Christopher John Dillingham v. Immigration and Naturalization Service

267 F.3d 996 (9th Cir. 2001) CHRISTOPHER JOHN DILLINGHAM, PETITIONER v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT No. 97-71038 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 16, 2001--San Francisco, California Filed September 14, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] Counsel: Paul A. Davis, Los Angeles, California, for the petitioner. Matthew R. Hall, Department of Justice, Washington, Dc, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals I&NS No. Azx-bnr-mnl Before: Betty B. Fletcher, Ferdinand F. Fernandez, and Richard A. Paez, Circuit Judges. 1 OPINION by B. Fletcher, Dissent by Judge Fernandez 2 In this case, we consider whether an alien's right to equal protection is violated if, in the course of removal proceedings, the Immigration and Naturalization Service ("INS") refuses to recognize the effects of a British expungement 1 statute on a simple drug possession offense that would have qualified for federal first offender treatment had it occurred in the United States. The petitioner in this case, Christopher John Dillingham, is a…

Opinion by Judge B. FLETCHER; Dissent by Judge FERNANDEZ.

In this case, we consider whether an alien’s right to equal protection is violated if, in the course of removal proceedings, the Immigration and Naturalization Service (“INS”) refuses to recognize the effects of a British expungement 1 statute *1001 on a simple drug possession offense that would have qualified for federal first offender treatment had it occurred in the United States. The petitioner in this case, Christopher John Dillingham, is a 37 year-old native and citizen of Great Britain. He entered the United States in July 1992 and, after overstaying his visitor’s visa, applied for adjustment of status to legal permanent resident in May 1993. The Board of Immigration Appeals (“BIA”) ruled that Dillingham was ineligible for such adjustment because of a prior conviction in Great Britain for simple possession of marijuana and cocaine, in spite of the fact that the conviction had been expunged pursuant to a British rehabilitation statute for first-time offenders. We conclude that, in accordance with our holdings in Garberding v. INS, 30 F.3d 1187 (9th Cir.1994), Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir.1994),…

Dissenting:

Dillingham argues that as a matter of constitutional law expungements in all of the countries of the world must be treated in the same manner as expungements within the United States because anything less would violate the principle of equal protection. I disagree.

While Congress could, no doubt, so decree, it is not compelled to do so by the Constitution. As in other equal protection claims, what we must ask is whether there was a rational basis for the choice made here. See City of New Orleans v. Dukes, 427 U.S. 297, 303 , 96 S.Ct. 2513, 2516-17 , 49 L.Ed.2d 511 (1976); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir.1999); Cecelia Packing Corp. v. United States Dep’t of Agric., 10 F.3d 616 , 625 (9th Cir.1993). And in the immigration area, that is applied in an even more relaxed manner than usual. See Nyquist v. Mauclet, 432 U.S. 1 , 7 n. 8, 97 S.Ct. 2120 , 2124 n. 8, 53 L.Ed.2d 63 (1977). That is because federal authority in this area is plenary. See Mendoza v. INS, 16 F.3d 335, 338 (9th Cir.1994). “The reasons that preclude judicial review of political questions ... dictate a narrow standard of review of decisions made by the Congress or the President in the area of…