UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CESAR EDUARDO POSADA No. 21-110 MARTINEZ, Agency No. A072-291-395 Petitioner,
v. ORDER
PAMELA BONDI, Attorney General,
Respondent.
Before: GRABER, WARDLAW, and JOHNSTONE, Circuit Judges.
Respondent’s unopposed petition for panel rehearing (Dkt. No. 51) is
GRANTED to the extent it requests the panel amend the memorandum disposition.
The memorandum disposition filed June 6, 2025, is amended by the memorandum
disposition filed concurrently with this order. The last sentence of the first paragraph
in the disposition is modified to add <, and remand to the BIA for further proceedings
in light of this decision> after . The
last sentence in the disposition is modified to add <; REMANDED> after
.
No further petitions for rehearing will be accepted. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CESAR EDUARDO POSADA No. 21-110 MARTINEZ, Agency No. A072-291-395 Petitioner,
v. AMENDED MEMORANDUM*
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 21, 2025 Pasadena, California
Cesar Eduardo Posada Martinez petitions for review of a decision of the Board
of Immigration Appeals (“BIA”) that dismissed his appeal from the decision of an
immigration judge (“IJ”). The IJ denied Posada’s applications for cancellation of
removal, asylum, withholding of removal, and protection under the Convention
Against Torture. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. petition in part and grant it in part, and remand to the BIA for further proceedings in
light of this decision.
We review the agency’s factual findings for substantial evidence and
questions of law de novo. Singh v. Garland, 57 F.4th 643, 651 (9th Cir. 2023).
1. The BIA correctly held that it had jurisdiction even though the initial notice
to appear lacked a time and place to appear. United States v. Bastide-Hernandez, 39
F.4th 1187, 1193–94 (9th Cir. 2022) (en banc). To the extent that Posada now raises
a claims-processing challenge, he failed to exhaust that issue to the BIA, so we do
not consider it. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023).
2. Posada failed to exhaust a challenge to his removability. Although he listed
removability in the notice of appeal, his brief to the BIA did not mention the issue.
See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam)
(“[W]hen a petitioner does file a brief, the BIA is entitled to look to the brief for an
explication of the issues that petitioner is presenting to have reviewed. Petitioner
will therefore be deemed to have exhausted only those issues he raised and argued
in his brief before the BIA.”). We therefore do not consider removability.
3. The agency did not violate Posada’s due process rights. The IJ gave Posada
notice that corroboration may be required, and he had ample opportunities to provide
corroborating evidence. See Ren v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011)
(holding that, before finding a petitioner not credible due to a lack of corroborating
2 21-110 evidence, the agency must give the petitioner notice and an opportunity to provide
corroboration).
4. The BIA erred in holding that Posada was statutorily ineligible for
cancellation of removal. The BIA ruled that Posada could not establish the requisite
seven years of continuous residence in any status because of his commission of a
drug offense in September 2004. See 8 U.S.C. § 1229b(a)(2) (continuous residence
requirement); see also id. § 1229b(d)(1) (stop-time rule terminating the accrual of
continuous presence upon the commission of certain offenses). A California state
court initially entered a judgment of conviction against Posada but, pursuant to
California Penal Code section 1203.4(a), set aside the judgment after Posada
successfully completed probation. The BIA concluded that the court’s setting aside
the judgment of conviction did not affect the immigration consequences of the
conviction because it did not meet the requirements specified in Lujan-Armendariz
v. I.N.S., 222 F.3d 728 (9th Cir. 2000).
In Lujan-Armendariz, we held that the Equal Protection Clause prohibits
reliance by an immigration court on “an offense that could have been tried under the
[Federal First Offender] Act [(“FFOA”)], but is instead prosecuted under state law,
where the findings are expunged pursuant to a state rehabilitative statute.” Id. at 749;
see 18 U.S.C. § 3607(a). We overruled Lujan-Armendariz prospectively on July 14,
2011, so Lujan-Armendariz applies only to those convicted prior to the date of that
3 21-110 decision. Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. 2011) (en banc).
Because Posada was convicted of his first offense before the publication of Nunez-
Reyes, the rule established in Lujan-Armendariz applies here.
Under the line of cases beginning with Lujan-Armendariz, a noncitizen
“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[;] . . . and (4) he
received relief under a state rehabilitative statute.” Ramirez-Altamirano v. Holder,
563 F.3d 800, 812 (9th Cir. 2009), overruled by Nunez-Reyes, 646 F.3d 684; see also
Lujan-Armendariz, 222 F.3d at 738, 749; Lara-Garcia v. Garland, 49 F.4th 1271,
1277–80 (9th Cir. 2022). Posada meets each of those elements; none of the elements
depends on whether he completed a state’s separate program for deferred entry of
judgment. Although Posada’s probation ran after his conviction, and the FFOA
contemplates the imposition of “Pre-judgment probation . . . . without entering a
judgment of conviction,” 18 U.S.C. § 3607(a), Lujan-Armendariz itself also
involved a post-judgment expungement. 222 F.3d at 735 (explaining that the
distinction between a “deferral of [the] conviction itself” and “a judgment of guilt
[being] entered, but later erased” is “irrelevant for purpose of the [FFOA]”); see also
id.
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UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CESAR EDUARDO POSADA No. 21-110 MARTINEZ, Agency No. A072-291-395 Petitioner,
v. ORDER
PAMELA BONDI, Attorney General,
Respondent.
Before: GRABER, WARDLAW, and JOHNSTONE, Circuit Judges.
Respondent’s unopposed petition for panel rehearing (Dkt. No. 51) is
GRANTED to the extent it requests the panel amend the memorandum disposition.
The memorandum disposition filed June 6, 2025, is amended by the memorandum
disposition filed concurrently with this order. The last sentence of the first paragraph
in the disposition is modified to add <, and remand to the BIA for further proceedings
in light of this decision> after . The
last sentence in the disposition is modified to add <; REMANDED> after
.
No further petitions for rehearing will be accepted. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CESAR EDUARDO POSADA No. 21-110 MARTINEZ, Agency No. A072-291-395 Petitioner,
v. AMENDED MEMORANDUM*
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 21, 2025 Pasadena, California
Cesar Eduardo Posada Martinez petitions for review of a decision of the Board
of Immigration Appeals (“BIA”) that dismissed his appeal from the decision of an
immigration judge (“IJ”). The IJ denied Posada’s applications for cancellation of
removal, asylum, withholding of removal, and protection under the Convention
Against Torture. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. petition in part and grant it in part, and remand to the BIA for further proceedings in
light of this decision.
We review the agency’s factual findings for substantial evidence and
questions of law de novo. Singh v. Garland, 57 F.4th 643, 651 (9th Cir. 2023).
1. The BIA correctly held that it had jurisdiction even though the initial notice
to appear lacked a time and place to appear. United States v. Bastide-Hernandez, 39
F.4th 1187, 1193–94 (9th Cir. 2022) (en banc). To the extent that Posada now raises
a claims-processing challenge, he failed to exhaust that issue to the BIA, so we do
not consider it. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023).
2. Posada failed to exhaust a challenge to his removability. Although he listed
removability in the notice of appeal, his brief to the BIA did not mention the issue.
See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam)
(“[W]hen a petitioner does file a brief, the BIA is entitled to look to the brief for an
explication of the issues that petitioner is presenting to have reviewed. Petitioner
will therefore be deemed to have exhausted only those issues he raised and argued
in his brief before the BIA.”). We therefore do not consider removability.
3. The agency did not violate Posada’s due process rights. The IJ gave Posada
notice that corroboration may be required, and he had ample opportunities to provide
corroborating evidence. See Ren v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011)
(holding that, before finding a petitioner not credible due to a lack of corroborating
2 21-110 evidence, the agency must give the petitioner notice and an opportunity to provide
corroboration).
4. The BIA erred in holding that Posada was statutorily ineligible for
cancellation of removal. The BIA ruled that Posada could not establish the requisite
seven years of continuous residence in any status because of his commission of a
drug offense in September 2004. See 8 U.S.C. § 1229b(a)(2) (continuous residence
requirement); see also id. § 1229b(d)(1) (stop-time rule terminating the accrual of
continuous presence upon the commission of certain offenses). A California state
court initially entered a judgment of conviction against Posada but, pursuant to
California Penal Code section 1203.4(a), set aside the judgment after Posada
successfully completed probation. The BIA concluded that the court’s setting aside
the judgment of conviction did not affect the immigration consequences of the
conviction because it did not meet the requirements specified in Lujan-Armendariz
v. I.N.S., 222 F.3d 728 (9th Cir. 2000).
In Lujan-Armendariz, we held that the Equal Protection Clause prohibits
reliance by an immigration court on “an offense that could have been tried under the
[Federal First Offender] Act [(“FFOA”)], but is instead prosecuted under state law,
where the findings are expunged pursuant to a state rehabilitative statute.” Id. at 749;
see 18 U.S.C. § 3607(a). We overruled Lujan-Armendariz prospectively on July 14,
2011, so Lujan-Armendariz applies only to those convicted prior to the date of that
3 21-110 decision. Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. 2011) (en banc).
Because Posada was convicted of his first offense before the publication of Nunez-
Reyes, the rule established in Lujan-Armendariz applies here.
Under the line of cases beginning with Lujan-Armendariz, a noncitizen
“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[;] . . . and (4) he
received relief under a state rehabilitative statute.” Ramirez-Altamirano v. Holder,
563 F.3d 800, 812 (9th Cir. 2009), overruled by Nunez-Reyes, 646 F.3d 684; see also
Lujan-Armendariz, 222 F.3d at 738, 749; Lara-Garcia v. Garland, 49 F.4th 1271,
1277–80 (9th Cir. 2022). Posada meets each of those elements; none of the elements
depends on whether he completed a state’s separate program for deferred entry of
judgment. Although Posada’s probation ran after his conviction, and the FFOA
contemplates the imposition of “Pre-judgment probation . . . . without entering a
judgment of conviction,” 18 U.S.C. § 3607(a), Lujan-Armendariz itself also
involved a post-judgment expungement. 222 F.3d at 735 (explaining that the
distinction between a “deferral of [the] conviction itself” and “a judgment of guilt
[being] entered, but later erased” is “irrelevant for purpose of the [FFOA]”); see also
id. at 734 n.11 (noting that Lujan’s conviction was set aside after “a formal judgment
of conviction”). So we are bound by its holding that equal protection requires that
4 21-110 such petitioners enjoy the benefit of the FFOA. See Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc). Because Posada’s later-expunged state-law conviction
is eligible for treatment under the FFOA, it cannot trigger the stop-time rule barring
cancellation of removal.1
PETITION DENIED IN PART AND GRANTED IN PART;
REMANDED. The parties shall bear their own costs on appeal.
1 We have considered the 28(j) letters filed in this appeal. Dkts. 44, 45, 47.
5 21-110