FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SALVADOR ROBLES LOPEZ, AKA No. 15-72747 Salvador Robles, Petitioner, Agency No. A38-817-213 v. JEFFERSON B. SESSIONS III, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 18, 2018 San Francisco, California Filed August 22, 2018 Before: N. Randy Smith and Michelle T. Friedland, Circuit Judges, and Barbara M. G. Lynn,* Chief District Judge. Opinion by Chief District Judge Lynn; Dissent by Judge Friedland * The Honorable Barbara M.G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. 2 LOPEZ V. SESSIONS SUMMARY ** Immigration The panel denied Salvador Robles Lopez’s petition for review from a decision of Board of Immigrations Appeals, holding that: 1) Lopez’s conviction for possession for sale of cocaine salt in violation of California Health & Safety Code § 11351 was an aggravated felony; 2) his conviction remained a valid ground of deportation despite its expungement; 3) he was ineligible for a waiver of deportation under former Immigration and Nationality Act § 212(c); and 4) the BIA did not err in denying relief under the Convention Against Torture. The panel held that Lopez’s conviction under California Health & Safety Code § 11351 qualified as an aggravated felony, applying the three-step process for determining whether his violation would be punishable as a felony under the Controlled Substance Act (CSA), and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). First, the panel explained that possession of a controlled substance with intent to distribute is a felony under the CSA. Second, the panel explained that, although § 11351 is categorically broader than the federal offense, this court has held that § 11351 is divisible as to the type of controlled substance. Third, applying the modified categorical approach, the panel concluded that the indictment and minute order indicated that Lopez pleaded no contest to possession for sale of cocaine salt, which is a controlled substance under the CSA. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOPEZ V. SESSIONS 3 Next, the panel held that Lopez’s conviction remained a valid ground of deportation despite its expungement under California Penal Code § 1203.4. The panel noted that a conviction generally remains valid for immigration purposes after expungement under § 1203.4, but that an exception exists for certain petitioners who satisfy the requirements of the Federal First Offender Act. However, the panel explained that the exception did not apply to Lopez because the Federal First Offender Act only applies to convictions for simple possession, and Lopez had been convicted of possession for sale of a controlled substance. The panel also held that Lopez was not eligible for a waiver of deportation under former § 212(c). The BIA held that Lopez was ineligible for § 212(c) relief because he was convicted of an aggravated felony after the ...
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