                                                                               FILED
                            NOT FOR PUBLICATION                                MAR 23 2015

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHARLES BECKLES,                                 No. 13-71370

              Petitioner,                        Agency No. A020-425-414

  v.
                                                 ORDER*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted March 5, 2015
                                Portland Oregon

Before: FISHER, PAEZ, and IKUTA, Circuit Judges.

       Pursuant to the parties’ joint request at oral argument, this case is remanded

to the Board of Immigration Appeals (BIA).

       1.    As the government conceded at oral argument, the BIA erred as a

matter of law in holding that Beckles’ three-year probationary sentence

disqualified his conviction for treatment under Lujan-Armendariz v. INS, 222 F.3d


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
728, 749 (9th Cir. 2000), overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 688

(9th Cir. 2011) (en banc). Although we lack jurisdiction to review the BIA’s

exercise of discretion in declining to reopen proceedings sua sponte, we have

jurisdiction to review the underlying legal error. See Singh v. Holder, 771 F.3d

647, 650 (9th Cir. 2014).

      Lujan-Armendariz itself extended Federal First Offender Act (FFOA)

treatment to a noncitizen who successfully served five years of probation for a

simple drug offense. See 222 F.3d at 733. Similarly, in Rice v. Holder, 597 F.3d

952, 954 (9th Cir. 2010), overruled on other grounds by Nunez-Reyes, 646 F.3d at

695, we held that a controlled substance offense was eligible for FFOA treatment

even though the petitioner had been sentenced to three years’ probation, of which

he had served approximately 19 months. See id. Remand is appropriate in order

for the BIA to correctly apply Lujan-Armendariz in determining whether to sua

sponte reopen Beckles’ proceedings.

      2.    In considering whether to exercise its discretion to grant Beckles’

motion to reopen, the BIA may consider other issues raised by the parties on

appeal, including Beckles’ claim that his conviction was vacated for substantive

(not rehabilitative) reasons, see Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107

(9th Cir. 2006); Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), and the


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government’s claim that Beckles’ divorce from his U.S. citizen wife and potential

entry into the country as a crewmember in 1977 render him ineligible for relief.

      REMANDED.




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