Claudia Erika Prado, AKA Claudia Erika Prado Ramirez, Petitioner,
William P. Barr, Attorney General, Respondent.
and Submitted April 19, 2019 San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A036-724-746
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
Before: Michael Daly Hawkins and Milan D. Smith, Jr., Circuit
Judges, and Barbara M. G. Lynn, [*] District Judge.
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.
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
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.
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.
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.
HAWKINS, Senior Circuit Judge:
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 ...