Rice

Nathan M. Zaslow, San Francisco, California, for the petitioner.

Peter D. Keisler, David V. Bernal, and Jamie M. Dowd, U.S. Department of Justice, Washington, DC, for the Attorney General.

Before JOHN T. NOONAN, MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge BERZON; Concurrence by Judge IKUTA.

BERZON, Circuit Judge:

We must decide whether first-time offenders convicted of using or being under the influence of a controlled substance pursuant to Cal. Health & Safety Code § 11550 , where such offenders are subsequently granted relief under Cal.Penal Code § 1203.4, are eligible for the same immigration treatment as those convicted of simple drug possession whose convictions are expunged under the Federal First Offender Act (FFOA). We hold that they are.

Juan Jose Jimenez Rice is a national and citizen of Mexico. He entered the United States as a visitor on January 19, 1987, with permission to stay until July 18, 1987. He never left. He has two U.S. citizen children, a 22-year-old daughter and an 18-year-old son.

On September 20, 1999, the former Immigration and Naturalization Service (INS) issued Jimenez a Notice to Appear, charging that he was…

concurring:

Though Congress determined that an alien who is found guilty and subject to some form of penalty ordered by the court is considered to have a “conviction” for purposes of immigration law, 8 U.S.C. § 1101 (a)(48)(A), our cases have all but written this requirement out of the INA. Beginning in Lujan-Armendariz v. INS, we reached the erroneous conclusion that the Equal Protection Clause required us to hold that an alien did not have a “convic *958 tion” for immigration purposes if: (1) the alien was “adjudged guilty” of a state crime that was expunged under state law; and (2) the alien would have qualified for expungement under the Federal First Offender Act (FFOA) if adjudged guilty of an identical federal crime. See 222 F.3d 728, 749-50 (9th Cir.2000). As every other circuit to consider this issue has noted, this equal protection analysis is meritless. See Ramirez-Altamirano v. Holder, 563 F.3d 800, 816-17 (9th Cir.2009) (Ikuta, J., dissenting) (collecting cases).

From this dubious starting point, we have step by step traveled further afield from any reasonable interpretation of the INA, holding that an alien does not have a conviction for immigration purposes even if…

Opinion by Judge BERZON; Concurrence by Judge IKUTA.

We must decide whether first-time offenders convicted of using or being under the influence of a controlled substance pursuant to Cal. Health & Safety Code § 11550 , where such offenders are subsequently granted relief under CaLPenal Code § 1203.4, are eligible for the same immigration treatment as those convicted of simple drug possession whose convictions are expunged under the Federal First Offender Act (FFOA). We hold that they are.

FACTUAL AND PROCEDURAL BACKGROUND

Juan Jose Jimenez Rice is a national and citizen of Mexico. He entered the United States as a visitor on January 19, 1987, with permission to stay until July 18, 1987. He never left. He has two U.S. citizen children, a 22-year-old daughter and an 18-year-old son.

On September 20, 1999, the former Immigration and Naturalization Service (INS) issued Jimenez a Notice to Appear, charging that he was unlawfully present in the United States and therefore removable. His first removal hearing, in October 1999, was continued so that he could apply for cancellation of removal.

In June 2001, Jimenez was charged in a single complaint with two drug offenses: one felony…