Prado v. Barr

          Argued and Submitted April 19, 2019 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A036-724-746

          Hadiva Deshmukh (argued) and Sean P. McGinley (argued), Certified Law Students; Kari Elisabeth Hong (argued), Supervising Attorney; Boston College Law School, Ninth Circuit Appellate Project, Newton, Massachusetts; for Petitioner.

          Genevieve M. Kelly (argued), Attorney; Cindy F. Ferrier, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Michael Daly Hawkins and Milan D. Smith, Jr., Circuit Judges, and Barbara M. G. Lynn, ^[*] District Judge.

         SUMMARY ^[**]

         Immigration

         Denying Claudia Prado's petition for review of a decision of the Board of Immigration Appeals, the panel concluded that Prado's felony conviction for Possession of Marijuana for Sale under California Health & Safety Code § 11359 made her removable even though the conviction had been recalled and reclassified as a misdemeanor under California's Proposition 64.

         Based on her conviction, the Department of Homeland Security charged Prado as removable for: (1) committing an offense relating to a controlled substance; and (2) committing an aggravated felony, illicit trafficking in a controlled substance.

         While her removal charges were pending, Prado applied to the Superior Court of California to have her conviction reduced to a misdemeanor under California's Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act (the "Act"), which permits individuals who have completed their sentences under various statutes to have their felony convictions "redesignated" as misdemeanors. The state court granted Prado's application, but the immigration judge and BIA found Prado removable as charged and denied relief from removal.

         Before this court, Prado claimed that her conviction was no longer a predicate to removal because it had been recalled and reclassified under the Act. The panel concluded that her argument failed because federal immigration law does not recognize a state's policy decision to expunge (or recall or reclassify) a valid state conviction. In this respect, the panel explained that a conviction vacated for reasons unrelated to the merits of the criminal proceedings - such as equitable, rehabilitation, or immigration hardship reasons - may be used as a conviction in removal proceedings, whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not. The panel concluded that Prado's conviction retained its immigration consequences because it was reclassified for policy reasons of rehabilitation, rejecting her attempt to characterize California's decision that its marijuana policy was flawed as proof of a "substantive" flaw in her conviction.

         The panel also concluded that Prado's argument - that the reclassification of her conviction eliminated its immigration consequences - failed because the Act merely reclassified her sentence as a matter of California law, rather than fully expunging it. The panel explained that common sense and this court's precedent dictate that partial expungement or reclassification cannot eliminate the immigration consequences of a conviction.

          OPINION

          HAWKINS, Senior Circuit Judge:

         Claudia Prado ("Prado") seeks review of the Board of Immigration Appeals' conclusion that her California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i). Prado claims this conviction is no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64. Because valid state convictions retain ...