Daniel Humberto Chavez-Perez v. John Ashcroft, Attorney General

386 F.3d 1284 Daniel Humberto CHAVEZ-PEREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-72422. United States Court of Appeals, Ninth Circuit. Submitted July 15, 2004 * . Filed October 27, 2004. James Todd Bennett, El Cerrito, CA, for the petitioner. Carolyn M. Piccotti, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before REAVLEY, ** W. FLETCHER, and TALLMAN, Circuit Judges. Opinion by Judge Tallman; Dissent by Judge William A. Fletcher TALLMAN, Circuit Judge. 1 The petitioner is an alien who was convicted in Oregon of first-time simple drug possession. Though this conviction might be expunged from his record sometime in the future pursuant to Oregon's rehabilitative statute, he has not yet qualified for this relief, and so the Immigration and Naturalization Service (INS) 1 ordered him removed as an alien convicted of a felony controlled substance offense. We must decide whether this removal order violates Chavez-Perez's rights under the Equal Protection Clause. Because at the time his deportation order was upheld…

dissenting:

The majority today holds that an alien whose state drug conviction is eligible for expungement under a state rehabilitative statute, but whose conviction has not yet been expunged, is not afforded the protection extended to aliens who have been sentenced under the Federal First Offender Act. Because I believe the majority misunderstands and misapplies our precedent, I respectfully dissent.

Petitioner Daniel Chavez-Perez is a first time drug offender. On July 18, 2001, when he was nineteen years old, he was convicted of possession of methamphetamine, a Class C felony under Oregon law. He was sentenced to 20 days in jail, 36 months on probation, and monetary penalties. Because Chavez-Perez was convicted of a Class C felony, he was eligible for expungement of his conviction at any time more than three years after the judgment of conviction, provided that he had “fully complied "with and performed the sentence of the court.” Or.Rev.Stat. § 137.225(l)(a), (5)(a). When the INS commenced removal proceedings against him, Chavez-Perez was not yet eligible for expungement of his conviction because three years had not elapsed from the date of his conviction. More than three…

Opinion by Judge TALLMAN; Dissent by Judge WILLIAM A. FLETCHER

The petitioner is an alien who was convicted in Oregon of first-time simple drug possession. Though this conviction might be expunged from his record sometime in the future pursuant to Oregon’s rehabilitative statute, he has not yet qualified for this relief, and so the Immigration and Naturalization Service (INS) 1 ordered him *1286 removed as an alien convicted of a felony-controlled substance offense. We must decide whether this removal order violates Chavez-Perez’s rights under the Equal Protection Clause. Because at the time his deportation order was upheld Chavez-Perez had suffered a judgment of conviction for a drug offense, we conclude that the INS has a rational basis for treating him differently from those aliens whose convictions have previously been expunged, or whose charges were deferred and later dismissed. We uphold the decision of the Board of Immigration Appeals (BIA) and dismiss the petition for review.

I

Daniel Chavez-Perez is a native and citizen of Mexico who entered the United States in 1991 as a lawful permanent resident. On July 18, 2001, at age nineteen, he was convicted of possession of…