                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

NARAYAN PRASAD NATH,                       
              Petitioner-Appellant,
                                                  No. 05-16557
                v.
                                                    D.C. No.
ALBERTO GONZALES, Attorney                       CIV-04-00983-
General of the United States,                       PHX-JAT
MICHAEL CHERTOFF, Secretary of
                                                    OPINION
Homeland Security,
              Respondent-Appellee.
                                           
         Appeal from the United States District Court
                  for the District of Arizona
         James A. Teilborg, District Judge, Presiding

                     Argued and Submitted
           July 24, 2006—San Francisco, California

                     Filed November 3, 2006

         Before: Procter Hug, Gilbert S. Merritt,* and
               Richard A. Paez, Circuit Judges.

                    Opinion by Judge Merritt




  *The Honorable Gilbert S. Merritt, Senior Circuit Judge, United States
Court of Appeals for the Sixth Circuit, sitting by designation.

                                18175
18178                 NATH v. GONZALES


                         COUNSEL

Christopher J. Stender, Stender & Pope, P.C., Phoenix, Ari-
zona, for the petitioner.

Paul K. Charlton, United States Attorney, John Joseph Tuchi,
Deputy Appellate Chief, and Cynthia M. Parsons, Assistant
U.S. Attorney, Phoenix, Arizona, for the respondents-
appellees.


                         OPINION

MERRITT, Senior Circuit Judge:

   Narayan Prasad Nath, a native and citizen of Fiji, petitions
for review of the Board of Immigration Appeals’ (“BIA”)
denial of his motion to reopen. The BIA upheld an Order of
Removal or deportation against Nath under 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggra-
vated felony at any time after admission is deportable.”). In
his motion to reopen, Nath asserted that his conviction under
Cal. Health & Safety Code § 11378 for possession of a con-
trolled substance for sale was vacated, and that the vacated
conviction cannot serve as the basis of removal. He also
claims that his guilty plea thereafter to a new drug offense
                          NATH v. GONZALES                         18179
does not establish a conviction of an offense giving rise to
removal. We review the BIA’s ruling on the motion to reopen
for an abuse of discretion and will reverse the denial of the
motion to reopen only if the BIA acted “ ‘arbitrarily, irratio-
nally, or contrary to law.’ ” Maravilla Maravilla v. Ashcroft,
381 F.3d 855, 857 (9th Cir. 2004) (quoting Singh v. INS, 213
F.3d 1050, 1052 (9th Cir. 2000)). For the reasons set forth
below, we grant the petition.1

                          JURISDICTION

   [1] Our jurisdiction is governed by 8 U.S.C. § 1252, as
amended by § 106(a) of the REAL ID Act of 2005, Pub. L.
No. 109-13, Div. B, § 106(a), 119 Stat. 231 (2005). See
Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.
2005). The government contends that we lack jurisdiction to
review the BIA’s denial of Nath’s motion to reopen, pursuant
to 8 U.S.C. § 1252(a)(2)(B), because it involves a decision
regarding the denial of discretionary relief. Under § 1252(a)
(2)(B)(i), we do not have jurisdiction to review “any judgment
regarding the granting of relief under [8 U.S.C.] section
1182(h), 1182(i), 1229b, 1229c, or 1255.” We have inter-
preted this provision’s language to bar jurisdiction to review
the denial of a motion to reopen “that pertains only to the
merits basis for a previously-made discretionary determina-
tion under one of the enumerated provisions.” Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006). In other words,
the BIA’s decision is a “judgment regarding the granting of
relief under” one of the enumerated provisions when the BIA
decides that it will not exercise its discretion to reopen pro-
ceedings to consider on the merits a ground for relief previ-
ously considered and denied. See id. at 597-99.
  1
    Nath originally filed a habeas petition contesting the denial of his
motion to reopen. We treat that petition as a timely filed petition for
review. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. 2005)
(holding that habeas petitions pending before the courts of appeals on the
effective date of the REAL ID Act should be construed as timely petitions
for review).
18180                  NATH v. GONZALES
   [2] Applying this interpretation of § 1252(a)(2)(B)(i), we
conclude that the BIA’s denial of Nath’s motion to reopen is
not a “judgment regarding the granting of relief under”
§§ 1182(h), 1182(i), 1229b, 1229c, or 1255. First, the pro-
ceedings below did not involve any of the enumerated provi-
sions for purposes of § 1252(a)(2)(B)(i), and the motion to
reopen sought to terminate removal proceedings, a form of
relief not provided by any of the enumerated provisions. Sec-
ond, the motion to reopen amounted to a request for new
relief, “so no prior discretionary determination existed regard-
ing the granting of the relief sought.” Fernandez, 439 F.3d at
598. Accordingly, § 1242(a)(2)(B)(i) does not deprive us of
jurisdiction over the BIA’s denial of Nath’s motion to reopen.

   [3] Nor does § 1252(a)(2)(B)(ii) deprive us of jurisdiction
over the BIA’s denial of the motion to reopen. Under
§ 1252(a)(2)(B)(ii), we do not have jurisdiction over any “de-
cision or action of the Attorney General . . . the authority for
which is specified . . . to be in the discretion of the Attorney
General.” However, we have held explicitly that this jurisdic-
tional bar does not apply to denials of motions to reopen.
Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.
2004). Moreover, we are not barred from hearing constitu-
tional claims or questions of law, even those pertaining to oth-
erwise discretionary determinations. See 8 U.S.C. § 1252(a)
(2)(D); Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.
2006).

        REASONS FOR VACATING NATH’S FIRST
          CONVICTION — BURDEN OF PROOF

   [4] The BIA erred by placing on Nath the burden of prov-
ing that his first conviction was vacated for substantive, non-
immigration related reasons. A vacated conviction can serve
as the basis of removal only if the conviction was vacated for
reasons “unrelated to the merits of the underlying criminal
proceedings,” that is, for equitable, rehabilitation, or immigra-
tion hardship reasons. In re Pickering, 23 I. & N. Dec. 621,
                       NATH v. GONZALES                   18181
624 (B.I.A. 2003), rev’d on other grounds, Pickering v. Gon-
zales, 454 F.3d 525, 2006 WL 1976043 (6th Cir. July 17,
2006). But a conviction vacated because of a “procedural or
substantive defect” is not considered a “conviction” for immi-
gration purposes and cannot serve as the basis for removabil-
ity. Id. It is unclear from the record why Nath’s original
conviction was vacated by the Superior Court of Stanislaus
County. The December 17, 2003, order vacating Nath’s origi-
nal conviction states that the conviction was vacated for
“good cause,” without further explanation. The record does
not indicate the reasons Nath gave for requesting that the state
court vacate his conviction.

   [5] In the absence of record evidence informing us of the
basis of the state court’s action, the question is which party
has the burden to prove the basis for vacating the prior con-
viction — that is, whether the reversal occurred, for example,
for immigration hardship reasons or, on the other hand, for
substantive reasons. In a recent Ninth Circuit motion-to-
reopen case, Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102,
1107 (9th Cir. 2006), the Court places the burden of proof on
the government:

    [T]he BIA acknowledges that a conviction vacated
    because of a “procedural or substantive defect” is not
    considered a “conviction” for immigration purposes
    and cannot serve as the basis for removeability.
    Pickering I, 23 I. & N. Dec. at 624.

The full citation of Pickering is In re Pickering, 23 I. & N.
Dec. 621, 624 (BIA 2003) (Pickering I), reversed by Picker-
ing v. Gonzales, 454 F.3d 525, 2006 WL 1976043 (6th Cir.
July 17, 2006) (Pickering II). Footnote 3 in the recent
Cardoso-Tlaseca case then explains that the government has
the burden of proof:

    In reviewing the BIA’s rule the Sixth Circuit
    recently clarified that for the government to carry its
18182                  NATH v. GONZALES
    burden in establishing that a conviction remains
    valid for immigration purposes, the government
    must prove “with clear, unequivocal and convincing
    evidence that the Petitioner’s conviction was
    quashed solely for rehabilitative reasons or reasons
    related to his immigration status, i.e., to avoid
    adverse immigration consequences.” Pickering II,
    2006 WL at *4 (emphasis added).

460 F.3d at n.3. The record before us does not reveal the rea-
sons for setting aside the conviction. The government has,
therefore, failed to carry its burden of proof on the question
of the reasons the state set aside the first conviction. The
remaining question then is whether the state crime to which
Nath pled guilty the second time qualifies as an aggravated
felony for immigration purposes under 8 U.S.C. § 1101(a) and
18 U.S.C. § 924(c).

DOES NATH’S SECOND CONVICTION QUALIFY AS
         A DEPORTABLE OFFENSE

   [6] After his first offense was vacated, Nath pled guilty
anew to a violation of § 11379(a) of the California Health and
Safety Code, which criminalizes a series of drug offenses
ranging from selling or giving away drugs to simply “offers
to transport drugs”:

    [E]very person who transports . . . sells . . . or gives
    away, or offers to transport . . . sell . . . or give away
    . . . any controlled substance . . . shall be punished
    by imprisonment in the state prison for a period of
    two, three, or four years. (Emphasis added.)

   In its opinion on the motion to reopen, the BIA recognized
that this statute is “overly broad [i.e., includes non-deportable
drug offenses] and includes solicitation offenses, which are
not prohibited under the Controlled Substances Act.” In order
to define the offense to which Nath pled guilty the second
                       NATH v. GONZALES                   18183
time, the BIA then used the “conviction documents” which
were from the vacated original offense. (J.A. 126) The BIA
opinion on the motion to reopen does not exclude the real
possibility that Nath only pled guilty to a “solicitation”
offense, or a mere “offer” which does not qualify as a deport-
able aggravated felony. It was a mistake for the BIA to
assume that Nath pled guilty anew to the same basic deport-
able offense that the state court had just set aside. The motion
to reopen must, therefore, be reconsidered by the BIA, and the
case must be remanded to it for analysis of the nature of the
new offense to which Nath pled guilty the second time
around.

   We note that the Supreme Court on Tuesday, October 3,
2006, heard oral argument in two cases in which the Court
granted review in order to resolve the current confusion and
conflict among the Circuits concerning what state offenses
qualify as “aggravated felonies” or “drug trafficking offenses”
requiring deportation. Lopez v. Gonzales, 417 F.3d 934 (8th
Cir. 2005), cert. granted, 126 S. Ct. 1651 (U.S. Apr.3, 2006)
(No. 05-547); Toledo-Flores v. United States, 149 Fed. Appx.
241 (5th Cir. 2005), cert. granted, 126 S. Ct. 1652 (U.S. Apr.
3, 2006) (No. 05-7664). We also note that California recently
enacted a new drug statute requiring mandatory probation for
first offenses for nonviolent drug offenders. California Penal
Code § 1210.1. Under this new probation statute, it is unclear
whether § 11379(a) can be characterized as an aggravated fel-
ony in view of the fact that a first offense under this statute
may no longer carry the possibility of a punishment of more
than one year. The BIA will need to reconsider its treatment
of Nath’s new guilty plea in light of the Supreme Court’s res-
olution of the two “aggravated felony” cases now awaiting
decision, as well as the effect of the new California manda-
tory probation statute.

   Accordingly, the petition is granted and the case remanded
to the Board of Immigration Appeals for reconsideration in
light of this opinion.
