Unpublished Disposition, 908 F.2d 976 (9th Cir. 1984)

MEMORANDUM^* 

Petitioner Lazaro Alvarez-Fernandez ("Alvarez-Fernandez") appeals the Board of Immigration Appeals' ("BIA") order upholding his deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a, and we affirm.

FACTS

Alvarez-Fernandez is a twenty-nine-year-old native and citizen of Mexico. He was admitted to the United States as a lawful, permanent resident when he was nine months old. He has lived in this country continuously since that time, except for two brief trips to Mexico in 1972 and 1979. He is unmarried and has no children, and all of his family members reside in the United States.

On December 4, 1981, Alvarez-Fernandez pleaded nolo contendere to the charge of possession of heroin for the purpose of sale. The California superior court sentenced him to three years in prison. However, he spent only ten months in a drug rehabilitation center.

On October 19, 1984, the Immigration and Naturalization Service ("INS") issued an order to show cause, charging Alvarez-Fernandez with deportability under 8 U.S.C. § 1251(a) (11).¹  The immigration judge ("IJ") found Alvarez-Fernandez deportable, and denied his request for a waiver of deportation under 8 U.S.C. § 1182(c).²  The BIA upheld the IJ's order. Alvarez-Fernandez timely appealed.

DISCUSSION

Alvarez-Fernandez first argues that his plea of nolo contendere does not constitute a conviction under 8 U.S.C. § 1251(a) (11). He maintains that California law forbids the use of such pleas in subsequent unrelated civil proceedings. This argument is unpersuasive.

"While it may be true, as [Alvarez-Fernandez] maintains, that a guilty judgment following a nolo contendere plea cannot be used as an admission in a subsequent action, it has been held that the conviction may be noticed for purposes of deportation where the fact of the conviction is itself the only thing that is relevant." Ruis-Rubio v. INS, 380 F.2d 29, 29-30 (9th Cir.), cert. denied, 389 U.S. 944 (1967) (citations omitted).

Alvarez-Fernandez next contends he was not convicted under 8 U.S.C. § 1251(a) (11), because the state court suspended his prison sentence and sent him instead to a drug rehabilitation center. This argument is without merit.

Initially, we note that in the context of deportation for a narcotics offense, " [i]t is the fact of state conviction, not the manner of state punishment for that conviction, that is crucial." De la Cruz-Martinez v. INS, 404 F.2d 1198, 1200 (9th Cir. 1968), cert. denied, 394 U.S. 955 (1969). That Alvarez-Fernandez was ordered into a drug rehabilitation program rather than prison does not affect his conviction for purposes of federal immigration law. Cf. Dunn-Marin v. INS, 426 F.2d 894, 895 (9th Cir. 1970) (holding that petitioner's conviction for a narcotics offense was final under 8 U.S.C. § 1251(a) (11), despite "his commitment as a narcotic drug addict under California Welfare and Institutions Code Sec. 3051").

Alvarez-Fernandez finally argues the BIA abused its discretion by not granting him a waiver of deportation under 8 U.S.C. § 1182(c). We disagree.

"BIA decisions denying discretionary relief from deportation are reviewed under the abuse of discretion standard. This court should set aside a BIA decision to deny such relief only if the board fails to support its conclusions with a reasoned explanation based upon legitimate concerns." Vargas, 831 F.2d at 908 (citations omitted).

The BIA denied waiver of deportation because of Alvarez-Fernandez's prior criminal record and repeated drug use. While Alvarez-Fernandez possessed some very strong equities in his favor, the BIA took all these into consideration. We conclude the BIA did not abuse its discretion in denying waiver of deportation.

AFFIRMED.