Joel RAMIREZ-ALTAMIRANO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 563 F.3d 800

Opinion by Judfe WARDLAW; Dissent by Judge IKUTA. ORDER AND-AMENDED OPINION ORDER The opinion filed February 4, 2009, and published at 554 F.3d 786 (9th Cir.2009) is superseded by the amended opinion below. With these amendments, the panel has voted to deny as moot the petition for panel rehearing filed on March 20, 2009. No further petitions for rehearing shall be entertained. OPINION WARDLAW, Circuit Judge: Joel Ramirez-Altamirano petitions for review of the denial of his application for cancellation of removal.

The Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) both found that Ramirezr-Altamirano’s prior state conviction for possession of drug paraphernalia rendered him ineligible for relief, even though the conviction had been set aside under state law. Because the IJ and BIA erred in treating the set-aside conviction as an absolute bar to relief, we grant the petition and remand for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND Ramirez-Altamirano was born in Mexico on September 25, 1967. He first entered the United States without inspection in April 1985, when he was seventeen.

He claims to have resided in the United States continuously since then, although he admits to returning to Mexico occasionally during that time period. In May 2004, the Department of Homeland Security served Ramirez-Altamirano with a Notice to Appear before an IJ for removal proceedings. Before the IJ, Ramirez-Altamirano conceded that he had entered the country most recently in September 2000, and that he had done so illegally. He informed the IJ, however, that he would seek cancellation of removal under 8 U.S.C. § 1229b(b), and, in the alternative, post-conclusion voluntary departure under 8 U.S.C. § 1229c.

At a hearing in August 2004, the IJ asked Ramirez-Altamirano’s attorney whether he foresaw any potential bars to relief. In response, the attorney mentioned that, in 1993, Ramirez-Altamirano had been convicted of misdemeanor possession of drug paraphernalia under California Health and Safety Code

section 11364. Ramirez-Altamirano had served five days in jail for the offense. His attorney noted, however, that RamirezAltamirano was seeking expungement of the conviction in state court. On October 19, 2004, Ramirez-Altamira-no succeeded in obtaining relief under a California rehabilitative statute. A state court found that “good cause” existed to order the conviction set aside, the guilty plea withdrawn, a plea of “not guilty” entered, and the charge dismissed.

The court further ordered that Ramirez-Altamirano be “released from all penalties and disabilities” resulting from the conviction, except that he would not be relieved of his obligation to disclose the conviction “in response to any direct question contained in any questionnaire or application for public office, for licensure by any state [or] local agency, or for contracting with the California State Lottery.” When Ramirez-Altamirano returned to Immigration Court in April 2005, the IJ considered whether the set-aside conviction affected his claim for cancellation of removal.

Under 8 U.S.C. § 1229b(b)(l)(C), cancellation of removal is not available to nonpermanent residents who have been convicted of a controlled substance offense. Ramirez-Altamirano’s attorney argued, however, that because the conviction had been expunged under state law, it no longer precluded immigration relief. In support, he cited our opinion in Lujan-Armendariz v.

INS, 222 F.3d 728 (9th Cir.2000), which held that federal drug convictions expunged under the Federal First Offender Act (“FFOA”), 18 U.S.C. § 3607, could not be used for immigration purposes, 222 F.3d at 749, and that “no rational basis exists ... for denying relief to identically situated aliens who qualify for similar treatment under state expungement laws,” id. at 743 n. 24. The IJ rejected Ramirez-Altamirano’s argument, determining that the conviction retained its immigration consequences despite having been set aside in state court.

The IJ found that the conviction could be used against Ramirez-Altamirano for immigration purposes because, by the terms of the state court’s order, it retained certain consequences under state law — specifically, the requirement to disclose the conviction upon request when applying “for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.” The IJ also explained that Ramirez-Altamirano’s “reliance on Lujaiu-Armendariz [was] misplaced,” because that case involved “the crime of simple possession of a controlled substance” for which one could receive relief under the FFOA, 18 U.S.C. § 3607.

The IJ concluded that Ramirez-Altamira-no’s conviction was “different, in [that] it is for possession of drug paraphernalia.” That Ramirez-Altamirano’s conviction retained its immigration consequences had “two profound impacts on his eligibility for cancellation of removal.” First, the conviction precluded relief under 8 U.S.C. § 1229b(b)(l)(C), which limits cancellation of removal to those nonpermanent residents who have not been convicted of a controlled substance offense.

Second, the conviction served as a “stop-time event,” terminating (in a virtual sense) RamirezAltamirano’s “physical presence” in the United States. Because the conviction occurred in 1993, eight years after his initial entry in 1985, Ramirez-Altamirano could not demonstrate the ten years of continuous physical presence required by 8 U.S.C. § 1229b(b)(l)(

A) for eligibility for cancellation of removal. The IJ therefore denied Ramirez-Altamirano’s application. On appeal, the BIA adopted and affirmed the IJ’s denial of Ramirez-Altamirano’s application for cancellation of removal.

The Board agreed that the 1993 conviction “rendered [Ramirez-Altamira-no] ineligible for cancellation of removal.” It concluded that the IJ did not err “in finding that [Ramirez-Altamirano] failed to meet his burden of proving that his expunged controlled substances conviction no longer qualified as a conviction for immigration purposes.” The BIA also agreed that the conviction, which occurred “less than 10 years after [Ramirez-Altamirano] first entered the United States,” “precluded him from accruing the period of continuous physical presence required for cancellation of removal.” II.

JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 8 U.S.C. § 1252(a)(2)(

D) to review the BIA’s determination that a controlled substance conviction precludes immigration relief as a matter of law. See de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir.2007). We review the BIA’s legal determinations de novo. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 983 (9th Cir.2006). When, as here, the BIA adopts a portion of the IJ’s decision, we review that portion of the IJ’s decision as if it were the BIA’s. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). Our review is limited to the actual grounds relied upon by the BIA. Andia v.

Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004). “If we conclude that the BIA’s decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.” Id. III. DISCUSSION The IJ held, and the BIA summarily agreed, that Ramirez-Altamirano’s prior conviction for possession of drug paraphernalia rendered him ineligible for cancellation of removal, even though the conviction had been set aside through a state rehabilitative statute.

The IJ acknowledged that, under our decision in Lujan-Armendariz, 222 F.3d 728, certain expunged state drug convictions cannot be treated as “convictions” for immigration purposes. Yet, the IJ held that Lujan-Armendariz did not apply for two reasons:

(1) Ramirez-Altamirano’s conviction was for possession of drug paraphernalia as opposed to possession of drugs; and (2) under the terms of the state court’s set-aside order, RamirezAltamirano was required to disclose the conviction on certain state-specific questionnaires and applications. We conclude that neither of these grounds supports the IJ’s conclusion that Ramirez-Altamirano’s conviction retained its immigration consequences. A. The Immigration Consequences of Expunged State Convictions A nonpermanent resident seeking cancellation of removal must meet four threshold requirements. 8 U.S.C. § 1229b(b)(l).

Specifically, the alien must: (A) [have] been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) [have] been a person of good moral character during such period; (C) [have] not been convicted of an offense[that would render the alien inadmissible under 8 U.S.C. § 1182(a)(2), or deportable under 8 U.S.C. § 1227(a)(2)-(3) ], subject to [certain exceptions for victims of domestic violence]; and (

D) establish ] that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or alien lawfully admitted for permanent residence. Id. In analyzing the first requirement, “any period of ... continuous physical presence in the United States shall be deemed to end ... when the alien has committed an offense” referred to in 8 U.S.C. § 1182(a)(2) that renders the alien inadmissible under that provision, or removable under 8 U.S.C. § 1227(a)(2) or (a)(4). Id. § 1229b(d)(l).

Under § 1182(a)(2), an alien convicted of a crime “relating to a controlled substance” is deemed inadmissible, subject to certain exceptions for youthful offenders or minor offenses. Id. § 1182(a)(2)(i), (ii). Therefore, a prior drug conviction theoretically can affect a nonpermanent resident’s eligibility for cancellation of removal in either of two ways:

(1) It can render the alien directly ineligible under § 1229b(b)(l)(C); and (2) it can terminate the alien’s “continuous physical presence,” thereby precluding eligibility under § 1229b(b) (1) (

A) and § 1229b(d)(l). But see Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1202-03 (9th Cir.2006) (holding that the stop-time rule of § 1229b(d)(

l) does not apply retroactively to crimes before 1996). Ramirez-Altamirano argues that his prior conviction for possession of drug paraphernalia does not render him ineligible for relief because the California court set aside the conviction pursuant to a state rehabilitative statute. The BIA has followed a general rule that “[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state’s rehabilitative statute.” Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir.2002). Although we have explained that the BIA’s

interpretation is only one of many plausible readings of our immigration laws, we have generally deferred to the BIA’s rule when considering the effect of expunged state convictions. See id.; Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.2001). However, although state rehabilitative statutes generally do not strip a conviction of its immigration consequences, the federal rehabilitative statute known as the Federal First Offender Act does. The FFOA provides relief for first-time defendants found guilty of drug possession. 18 U.S.C. § 3607.

If the defendant has not previously been convicted of a federal or state controlled substance offense and has not previously been a beneficiary of the FFOA, the court may place him on probation without entering a judgment of conviction. Id. § 3607(a). At the end of the probation term, if the defendant has not violated any of the conditions of probation, the court will dismiss the proceedings and discharge the defendant without entering a judgment of conviction. Id.

Moreover, if the defendant was less than twenty-one years old at the time of the offense, the court not only will dismiss the charges, but also will expunge all references to the arrest itself from most official records. Id. § 3607(c). Because nothing indicates that Congress intended to create an immigration-based exception to the FFOA, we have held that deferred convictions may not be treated as “convictions” for immigration purposes when the proceedings are later dismissed under the FFOA. See Lujan-Armendariz, 222 F.3d at 743-49; see also Garberding v. INS, 30 F.3d 1187, 1189-91 (9th Cir.1994).

Given that the FFOA provides immigration relief for first-time defendants found guilty of drug possession in federal court, the Equal Protection Clause requires a parallel exception for similarly situated defendants prosecuted in state court. Lujan-Armendariz, 222 F.3d at 749; Paredes-Urrestarazu v. INS, 36 F.3d 801, 811-12 (9th Cir.1994); Garberding, 30 F.3d at 1191. We have held that there is no rational basis for denying immigration relief based on the mere happenstance that the individual was prosecuted by the state rather than by the federal government. See Lujan-Armendariz, 222 F.3d at 743 n. 24.

We also have found no rational basis for denying immigration relief merely because a state rehabilitative statute’s procedural and structural details differed from those of the FFOA. See id. at 738 n. 18 (“[T]he critical question is not the nature of the state’s expungement statute but rather what [the petitioner] did.” (second alteration in original) (internal quotation marks omitted)); Garberding, 30 F.3d at 1190-91.

Instead, the Equal Protection Clause requires that the immigration benefits of the FFOA be extended to those individuals granted relief under state rehabilitative statutes who “would have been eligible for relief under the [FFOA] had their offenses been prosecuted as federal crimes.” Lujan-Armendariz, 222 F.3d at 749. Federal convictions deferred under the FFOA and state convictions expunged under the rationale of Lujan-Armendariz no longer qualify as convictions for immigration purposes. See id. at 742-43.

Therefore, if Ramirez-Altamirano’s set-aside conviction is considered expunged under Lujan-Armendariz, both grounds upon which the IJ denied Ramirez-Altamirano’s application are invalid. First, the conviction will not directly preclude eligibility for cancellation for removal under 8 U.S.C. § 1229b(b)(1)(C).; Second, the conviction will not terminate Ramirez-Altamirano’s “continuous physical presence” under 8 U.S.C. § 1229b(b)(1)(

A) and § 1229b(d)(1). See, e.g., In re Mandigma, No. [ AXX XXX XXX ], 2008 WL 1734632 (BIA 2008) (“[T]he respondent’s 1997 possession offense [expunged under Lujam-Armendariz] does not make him inadmissible to the United States under

section 212(a)(2) of the Act, and the stop-time rule did not end the respondent’s continuous residence .... ”). B. Possession of Drug Paraphernalia The IJ distinguished Lujam-Armendariz on the ground that RamirezAltamirano was convicted of possession of drug paraphernalia, while the FFOA applies to offenders charged only with possession of drugs. We rejected the identical argument in Cardenas-Uriarte, 227 F.3d at 1137.

Because there is no rational basis for treating individuals found guilty of possessing drug paraphernalia more harshly than those found guilty of possessing the actual drugs themselves, we again reject this reason as a basis for denying Ramirez-Altamirano relief. In Cardenas-Uriarte, the petitioner originally was charged with two counts of possession of drugs but eventually pled guilty to the lesser offense of possession of drug paraphernalia. 227 F.3d at 1137. We noted that, on its face, the FFOA appears to cover only individuals found guilty of actual drug possession. Id.

However, Congress had no need to include possession of drug paraphernalia explicitly under the FFOA because no federal statute made such possession a crime. Id. We held that possession of drug paraphernalia was implicitly included under the FFOA because to conclude otherwise “would frustrate congressional intent and lead to an absurd result.” Id. Congress intended the FFOA to provide relief for first-time offenders convicted of the least serious drug offenses. Id.

It would be an absurd result if a defendant found guilty of drug possession would qualify for FFOA relief, but one who pled guilty only to possession of drug paraphernalia would still be considered “convicted” of a controlled substance offense for immigration purposes. Id. Therefore, “[wjhere possession of drug paraphernalia is a less serious offense than simple possession of a controlled substance ..., congressional intent indicates that it should be included under the [FFOA].” Id. That the reasoning in Cardenas-Uriarte applies squarely to the facts of this case is not disputed by our dissenting colleague.

See Dissent at 4281. Ramirez-Altamirano originally was charged both with possession of drugs under California Health and Safety Code

section 11350 and possession of drug paraphernalia under

section 11364 of the same code. Ramirez-Altamirano eventually pled guilty only to the drug paraphernalia charge, a misdemeanor under state law. See Cal. Health & Safety Code § 11364. If he had instead pled guilty to the more serious drug possession charge, Ramirez-Altamirano’s conviction would have qualified him for relief under the FFOA. The structure of his plea agreement obviously was intended to minimize his culpability by allowing him to avoid facing the more serious drug possession charge, and reflects the state’s view as to the seriousness of the offense.

We can conceive of no rational basis for treating Ramirez-Altamirano more harshly than a federal defendant found guilty of possessing drugs who would be eligible for immigration relief under the FFOA. We acknowledged in Cardenas-Uriarte that a state statute criminalizing possession of drug paraphernalia could, in theory, be more serious than one criminalizing simple drug possession. 227 F.3d at 1137 n. 6. As an example, we imagined a statute that also criminalized “possession of the ingredients and machinery to create methamphetamine.” Id.

We continue to agree that, if such a statute exists, convictions thereunder might be meaningfully distinguished from the drug possession convictions eligible for relief under the FFOA exception. However, the California statute under which Ramirez-Altamirano was convicted does not raise such concerns. California Health and Safety Code

section 11364 prohibits only the possession of a “device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking” certain controlled substances. If Congress intended the FFOA to “permit[ ] first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences” that follow from a criminal conviction, Lujan-Armendariz, 222 F.3d at 735, it would be absurd to deny relief to individuals who possess the utensils incidental to drug ingestion but grant relief to those who possess the actual illicit drugs. Therefore, under Cardenas-Uriarte, persons convicted for possession of drug paraphernalia under California Health and Safety Code

section 11364 are eligible for the same immigration treatment as those convicted of drug possession under the FFOA, and the IJ erred as a matter of law by denying Ramirez-Altamirano’s application for cancellation of removal on this ground. C.

The Terms of Expungement under State Law In the alternative, the IJ found that Ramirez-Altamirano’s conviction was not expunged for immigration ' purposes because “[t]he [state court] order itself, by its plain language, shows that even for the State of California, the respondent has a conviction, at least for disclosing it for public office, for seeking a license by any State or local agency, and for even contracting with the California State lottery.” Because “the critical question is not the nature of the state’s expungement statute but rather what [the petitioner] did,” Lujan-Armendariz, 222 F.3d at 738 n. 18 (alteration in original) (internal quotation marks omitted), we conclude that this was also an improper ground upon which to deny Ramirez-Altamirano relief.

We note that the title of the expungement order does not reflect the nature of the order itself. The state court order is entitled “ORDER DISMISSING ACCUSATION AGAINST PROBATIONER [PENAL CODE § 1203.4a].” This description is oxymoronic, because California Penal Code

section 1203.4a applies only to defendants “not granted probation.” Cal.Penal Code § 1203.4a(a). The similar expungement relief accorded to probationers is set forth in California Penal Code

section 1203.4. Moreover,

section 1203.4, unlike

section 1203.4a, requires that the order state that it “does not relieve [the probationer] of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.” Id. § 1203.4(a). The state court’s order recited this text nearly verbatim, suggesting that Ramirez-Altamirano actually was granted relief under

section 1203.4 and the caption’s description of the order misstates the applicable statute. Under either statute, the set-aside conviction retains certain residual consequences under state law. Under California Vehicle Code

section 13555, relief granted under either

section 1203.4 or

section 1203.4a will not reinstate a defendant’s driving privileges if they were revoked or suspended as a result of the original conviction. For certain violent offenses, a defendant still may be prohibited from possessing or controlling a firearm after his conviction is dismissed under

section 1203.4a. Cal.Penal Code § 12021.1(a). As described above, convictions, set aside under

section 1203.4 must be disclosed on certain questionnaires. Finally,.under either statute, a prior set-aside conviction may be “pleaded and proved” if the defendant is prosecuted for another offense in the future. Cal.Penal Code §§ 1203.4, 1203.4a. Other than these narrow exceptions, however, both statutes dictate that the defendant “be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” Id. §§ 1203.4(a), 1203.4a(a).

Although we have never addressed explicitly the extent to which a conviction must be “expunged” under state law before invoking the equal protection concerns articulated in Lujaiv-Armendariz, our analysis consistently has focused on whether aliens “would have been eligible for relief under the [FFOA] had their offenses been prosecuted as federal crimes,” 222 F.3d at 749, rather than on the intricacies of the state rehabilitative statutes in question, id. at 738 n. 18. We first addressed the equal protection ramifications of the FFOA in Garberding, 30 F.3d 1187.

At that time, the BIA had long acknowledged that an alien granted relief under the FFOA did not have a “conviction” for immigration purposes, and it similarly held that defendants granted relief under a state counterpart to the FFOA should be given the same treatment. See Matter of Deris, 20 I. & N. Dec. 5, 11 (BIA 1989); Matter of Werk, 16 I. & N. Dec. 234, 236-37 (BIA 1977) (concerning the predecessor statute to the current FFOA). However, in determining whether a state defendant was covered under this rule, the BIA generally focused on the procedural details of the state rehabilitative statute in question.

In Garberding, for example, the BIA had concluded that Montana’s rehabilitative statute was not a “state counterpart” to the FFOA because it applied to a broad range of offenses more serious than simple drug possession. 30 F.3d at 1189-90. We held that even if the statute in question was broader than the FFOA, there was. no rational basis for denying Garberding relief because her state conviction for possession of marijuana would have qualified her for relief under the FFOA had it been brought federally. Id. at 1190-91.

The immigration consequences of a set-aside conviction could not turn on whether it happened to occur in a state whose rehabilitation statute was an exact counterpart to the FFOA. Id. at 1191.

In our subsequent cases, we reiterated that “the relevant question is whether the person involved could have received relief under the [FFOA] and does receive relief under a state rehabilitative statute.” Lujan-Armendariz, 222 F.3d at 738 n. 18; see also Cardenas-Uriarte, 227 F.3d at 1136 (“If [the petitioner] would have been eligible for first offender treatment under federal law, he would not stand ‘convicted’ for purposes of the immigration laws.”); Dillingham v.

INS, 267 F.3d 996, 1006 (9th Cir.2001) (“[T]he INS may not discriminate against aliens convicted of simple possession offenses whose subsequent conduct would have qualified them for FFOA rehabilitation, but for the fact that they were convicted and rehabilitated under the laws of another sovereign.”). Similarly, when we have denied FFOA treatment to an alien convicted under state law, it has consistently been because the alien would not have been eligible for relief under the FFOA. In some cases, this was because the conviction itself fell outside the scope of the FFOA.

See, e.g., de Jesus Melendez, 503 F.3d at 1025-26 (concerning a second controlled substance conviction); Aguiluz-Arellano, 446 F.3d at 983-84 (same); Ramirez-Castro, 287 F.3d at 1175 (concerning a concealed weapon conviction). In another case, it was because the alien was not yet eligible for rehabilitative relief. See Chavez-Perez v.

Ashcroft, 386 F.3d 1284, 1290-93 (9th Cir.2004); see also id. at 1292-93 (“It would defy common sense to require the INS to sit on its hands for three years, waiting to see whether Chavez-Perez will comply with the terms of his probation and perhaps qualify for future expungement.”). Moreover, we frequently have found that equal protection principles required treating state drug possession convictions as “expunged” for immigration purposes even when the convictions retained certain consequences under state law.

The Montana statute under which Garberding was granted relief specifically allows for “public access to the[records related to the dismissed charge] ... by district court order upon good cause shown.” Mont. Code Ann. § 46-18-204; Garberding, 30 F.3d at 1189. Similarly, both Lujan-Armendariz and Cardenas-Uriarte involved Arizona’s rehabilitative statute, which contains exceptions similar to those in the California statute at issue here.

The Arizona statute specifically exempts certain penalties and disabilities from release, including several imposed by the state’s department of transportation and the state’s game and fish commission. Ariz.Rev.Stat. § 13 — 907(C)(1)—(2) (2006). The statute also allows dismissed convictions to “be pleaded and proved in any subsequent prosecution ... for any offense.” Id. § 13-907(C)(1). Cardenas-Uriarte explicitly mentioned these exceptions, 227 F.3d at 1138, and Lujan-Armendariz similarly noted that the statute was “subject to some exceptions not relevant here,” 222 F.3d at 733 n. 6 (emphasis added).

The dissent argues that Garberding, Lujan-Armendariz, and Cardenas-Uriarte are “inapposite! ] because in none of them did we consider or even mention the extent to which the state expungement scheme removed the consequences of a conviction.” Dissent at 4285. The dissent’s cramped reading of these cases is unpersuasive. We have repeatedly found that an individual can be considered to have “receivefd] relief under a state rehabilitative statute” even when the statute in question does not expunge a conviction for all purposes. Lujan-Armendariz, 222 F.3d at 738 n. 18.

That we did not explicitly discuss the scope of the expungement statutes in these cases does not change the fact that we concluded Lujartr-Armendariz applied notwithstanding the statutory exceptions. The dissent mischaracterizes our opinion in stating that “the majority! ] suggest[s] that the scope of the relief provided by the state statute is irrelevant.” Dissent at 821. In finding that Ramirez-Altamira-no’s conviction was sufficiently expunged, we do not conclude that the exceptions contained in an expungement statute will never be relevant.

Rather, we limit our analysis, as we must, to the statute before us, and hold that the few residual consequences contained in this statute do not alter Ramirez-Altamirano’s eligibility for relief. We are thus bound to apply Lujavr-Armendariz’s holding that “the relevant question is whether the person involved could have received relief under the [FFOA] and does receive relief under a state rehabilitative statute.” 222 F.3d at 738 n. 18.

Accordingly, an alien cannot be deemed “convicted” for immigration purposes if he can demonstrate that (1) the conviction was his first offense; (2) he had not previously been accorded first offender treatment; (3) his conviction was for possession of drugs, or an equivalent or lesser charge such as possession of drug paraphernalia, Cardenas-Uriarte, 227 F.3d at 1137-38; and (4) he received relief under a state rehabilitative statute. Ramirez-Altamirano meets each of the first three requirements, placing him in exactly the position of federal defendants eligible for relief under the FFOA.

He also has been granted relief under a state rehabilitative statute. Ramirez-Altamira-no was “released from all penalties and disabilities resulting from the offense of which he ... [was] convicted.” CaLPenal Code §§ 1203.4(a), 1203.4a(a). Because the minimal, residual consequences of his conviction under state law are not relevant here, the IJ erred in denying RamirezAltamirano’s application on that ground. Ramirez-Altamirano is thus entitled to relief under Lujan-ArniendaHz, unless his five-day jail sentence would have precluded him from qualifying for expungement under the FFOA.

Because the BIA has not yet considered this issue, we do not decide it here. IY. CONCLUSION Ramirez-AItamirano’s set-aside conviction for possession of drug paraphernalia, which has been expunged, does not bar his relief under Lujan-ArmendaHz. The IJ and the BIA therefore erred in finding Ramirez-Altamirano statutorily ineligible for cancellation of removal on the basis of that conviction and in finding that the conviction terminated the accrual of his “continuous physical presence” in the United States. Accordingly, we grant the instant petition and remand to the BIA.

On remand, the BIA should consider whether Ramirez-Altamirano qualifies for relief under Lujan-ArmendaHz even though he received a jail sentence, as opposed to probation. The BIA also should consider whether Ramirez-Altamirano is otherwise eligible for relief, and, if so, should exercise its discretion to determine whether to grant the requested relief. PETITION GRANTED; REMANDED for further proceedings. .

Section 11364 makes it "unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking” certain controlled substances. Cal. Health & Safety Code § 11364(a). As applied to

section 11364, "drug paraphernalia” means "all equipment, products and materials of any kind which are designed for use or marketed for use, in [injecting or smoking the relevant controlled substances].” Id. § 11014.5(a). . The IJ suggested that there might be other problems with Ramirez-Altamirano's application, but he declined to reach any of those issues because he found the drug paraphernalia conviction dispositive. .

Many jurisdictions, including California, have adopted rehabilitative statutes to reduce the long-term impact of criminal convictions on individuals who subsequently demonstrate a period of good behavior following their adjudication. See Lujan-Armendariz, 222 F.3d at 734-35. These take several forms: In some types, which we will refer to as "vacatur” or "set-aside” laws, a formal judgment of conviction is entered after a finding of guilt, but then is erased after the defendant has served a period of probation or imprisonment and his conviction is ordered dismissed by the judge....

In other types, which we will refer to as “deferred adjudication” laws, no formal judgment of conviction or guilt is ever entered. Instead, after the defendant pleads or is found guilty, entry of conviction is deferred, and then during or after a period of good behavior, the charges are dismissed and the judge orders the defendant discharged. Id. at 734 n. 11. The primary effect of any of these statutes is to remove the legal consequences of a conviction.

Many of the statutes, however, still allow or require disclosure of the conviction in certain circumstances, see, e.g., Mont.Code Ann. § 46-18-204 (2007) (allowing "public access to the [records and data relating to the dismissed charge] ... by district court order upon good cause shown”), while others go further and expunge not only the conviction but also the entire arrest, see 18 U.S.C. § 3607(c) (providing a special, enhanced provision for youthful offenders). For simplicity, we generally use the term "ex-pungement” to describe the effect, even when it is to some extent a misnomer.

Lujan-Armendariz, 222 F.3d at 734 n. 11. . The FFOA therefore provides two distinct forms of relief — one available for all defendants, and the other available only for those who were less than twenty-one years old at the time of the offense. See In re Manrique, 21 I. & N. Dec. 58, 61 n. 4 (BIA 1995) ("[T]he expungement provisions of 18 U.S.C. § 3607(c) ... are separate from and in addition to the requirements for dismissal of the proceedings of a first offender under § 3607(a).”). .

Contrary to the assertion of the dissent, our approach in Lujan-Armendariz is entirely consistent with our recent en banc decision in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir.2009) (en banc) (per curiam). None of the statutory provisions before us in Lujan-Armendariz was at issue in Abebe. See id. at 1204-06 (addressing whether the petitioner was eligible for a discretionary waiver of deportation under former Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996)). Not surprisingly, therefore, we did not address Lujan-Armendariz or any of its progeny.

The dissent nevertheless attempts to manufacture a conflict where none in fact exists by repeatedly quoting out of context two general statements from Abebe. See Dissent at 817-18, 821-22. Neither statement undermines our decision in Lujan-Armendariz or here.

First, the dissent quotes Abebe for the unremarkable proposition that " ‘Congress has particularly broad and sweeping powers when it comes to immigration, and is therefore entitled to an additional measure of deference when it legislates as to admission, exclusion, removal, naturalization or other matters pertaining to aliens.’ ” Id. at 817 (quoting Abebe, 554 F.3d at 1205-06). The extensive discussion of congressional intent in Lujan-Armendariz demonstrates our awareness of these "broad and sweeping powers." See, e.g., 222 F.3d at 736-37, 742, 745.

Second, the dissent relies on Abebe's articulation of the rational basis test (which is consistent with the Supreme Court's articulation), to support its argument that "we [must] revisit Lujan-Armendariz.” Dissent at 817. However, both Lujan-Armendariz and this opinion employ the very test quoted by the dissent. That the dissent simply disagrees with the unanimous three-judge panel’s application of this test in Lujan-Armendariz is hardly a reason for revisiting a decision that has been good law in our circuit for almost a decade.

The out-of-circuit cases cited by the dissent also fail to provide a reason for revisiting Lujan-Armendariz. See id. at 4277-78. While some of our sister circuits have reached different conclusions as to what constitutes a "conviction” for purposes of immigration law, we are nonetheless compelled to follow the well-reasoned conclusion in Lujan-Armendariz, as other panels of our court have done. See, e.g., Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136-37 (9th Cir.2000). .

The dissent acknowledges that the BIA relied on only these .two grounds in rejecting Ramirez-Altamirano’s appeal, and that our review is limited to the grounds on which the BIA actually relied; yet, it nevertheless proceeds to analyze an issue that the BIA did not even mention — whether an alien who receives a term of jail, as opposed to a term of probation, could have qualified for and received expungement of the offense under the FFOA. See Dissent at 818-20.

This issue has yet to be squarely addressed in our circuit, see Lujan-Armendariz, 222 F.3d at 738 n. 18, and we are not bound to follow the decisions reached by a few of our sister circuits, see Dissent at 818-20 (citing cases). In any event, because the BIA did not rely on the fact that Ramirez-Altamirano received a sentence of five days’ imprisonment in rejecting his appeal, we do not reach the question left open in Lujan-Armendariz. See Andia, 359 F.3d at 1184 ("In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.").

Instead, we remand to the BIA to consider this issue in the first instance. . The dissent's reliance on Ramirez-Castro is both misplaced and misleading. See Dissent at 4283-85. In Ramirez-Castro, the petitioner was found deportable by reason of his state court misdemeanor conviction for carrying a concealed weapon. 287 F.3d at 1173. After his conviction was expunged pursuant to California Penal Code

section 1203.4, the petitioner filed a motion to reopen with the BIA, which was denied. Id. On appeal, the petitioner argued that the expungement of his conviction nullified it for purposes of immigration law. Id. at 1174. In rejecting this argument, we first determined the petitioner’s firearms conviction was “not within the scope of the [FFOA].” Id. at 1175. Only after reaching this conclusion did we turn to the question of whether

section 1203.4 could eliminate completely the immigration consequences of a state conviction, which we answered in the negative. Id. We reasoned that “[i]n view of the fact that California Penal Code

section 1203.4(

a) provides only a limited expungement even under state law, it is reasonable for the BIA to conclude that a conviction expunged under that provision remains a conviction for purposes of federal law.” Id. What the dissent fails to make clear is that our analysis of

section 1203.4 was only relevant to whether it provided the petitioner an independent basis for treating his conviction as expunged. In other words, had the petitioner’s conviction been within the scope of the FFOA, he would have been eligible for relief based on our holding in Lujan-Armendariz. . As we have already discussed, the statute at issue expunges a conviction for almost all purposes, save a few residual consequences under state law. See Cal.Penal Code §§ 1203.4, 1203.4a. The dissent’s reference to "the limited nature of the relief provided by

section 1203.4a” is thus misleading. Dissent at 821. . The government mistakenly argues that to be eligible for relief under the FFOA, one also must be under twenty-one years old at the time of the offense. In making this argument, the government conflates the general deferred adjudication provision in 18 U.S.C. § 3607(

a) with the special provision for expunging youthful offenders' airests in § 3607(c). See Matter of Manrique, 21 I. & N. Dec. at 61 n. 4; cf. Paredes-Urrestarazu, 36 F.3d at 812 (considering § 3607(c)'s age cutoff where the petitioner was challenging the IJ’s consideration of the circumstances of a prior arrest).