Melesio Manuel Tapia-Acuna v. Immigration and Naturalization Service

Tapia-Acuna, a lawfully admitted permanent resident alien, was convicted under Arizona law of possession of marijuana for sale. The Immigration and Naturalization Service (“INS”) instituted deportation proceedings pursuant to 8 U.S.C. § 1251 (a)(ll). The immigration judge found Tapia-Acuna deportable and denied his application for discretionary relief under 8 U.S.C. § 1182 (c). The Board of Immigration Appeals (“BIA”) affirmed, and Tapia-Acuna petitioned this court for review pursuant to 8 U.S.C. § 1105a.

While the petition for review was pending, Tapia-Acuna moved the BIA to reopen and reconsider his case in light of an Arizo na state court order expunging his conviction. The BIA denied the motion on the ground that reopening would be futile. It ruled that the expungement did not eliminate the conviction for purposes of § 1251(a)(ll), and that in the Ninth Circuit an alien deportable under § 1251(a)(ll) is not eligible for § 1182(c) relief. In an unpublished memorandum dated April 30, 1980, 620 F.2d 311 , we affirmed the BIA decision on both grounds.

On November 3, 1980, the Supreme Court - U.S. -, 101 S.Ct. 344 , 66 L.Ed.2d 209 granted certiorari and simultaneously vacated our…