Charles Beckles v. Eric Holder, Jr.

AMENDED ORDER ** 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-Armen *677 dariz 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 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. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.