Nunez-Reyes

Per Curiam Opinion: Concurrence by Judge GRABER.

Petitioner Flavio Nunez-Reyes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA’s”) decision denying his application for cancellation of removal. We grant the petition and remand for further proceedings.

Nunez-Reyes entered the United States in 1992. In 2001, he was charged in state court with one felony count of possession of methamphetamine, in violation of California Health and Safety Code section 11377(a), and one misdemeanor count of being under the influence of methamphetamine, in violation of California Health and Safety Code section 11550(a). He pleaded guilty to both counts, but the state court eventually dismissed the charges under California Penal Code section 1210.1. Under that provision, the state court “shall ... set aside [the conviction] and ... dismiss the indictment” if the defendant successfully completes probation and other conditions are met. Id. § 1210.1(e)(1). “[E]xcept as provided [in other subsections], both the arrest and the conviction shall be deemed never to have occurred.” Id.

In early 2002, the federal government issued a notice to appear, charging…

concurring:

Our recent opinion in Rice v. Holder, 597 F.3d 952 (9th Cir.2010), answered the legal questions raised in this case, and no factual distinction exists. Therefore, I am compelled to concur in the per curiam opinion. See generally Miller v. Gammie, 335 F.3d 889 (9th Cir.2003) (en banc).

I write separately, however, to express my disagreement with our underlying rule that equal protection principles require Congress to treat aliens subject to a state expungement identically to aliens subject to a federal expungement. Though the genesis of that conclusion is understandable, its continued application is unjustified. Like others, I think that we should revisit our current rule. See Rice, 597 F.3d at 957-58 (Ikuta, J., concurring) (arguing that we should revisit this rule); Ramirez-Altamirano v. Holder, 563 F.3d 800, 816-17 (9th Cir.2009) (Ikuta, J., dissenting) (same); see also Dillingham v. INS, 267 F.3d 996, 1012-13 (9th Cir.2001) (Fernandez, J., dissenting) (suggesting that the rule is incorrect but concluding that, “for purposes of this case, that is neither here nor there”).

In the years following the 1970 enactment of the Federal First Offender Act (“FFOA”), the BIA…