FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CLAUDIA ERIKA PRADO, AKA No. 17-72914 Claudia Erika Prado Ramirez, Petitioner, Agency No. A036-724-746 v. WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 19, 2019 San Francisco, California Filed May 10, 2019 Before: Michael Daly Hawkins and Milan D. Smith, Jr., Circuit Judges, and Barbara M. G. Lynn, * District Judge. Opinion by Judge Hawkins * The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. 2 PRADO V. BARR 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. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PRADO V. BARR 3 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 ...
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