Jose Roberto Ramirez-Castro v. Immigration and Naturalization Service

Opinion by Judge GRABER; Concurring Opinion by Judge FERGUSON.

OPINION

Petitioner Jose Roberto Ramirez-Castro seeks review of a decision of the Board of Immigration Appeals (BIA), which denied his motion to reopen and found him de-portable pursuant to 8 U.S.C. § 1227 (a)(2)(C) 1 by reason of his state-court misdemeanor conviction for carrying a concealed weapon. Petitioner raises a single issue in this appeal: whether an order of a California state court, expunging his conviction after successful completion of probation, eliminates the immigration consequences of that conviction. We conclude that the answer to that question is “no.” Accordingly, we lack jurisdiction and dismiss the petition for review.

BACKGROUND

Petitioner, a citizen of Honduras, entered the United States in 1978. In 1989, pursuant to 8 U.S.C. § 1255a(b)(l), he became a lawful permanent resident of the United States.

Nearly two years later, Petitioner was convicted in the Municipal Court of the State of California, City of Los Angeles, of carrying a concealed weapon, in violation of California Penal Code section 12025(b) (1991). That violation is a misdemeanor. Petitioner was sentenced to 65 days in…

concurring.

I agree that Ramirez-Castro’s petition should be dismissed. Nevertheless, I write separately because, while I agree with the majority’s conclusion, I disagree with its statement that the general rule is convictions expunged under state law retain their immigration consequences. There is no general rule to this effect, and the majority relies on mere dictum to support it.

The majority oversimplifies the term “expungement statute,” using it to support this generalized rule. Its use of the term fails to distinguish between a statute, which dismisses the charges but allows other legal consequences to remain, and a statute, which wholly removes the conviction of guilt and prevents any future legal consequences to apply. As the majority recognizes, neither the California statute at issue in this ease nor the Arizona statute at issue in Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir.2001), completely eliminates the consequences of a state conviction. Thus, it logically follows that the setting aside of judgment under either statute cannot obviate the immigration consequences of a state conviction. In contrast, the Federal First Offender Act discussed in Lujan-Armendariz v.…

287 F.3d 1172 Jose Roberto RAMIREZ-CASTRO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 00-71589. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 14, 2002. Filed April 24, 2002. Simon Salinas, Tustin, CA, for the Petitioner. Nancy E. Friedman and Paul D. Kovac, United States Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. No. Azw-mcd-ckc. Before FERGUSON, TASHIMA, and GRABER, Circuit Judges. Opinion by Judge GRABER; Concurring Opinion by Judge FERGUSON. OPINION GRABER, Circuit Judge. 1 Petitioner Jose Roberto Ramirez-Castro seeks review of a decision of the Board of Immigration Appeals (BIA), which denied his motion to reopen and found him deportable pursuant to 8 U.S.C. § 1227 (a)(2)(C) 1 by reason of his state-court misdemeanor conviction for carrying a concealed weapon. Petitioner raises a single issue in this appeal: whether an order of a California state court, expunging his conviction after successful completion of probation, eliminates the immigration consequences of that conviction. We conclude that the answer to that question is…