                                                                                 FILED
                               NOT FOR PUBLICATION                                MAY 26 2015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.
                                                    AMENDED ORDER*
LORETTA E. LYNCH, 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



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

      **
       Loretta E. Lynch is substituted for her predecessor, Eric H. Holder, Jr., as
United States Attorney General. Fed. R. App. P. 43(c)(2).
law in holding that Beckles’ three-year probationary sentence disqualified his conviction

for treatment under Lujan-Armendariz v. INS, 222 F.3d 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 government’s claim that


                                             2
Beckles’ divorce from his U.S. citizen wife and potential entry into the country as a

crewmember in 1977 render him ineligible for relief.

       The parties have agreed to stay petitioner’s removal pending a decision in this

matter by the BIA.

       REMANDED.




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