                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 23 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUAN PEREZ-GOMEZ,                                No.   17-71431

              Petitioner,                        Agency No. A091-924-536

 v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

              Respondent.


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

                             Submitted May 21, 2019**
                               Pasadena, California

Before: SCHROEDER, M. SMITH, and NGUYEN, Circuit Judges.

      Juan Perez-Gomez, a native and citizen of Mexico, petitions for review of

the BIA’s denial of a motion to reopen. He contends that because the California

conviction upon which the IJ’s order of removal was based has now been



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
expunged by the state court pursuant to his plea agreement, the BIA should have

granted the reopening.

      The state court expungement came as the result of Perez-Gomez’s successful

completion of probation and withdrawal of his previous guilty plea to violating

California Health and Safety Code section 11378. It was on the basis of that

conviction that Petitioner was charged with removability as an aggravated felon

under 8 U.S.C. § 1227(a)(2)(A)(iii). Although the state conviction has been

expunged for purposes of state law, the question here is whether such expungement

pursuant to the terms of the state court plea affects the validity of the conviction for

purposes of federal immigration law.

      Under our Circuit’s settled law, it does not. The expungement did not call

into question the validity of the proceedings leading to entry of the guilty plea.

Only if the conviction had been vacated for a procedural or substantive defect in

those proceedings could the expungement affect the validity of the removal.

Poblete Mendoza v. Holder, 606 F.3d 1137, 1141-1142 (9th Cir. 2010), see also

Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th Cir. 2006). As we recently

stated, “where the alien was punished or his liberty was restrained by the terms of

his probation,” a state conviction expunged under state law is “still a conviction for




                                           2
purposes of eligibility for cancellation of removal.” Reyes v. Lynch, 834 F.3d

1104, 1108 (9th Cir. 2016). There was no abuse of discretion.

      The dissent relies upon California law, not federal immigration law, to

suggest the expungement was not for rehabilitative purposes, because the

underlying California statute Petitioner invoked has a broader sweep. Yet as the

dissent acknowledges, the plea agreement called for the expungement only after

Petitioner had successfully served a substantial term of probation. The purpose

was rehabilitative and the felony conviction remained for federal immigration

purposes. See Prado v. Barr, No. 17-72914, 2019 WL 2113448 (9th Cir. May 10,

2019) (felony reduced to misdemeanor after successful probation term was still a

felony conviction for immigration purposes); see also Poblete, 606 F.3d at 1141

(expunged conviction after Petitioner completed probation did not affect federal

removal proceedings).

      Perez-Gomez’s Petition for Review is DENIED.




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                                                                            FILED
Perez-Gomez v. Barr, 17-71431
                                                                            MAY 23 2019

NGUYEN, Circuit Judge, dissenting:                                    MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


      “[A] criminal defendant has a due process right to enforce the terms of his

plea agreement.” Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc)

(citing Santobello v. New York, 404 U.S. 257, 261–62 (1971)). As long as Perez-

Gomez upheld his end of the bargain, which he did, the state was obligated to

vacate his plea and dismiss the charge to which he pled guilty. Since allowing

Perez-Gomez’s conviction to stand would have violated his due process rights, his

conviction was overturned “because of a ‘procedural . . . defect.’” Nath v.

Gonzales, 467 F.3d 1185, 1189 (9th Cir. 2006).

      Plea agreements “must be construed in accordance with state law.” Buckley,

441 F.3d at 690. Here, pursuant to the plea agreement, Perez-Gomez moved the

court to withdraw his plea and dismiss the charge under California Penal Code

section 1385. The court did so—nunc pro tunc to the date that the plea was

entered—and “found [him] not guilty.”

      Section 1385 provides for dismissal “in furtherance of justice.” It serves a

substantially different purpose than statutes that modify convictions for

rehabilitative purposes. Courts consider, among other things, “the constitutional

rights of the defendant.” People v. Hatch, 991 P.2d 165, 171 (Cal. 2000) (quoting

People v. Orin, 533 P.2d 193, 199 (Cal. 1975)). And “the effect of a dismissal


                                          1
under section 1385 is to wipe the slate clean as if the defendant never suffered the

prior conviction in the initial instance.” People v. Barro, 112 Cal. Rptr. 2d 797,

801 (Ct. App. 2001). California thus does not permit trial courts “to make liberal

use of section 1385 to avoid criminal prosecutions where probable cause exists to

believe conviction is warranted.” Orin, 533 P.2d at 200. Nor can section 1385 be

used to reward a defendant for successful completion of probation, at which time

the court’s power to grant such relief has expired. People v. Chavez, 415 P.3d 707,

717 (Cal. 2018).

      A rehabilitative expungement, in contrast, “does not purport to render the

conviction a legal nullity.” People v. Vasquez, 25 P.3d 1090, 1093 (Cal. 2001)

(quoting People v. Frawley, 98 Cal. Rptr. 2d 555, 559 (Ct. App. 2000)) (construing

Cal. Penal Code § 1203.4). The majority’s reliance on Reyes v. Lynch, which

involved a statute that was “intended to be entirely rehabilitative,” 834 F.3d 1104,

1108 (9th Cir. 2016), is thus misplaced. The issue in Reyes—but not here—was

whether the probation even counted as a “conviction,” i.e., if “the judge ha[d]

ordered some form of punishment, penalty, or restraint on the alien’s liberty to be

imposed.” Id. at 1108 (quoting 8 U.S.C. § 1101(a)(48)(A)(ii)).

      Here, as in Nath, “the conviction was vacated for ‘good cause,’ without

further explanation.” 467 F.3d at 1189. Because the government failed to meet its

burden of showing that Perez-Gomez’s conviction was vacated “for equitable,


                                          2
rehabilitation, or immigration hardship reasons” rather than for a procedural or

substantive defect, the Board of Immigration Appeals erred in considering it for

immigration purposes. Id.; see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1030–

32 (10th Cir. 2005). I respectfully dissent.




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