NOT FOR PUBLICATION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 Thammavongsa, 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 

District of Arizona, sitting by designation.

FILED

JUL 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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of discretion and its determination of legal questions 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 2008, 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 California court vacated that conviction 

and instead allowed Thammavongsa to enter a plea to a non-aggravated felony—

transportation of a controlled substance under CHSC § 11379. 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 Penal Code § 1203.4, a rehabilitative statute, and allowed 

Thammavongsa 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 vacatur 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 that the 2017 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 proceedings 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 denying 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. Sessions, 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); see 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 § 11379 conviction under California Penal 

Code § 1203.4 had 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. 2000), applies to this case and so he no longer stands convicted of an

offense for immigration purposes. In Lujan-Armendariz, we recognized an 

exception to the general rule 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 applies only to convictions for 

“first-time simple drug possession offenses.” Id. at 749. We later abrogated this 
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exception and apply it only to pre-2011 convictions. 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 conviction 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 convictions 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) (describing § 11377 as a “lesser included” offense 

of § 11379). Indeed, § 11377 is a misdemeanor with a maximum term of 

imprisonment of no more than one year, while § 11379 carries a sentence of up to 

four years. Compare CHSC § 11377, with CHSC § 11379. 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.