Villavicencio-Rojas v. Lynch – 9th Circuit Holds 2 Expunged Drug Convictions Don’t Necessarily Bar First Offender Treatment

On February 2, 2016, the Ninth Circuit decided Villavicencio-Rojas v. Lynch, Docket 12-70620.

A Ninth Circuit panel granted Jerry Villavicencio-Rojas’ petition for review of the Board of Immigration Appeals’ summary affirmance of an Immigration Judge’s decision holding that Villavicencio’s two expunged drug possession convictions retained their immigration consequences and thus barred him from relief from removal. The panel held that the IJ erred in concluding that Villavicencio’s two possession counts barred him from first- offender treatment under the Federal First Offender Act (“FFOA”), 18 U.S.C. § 3607(a).

The panel held that the two counts, for possession of marijuana and possession of methamphetamine, amounted to a single “offense” under the FFOA, because they arose out of a single event, composed a single criminal case, and triggered a single, undivided sentence. Concurring, Judge Berzon wrote that although she would reach the same result as the majority, she would find that the language and structure of the FFOA supports the conclusion that it could in narrow circumstances apply to more than one offense.

The text of the full decision can be read here: http://cases.justia.com/federal/appellate-courts/ca9/13-70620/13-70620-2016-02-02.pdf?ts=1454436147.