NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THAVYSACK THAMMAVONGSA,

Petitioner,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 17

- 73403 Agency No. A025

- 314

- 008

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 16, 2020 * * San Francisco, California Before: LEE and BUMATAY, Circuit Judges, and SILVER, ** * District Judge. Thavysack Thamma vongsa , a native of Laos, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings

. We review the BIA’s denial of a motion to reopen for abuse

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Roslyn O. Silver, United States District Judge for the Di strict of Arizona, sitting by designation. 

# FILED

JUL 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

of discretion and its determination of legal ques tions de novo

. Salim v. Lynch , 831 F.3d 1133, 1137 (9th Cir. 2016). We have jurisdiction under 8 U.S.C. § 1252(a) and deny the petition for review

. 1. In 200 8 , Thammavongsa pleaded guilty to possession for sale of a controlled substance under California Health & Safety Code (“CHSC”) § 11378, an aggravated felony. One year later, a Califor n ia court vacated that conviction and instead allowed Thammavongsa to enter a plea to a non

- aggravated fel ony

— transportation of a controlled substance under CHSC § 1137 9. Thereafter, Thammavongsa was ordered removed to Laos based on the § 11379 conviction. Over seven years later, in 2017, a California court vacated the § 11379 conviction under California Pe nal Code § 1203.4, a rehabilitative statute, and allowed
Thamm avongsa to plead guilty to simple possession of a controlled substance under CHSC § 11377, nunc pro tunc

. Thammavongsa moved to reopen and terminate his removal proceedings based on the vacat ur of his § 11379 conviction

. The BIA denied the motion as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (“ [T] he motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal ”)

. The BIA also held t hat the 20 17 expungement of Thammavongsa’s § 11379 conviction does not excuse the late filing of his motion to reopen or present an

“ exceptional circumstance ” to warrant reopening proceeding s sua sponte

. Lona v.3

Barr, 958 F.3d 1225, 1230 (9th Cir. 2020) ; see 8 C.F.R. § 1003.2( a )

. The BIA did not abuse its discretion in den ying the motion to reopen.
2. We have held that a conviction vacated for rehabilitative purposes ( and not on the merits ) remains a valid conviction for purposes of immigration.
See Lopez v. S

essions , 901 F.3d 1071, 1075 (9th Cir. 2018) (“For immigration purposes, a person generally continues to stand convicted of an offense notwithstanding a later expungement under California Penal Code § 1203.4.”) ( simplified ) ; s ee also Poblete Mendoza v. Holder, 606 F.3d 1137, 1141

– 42 (9th Cir. 2010) ( holding an alien ’s expunged conviction after successful completion of probation did not affect federal removal proceedings)

. Accordingly, the expungement of Thammavongsa’s § 1137 9 convict ion under California Penal Code § 1203.4 ha d no impact on the validity of his removal order and , thus, the
BIA did not err in refusing to reopen his removal proceedings.
3

. Thammavongsa also asserts that Lujan

- Armendariz v. INS, 222 F.3d 728 (9th Cir. 20 00), applies to this case and so he no longer stands convicted of an offense for immigration purposes. I n Lujan

- Armendariz , we recognized a n exception to the general rul e that a person remains convicted of an offense for immigration purposes notwithstanding a later expungement under a state ’s rehabilitative statute

. Id. at 749

– 50

. This exception a pplies only to convictions for

“ first

- time simple drug possession offense s .” Id

. at 7 49

. We later abrogated this4

exception and apply it only to p re - 2011 c onvictions

. Nunez

- Reyes v. Holder , 646 F.3d 684 , 694 (9th Cir. 2011) (en banc). While it is true that Thammavongsa pleaded guilty to simple possession in 2017, Thammavongsa ignores that his c onviction of removal remains the § 11379 offense , which is not subject to the Lujan

- Armendariz exception

. Vega

- Anguiano
v. Barr , 942 F.3d 945, 947 (9th Cir. 2019) (quoting Ramirez

- Altamirano v. Holder 563 F.3d 800, 812 ( 9th Cir. 2009) (holding the Lujan

- Armendariz exception applies only to convi ctions that are “an equivalent or lesser charge” than simple possession). A transportation violation under § 11379 is not “an equivalent or lesser charge” of simple possession under § 11377. See Ruiz

- Vidal v. Lynch , 803 F.3d 1049, 1054 (9th Cir. 2015) (d escribing § 113 77 as a “lesser included” offense of § 11379) . Indeed, § 113 77 is a misdemeanor with a maximum term of impr isonment of no more than one year, while § 11379 carries a sentence of up to four years. Compare CHSC § 1137 7, with CHSC § 1137 9 . Accordingly, the Lujan

- Armendariz exception does not apply to Thammavongsa’s offense of removal and it remains valid for immigration purposes

. 4

. Given that Thammavongsa’s 2009 transportation conviction remains a conviction for immigration purposes and that Lujan

- Armendariz does not apply, the BIA did not abuse its discretion in denying Thammavongsa’s motion to reopen.
DENIED

.