Eudave-Mendez

MEMORANDUM ***

Andrea Eudave-Mendez appeals from the Board of Immigration Appeals’ affir-mance of an Immigration Judge’s decision finding her both removable and ineligible for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252 , and we grant the petition.

First, we reject Eudave-Mendez’s claim that the subsequent expungement of her California conviction, for violating Cal. Health & Safety Code § 11366.5 (a), prevents the Government from removing her on the basis of it. It is true that Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000) and Garberding v. INS, 30 F.3d 1187 (9th Cir.1994), stand for the proposition that the Government cannot, for immigration purposes, distinguish between one who has received relief under a state rehabilitation statute, as opposed to the Federal First Offender Act (FFOA), 18 U.S.C. § 3607 , solely “because of the breadth of [her state’s] expungement statute, not because of what she did,” Garberding, 30 F.3d at 1191 (citation omitted). That is, “persons who received the benefit of a state expungement law [are] not subject to deportation as long as they could have received the benefit of the [FFOA] if they had been prosecuted under…