Villavicencio-Rojas v. Lynch

Under the Federal First Offender Act, individuals found guilty of simple drug possession have the opportunity to enter a diversion program in order to avoid an entry of a judgment of conviction.

Jerry Villavicencio is a Guatemalan citizen who entered the United States illegally in 1992; however, Villavicencio is married to a United States citizen. The Department of Homeland Security (DHS) charged Villavicencio-Rojas with removability on the grounds that he was present in the United States without admission or parole. Later Villavicencio pled guilty to misdemeanor marijuana and methamphetamine possession pursuant to California law. An immigration judge found that the two misdemeanor convictions retained their respective immigration consequences. Subsequently Board of Immigration Appeals (BIA) affirmed the immigration judge’s decision. On appeal, the Ninth Circuit decided the issue of whether Villavicencio’s misdemeanor convictions constituted an “offense” and thereby precluded him from discretionary relief. Under the Federal First Offender Act (FFOA) 18 U.S.C. § 3607, individuals found guilty of simple drug possession have the opportunity to enter a diversion program in order to avoid an entry of a judgment of conviction. This opportunity is available to persons found guilty of the offense, who have not been convicted of violating Federal or State law relating to controlled substances, and who have not previously received the benefit of first-offender treatment. The panel held that Villavicencio’s two counts of misdemeanor drug possession constituted one single “offense pursuant to the FFOA because they arose from a single transaction.” Moreover the panel remanded to agency to determine whether Villavicencio was entitled to discretionary relief. GRANTED and REMANDED.