Villavicencio-Rojas v. Lynch, No. 13-70620 (9th Cir. 2016)
Annotate this CasePetitioner, a Guatemalan citizen, petitioned for review of the BIA's affirmance of the IJ's finding of removability based on his two prior drug convictions. The court concluded that the IJ erred in concluding that petitioner’s two counts of drug possession would bar him from first-offender treatment under the Federal First Offender Act (FFOA), 18 U.S.C. 3607(a). The court held that the two counts amount 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. While petitioner was charged with possession of two different drugs, that alone does not change petitioner’s status as a first-time drug offender under the FFOA. Accordingly, the court granted the petition for review and remanded for further proceedings.
Court Description: Immigration. The 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. VILLAVICENCIO-ROJAS V. LYNCH 3
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