Charles Beckles v. Eric Holder, Jr.

AMENDED ORDER

Pursuant to the parties’ joint request at oral argument, this case is remanded to the Board of Immigration Appeals (BIA).

1. As the government conceded at oral argument, the BIA erred as a matter of law in holding that Beckles’ three-year probationary sentence disqualified his conviction for treatment under Lujan-Armen dariz v. INS, 222 F.3d 728, 749 (9th Cir.2000), overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir.2011) (en banc). Although we lack jurisdiction to review the BIA’s exercise of discretion in declining to reopen proceedings sua sponte, we have jurisdiction to review the underlying legal error. See Singh v. Holder, 771 F.3d 647, 650 (9th Cir.2014).

Lujan-Armendariz itself extended Federal First Offender Act (FFOA) treatment to a noncitizen who successfully served five years of probation for a simple drug offense. See 222 F.3d at 733 . Similarly, in Rice v. Holder, 597 F.3d 952, 954 (9th Cir.2010), overruled on. other grounds by Nunez-Reyes, 646 F.3d at 695 , we held that a controlled substance offense was eligible for FFOA treatment even though the petitioner had been sentenced to three years’ probation, of which he had served…