Recent Ninth Circuit Decision Reaffirms Lujan Exception to First Offense, Simple Possession Conviction

The long standing law within the jurisdiction of the Ninth
Circuit is that a first-time, simple possession of a narcotic, does
not subject the alien to removal if the alien would have been
eligible for inclusion under the Federal First Offenders Act [FFOA].
In this instance, Petitioner’s arrest and deferred entry of judgment
for “Attempted Possession of a Narcotic” squarely falls within the
Lujan-Armendariz line of cases. This holding was recently reaffirmed
in a February 4, 2009, decision Ramirez-Altamirano v. Mukasey cited
below.

“[T]he relevant question is whether the person involved could
have received relief under the [FFOA] and does receive relief under a
state rehabilitative statute." Lujan-Armendariz, 222 F.3d at 738
n.18; see also Cardenas-Uriarte, 227 F.3d at 1136 ("If [the
petitioner] would have been eligible for first offender treatment
under federal law, he would not stand 'convicted' for purposes of the
immigration laws."); Dillingham v. INS, 267 F.3d 996, 1006 (9th Cir.
2001) ("[T]he INS may not discriminate against aliens convicted of
simple possession offenses whose subsequent conduct would have
qualified them for FFOA rehabilitation, but for the fact that they
were convicted and rehabilitated under the laws of another
sovereign."). Similarly, when we have denied FFOA treatment to an
alien convicted under state law, it has consistently been because the
alien would not have been eligible for relief under the FFOA.”
Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009).