                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 JERRY ADALBERTO VILLAVICENCIO-                  No. 13-70620
 ROJAS,
                       Petitioner,                Agency No.
                                                 A096-316-079
                     v.
                                                   OPINION
 LORETTA LYNCH, Attorney General
                      Respondent.


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

                 Argued and Submitted
         December 11, 2015—Pasadena, California

                     Filed February 2, 2016

 Before: Ronald M. Gould and Marsha S. Berzon, Circuit
        Judges, and Jack Zouhary,* District Judge.

                 Opinion by Judge Zouhary;
                Concurrence by Judge Berzon




  *
    The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2               VILLAVICENCIO-ROJAS V. LYNCH

                           SUMMARY**


                            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.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             VILLAVICENCIO-ROJAS V. LYNCH                  3

                        COUNSEL

Paul A. Dulin (argued), Law Office of Paul A. Dulin,
Escondido, California; Moby P. DeTorres, Torres Law Firm,
San Diego, California, for Petitioner.

Stuart F. Delery, Jesse M. Bless, and Anh-Thu P. Mai-Windle
(argued), United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondent.


                        OPINION

ZOUHARY, District Judge:

    The Department of Homeland Security (“DHS”) charged
Petitioner Jerry Villavicencio-Rojas with removability.
Villavicencio applied for a status adjustment based on his
wife’s U.S. citizenship, but an immigration judge found his
two prior drug convictions barred him from relief. The Board
of Immigration Appeals summarily affirmed. Villavicencio
now petitions for review.

                             I.

    Villavicencio, a Guatemalan citizen, entered the United
States illegally in 1992. He is married to a U.S. citizen. In
October 2008, DHS charged Villavicencio with being present
in the United States without admission or parole.
Villavicencio conceded removability but sought cancellation
of removal and a status adjustment based on his marriage.

   Two months later, Villavicencio pled guilty to
misdemeanor marijuana possession and methamphetamine
4            VILLAVICENCIO-ROJAS V. LYNCH

possession under California law. The charges stemmed from
a single event on the same day and formed two counts of one
criminal case. In January 2009, a state judge sentenced
Villavicencio to a total of 180 days in jail for both counts.
After his release, Villavicencio successfully petitioned the
court to expunge his convictions under Cal. Penal Code
§§ 1203.3–1203.4.

    Despite this later expungement, an immigration judge
found the two convictions retained their immigration
consequences and barred Villavicencio from cancellation of
removal or adjustment of status. Villavicencio argued the
two convictions were excused under the Federal First
Offender Act (“FFOA”), 18 U.S.C. § 3607(a), because they
stemmed from a single event and were packaged and
sentenced together by the state court. The IJ disagreed,
concluding that the FFOA applies only to a defendant found
guilty of a single possession count involving a single drug.
Villavicencio appealed to the BIA, which affirmed the IJ’s
decision without opinion.

                             II.

    Where, as here, the Board summarily affirms the IJ’s
decision, this Court reviews the IJ’s decision as the final
agency action. Sanchez v. Holder, 704 F.3d 1107, 1109 (9th
Cir. 2012). Whether Villavicencio’s convictions bar him
from discretionary relief is a question of law reviewed de
novo. See Coronado v. Holder, 759 F.3d 977, 982 (9th Cir.
2014).
              VILLAVICENCIO-ROJAS V. LYNCH                   5

                             III.

    An alien subject to removal may ask the Attorney General
to adjust his status “to that of an alien lawfully admitted for
permanent residence if the alien is eligible to receive an
immigrant visa and is admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(i)(2). Because an
alien convicted of an offense “relating to a controlled
substance” is generally inadmissible, the alien bears the
burden of showing any such convictions do not bar
adjustment of his status or cancellation of removal. See id.
§§ 1182(a)(2)(A)(i)(II), 1229a(c)(4)(A)(i), 1229b(b)(1)(C).

    This Court held in Lujan-Armendariz v. INS that
expungement under a state law analogous to the FFOA
eliminates any immigration consequences that would
otherwise stem from that conviction. 222 F.3d 728, 749 (9th
Cir. 2000). Though this Court later overruled Lujan-
Armendariz en banc, it did so only prospectively. See Nunez-
Reyes v. Holder, 646 F.3d 684, 687 (9th Cir. 2011) (en banc).
The parties agree that Nunez-Reyes does not bar Villavicencio
from relief, as his convictions occurred before 2011.

    The FFOA provides individuals found guilty of simple
drug possession the opportunity to enter a diversion program
and avoid entry of a judgment of conviction. Under
18 U.S.C. § 3607(a), first-offender treatment is available to
any “person found guilty of an offense described in section
404 of the Controlled Substances Act” who “has not, prior to
the commission of such offense, been convicted of violating
a Federal or State law relating to controlled substances” and
has not previously received the benefit of first-offender
treatment.
6             VILLAVICENCIO-ROJAS V. LYNCH

    The dispute here centers on whether Villavicencio was
found guilty of “an offense” given that he pled guilty to two
counts of drug possession. Villavicencio argues his two
counts should be considered one “offense” because they arose
out of a single event, followed by a single criminal case with
one case number, and the court sentenced him to 180 days of
imprisonment without allocating separate time to each count.
Moreover, the parties do not dispute that Villavicencio had
not been convicted of a controlled substance offense “prior to
the commission of” the two counts. 18 U.S.C. § 3607(a)(1).

    The FFOA’s purpose supports Villavicencio’s position.
We previously recognized that the FFOA “permits first-time
drug offenders who commit the least serious type of drug
offense to avoid the drastic consequences which typically
follow a finding of guilt in drug cases.” Lujan-Armendariz,
222 F.3d at 735. And legislative history suggests the FFOA
was intended to avoid “mak[ing] felons of our young men and
women who come into contact with drugs on a first
occasion.” Cardenas-Uriarte v. INS, 227 F.3d 1132, 1137
(9th Cir. 2000) (quoting 116 Cong. Rec. 33304 (Sept. 23,
1970) (statement of Rep. Rogers)), overruled by Nunez-
Reyes, 646 F.3d at 687.

     Moreover, we have implicitly acknowledged that multiple
counts arising out of the same event are not an absolute bar to
first-offender treatment, as the Government suggests. See,
e.g., Rice v. Holder, 597 F.3d 952, 956–57 (9th Cir. 2010)
(allowing first-offender treatment where petitioner was found
guilty of two separate drug counts and declining to address
the Government’s argument that these counts constituted two
separate offenses under the FFOA), overruled by Nunez-
Reyes, 646 F.3d at 695.
              VILLAVICENCIO-ROJAS V. LYNCH                     7

    Neither of the cases cited by the Government dictate
otherwise. See de Jesus Melendez v. Gonzales, 503 F.3d
1019 (9th Cir. 2007); Aguiluz-Arellano v. Gonzales, 446 F.3d
980 (9th Cir. 2006). They merely hold that first-offender
treatment is not available to petitioners who have already
been convicted of or received first-offender treatment for an
offense committed years before the offense in question – a
proposition that is clearly contemplated by the statute and has
no bearing on the facts here. See 18 U.S.C. § 3607(a)(1)–(2)
(restricting FFOA treatment to offenders who “ha[ve] not,
prior to the commission of such offense, been convicted of
violating a Federal or State law relating to controlled
substances” and “ha[ve] not previously been the subject of a
disposition under this subsection”).

    The IJ erred in concluding Villavicencio’s two counts of
drug possession would bar him from first-offender treatment
under the FFOA. We hold 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 he was charged with
possession of two different drugs, that alone does not change
Villavicencio’s status as a first-time drug offender under the
FFOA.

                              IV.

    Villavicencio also argues the BIA erred in summarily
affirming the IJ’s decision. Given the novel issue raised in
Villavicencio’s appeal, the Board likely should have issued
a written opinion. But, as the Government argues, any error
here does not require remand for consideration of the issue in
the first instance because it “is purely legal and . . . involves
an interpretation of the FFOA, a statute which the BIA is not
8             VILLAVICENCIO-ROJAS V. LYNCH

charged with administering.” Aguiluz-Arellano, 446 F.3d at
984.

                              V.

    The petition for review is granted, and the case is
remanded to the agency to determine whether Villavicencio
is otherwise entitled to discretionary relief.

    GRANTED AND REMANDED.



BERZON, Circuit Judge, concurring:

    I would reach the same result as the majority, but on
slightly different reasoning. In my view, the language and
structure of § 3607(a) supports the conclusion that the statute
can, in narrow circumstances, apply to more than one offense,
whether committed at the same time or different times, as
long as both conditions in the remainder of the statutory
provision are met.

    The phrase “an offense described in section 404 of the
Controlled Substances Act” is, in my view, most naturally
read as identifying the kind of offense triggering coverage of
the statute, not as limiting the coverage to a single criminal
offense. If a statute said that the maximum sentence for “an
offense” under a specified provision is X, no one would think
that the maximum would not apply to each such offense, or
that a defendant who committed two such offenses could be
subject only to a single maximum, rather than to double the
maximum.
              VILLAVICENCIO-ROJAS V. LYNCH                     9

      This interpretation is reinforced by the provisions that do
state the applicable limitations: “If a person found guilty of
an offense described in section 404 of the Controlled
Substances Act . . . (1) has not, prior to the commission of
such offense, been convicted of violating a Federal or State
law relating to controlled substances; and (2) has not
previously been the subject of a disposition under this section
. . . .” § 3607(a). Read in the context of these limitations, the
“an offense” phrase refers to each offense of the kind covered
— that is, one described in section 404 of the Controlled
Substances Act — if the offender meets the statutory criteria
— that is, it occurred before conviction of any other
controlled substances offense, and the offender was not
previously accorded first-offender treatment under § 3607(a).
Those criteria are temporal, and so can apply to more than
one offense, as long as the timing requirements are met. Had
Congress meant to impose as a third limitation that the
individual not have committed, or been charged with, another
controlled substance offense before commission of the
current offense, it could have said that. It didn’t.

    So, in my view, whether otherwise-covered offenses
occurred on one occasion or two does not matter. This
interpretation makes sense given the statutory purpose. As the
majority recounts, the statute accords its benefits to those
who are first offenders at the time of the offense of
conviction, meaning that they are not recidivists who have
proven unreformed despite their earlier encounter with the
criminal justice system. Given that focus, why should it
matter whether a defendant was discovered with both
marijuana and another drug at the same time or on successive
days, or whether the sentence imposed was undivided or
specific to each offense, as long as each offense occurred
10            VILLAVICENCIO-ROJAS V. LYNCH

before any earlier exposure to the criminal justice system,
whether a conviction or a diversion?

    I note that, as a practical matter, my understanding of the
statute and the majority’s will not diverge very often. The
occasions on which a defendant commits a controlled
substance offense and then is arrested for another such
offense before the judicial disposition on the first one will not
be frequent. But they will occur occasionally.

    At a minimum, I would not foreclose the application of
§ 3607(a)’s first-offender treatment to such an individual.
Whether the majority intends to do so or not is hard to say; its
opinion can be read as doing so, I fear. I therefore concur in
the result, but would rely on my plain-text reading of the
applicable statute, not on the majority’s more purpose-driven
approach.
