New 9th Circuit and BIA Immigration Cases

**FFOA; CH&SC 11550 being under the influence, good moral character** 

First-time offenders convicted of using or being under the influence of a controlled substance pursuant to Cal. Health & Safety Code § 11550, where such offenders are subsequently granted relief under Cal. Penal Code § 1203.4, are eligible for the same immigration treatment as those convicted of simple drug possession whose convictions are expunged under the Federal First Offender Act (FFOA).   Although the plain language of the FFOA applies only to offenses described in 21 U.S.C. § 844, which provides that it is “unlawful . . . to possess a controlled substance,” this Court has already held that the FFOA can be applicable to a drug offense less serious than simple possession, possession of drug paraphernalia.  There is no relevant distinction for present purposes between the offenses of possession of drug paraphernalia and using or being under the influence of a controlled substance, as both are generally less serious than simple possession.    The Court declines to address here the government’s contention that Jimenez would not have been eligible for relief under the FFOA because he was convicted of two drug offenses on November 29, 1999 because he BIA’s decision was not premised on that circumstance.   In addition,  if Jimenez’s simultaneous convictions qualify for relief under Lujan-Armendariz, they cannot serve as a bar to his proving good moral character. 

http://www.ca9.uscourts.gov/datastore/opinions/2010/02/26/05-74297.pdf