Aguiluz-Arellano’s appeal, the

BIA stated that “this appears to be respondent’s first drug

offense,” even though the IJ found that Aguiluz-Arellano had

previously pled guilty to violating California Health and

Safety Code section 11377(a), and Aguiluz-Arellano’s guilty

plea is in the administrative record. Whether we review the

BIA’s statement that this was Aguiluz-Arellano’s first drug

offense de novo, as the Government argues, or for substantial

evidence, as Aguiluz-Arellano argues, the record shows that

this was Aguiluz-Arellano’s second controlled substance conviction, and the contrary conclusion is not supported by substantial evidence. 

[4] Because the conviction for being under the influence

was Aguiluz-Arellano’s second conviction for a drug offense,

the FFOA could not have applied if he had been prosecuted

in federal court. See 18 U.S.C. § 3607(a) (“If a person found

guilty of an offense described in section 404 of the Controlled

Substances Act . . . has not, prior to the commission of such

offense, been convicted of violating a Federal or State law

relating to controlled substances . . . the court may . . . place

him on probation . . . without entering a judgment of conviction.” (emphasis added)). Aguiluz-Arellano’s second conviction qualified for treatment under Proposition 36. But because

this second conviction could not have qualified for treatment

under the FFOA, it must be considered a conviction for the

purposes of 8 U.S.C. § 1227(a)(2)(B)(i). See ParedesUrrestarazu, 36 F.3d at 812. Even if an alien’s conviction

may be dismissed under state law following participation in

a substance abuse treatment program, if it is a second conviction for a drug-related offense then the FFOA will provide no

relief and it cannot be set forth as a safety net to avoid

removal. 

4974 AGUILUZ-ARELLANO v. GONZALES
[5] Our analysis differs from that of the BIA, which concluded that Aguiluz-Arellano’s conviction did not fall within

the scope of the FFOA because he was convicted of being

under the influence of a controlled substance, and the FFOA

only applies to convictions for the possession of controlled substances.1

 Although we would have to remand to the BIA if the

issue was whether Aguiluz-Arellano qualified for discretionary relief, remand is not required where, as here, the issue is

purely legal and it involves an interpretation of the FFOA, a

statute which the BIA is not charged with administering. This

case requires no further agency expertise or evaluation

because our legal conclusion that the FFOA does not apply to

Aguiluz-Arellano’s second conviction compels the conclusion

that he is removable. See Moisa v. Barnhart, 367 F.3d 882,

887 (9th Cir. 2004) (declining to remand for the agency to

determine Social Security benefits eligibility when “this case

requires no further agency expertise or evaluation, and our

decision does not independently create a potentially farreaching legal precedent.”); see also Ray v. Gonzales, 439

F.3d 582, 591 (9th Cir. 2006) (“[W]e note that it may be

appropriate for us to address the merits of purely legal claims

over which the BIA claims no particular expertise and as to

which we would not ‘intrude upon [a] domain which Congress has exclusively entrusted to an administrative agency.’ ”

(quoting INS v. Ventura, 537 U.S. 12, 16 (2002)) (second

alteration in original) (internal quotation marks omitted)). 

V

Because the conviction at issue here was AguiluzArellano’s second controlled substance conviction, it could

not have qualified for treatment under the FFOA if he had

been prosecuted in federal court. Because the FFOA could not

have been applied to Aguiluz-Arellano’s second offense, his

1The FFOA only applies to offenses defined in 21 U.S.C. § 844, which

states as follows: “It shall be unlawful for any person knowingly or intentionally to possess a controlled substance . . . .” 

AGUILUZ-ARELLANO v. GONZALES 4975
second conviction is a conviction for a controlled substance

offense for which Aguiluz-Arellano is removable, regardless

of whether that conviction was later dismissed or expunged

pursuant to state law. 

PETITION FOR REVIEW DENIED.

4976 AGUILUZ-ARELLANO v. GONZALES