[00:00:00] Speaker 03: And are you both, are you still Southwestern Law students? [00:00:06] Speaker 00: Yes. [00:00:07] Speaker 03: Okay, great, thank you. [00:00:18] Speaker 02: Good morning, your honors, and may it please the court. [00:00:20] Speaker 02: Piper Hinson, certified law student under the supervision of Andrew Knapp and the Southwestern Law School Appellate Litigation Clinic, on behalf of petitioner Mr. Cesar Posada-Martinez, for a pro bono appointment. [00:00:33] Speaker 02: Today, your honors, I will focus on the issues of removability and corroboration. [00:00:37] Speaker 02: I will monitor my time and save approximately seven minutes of my time for rebuttal for my colleague, Arya Bezai. [00:00:43] Speaker 02: Your Honours, we ask this Court to remand with instructions to the BIA to terminate the proceedings or the alternative to remand on the other briefed issues. [00:00:53] Speaker 02: To address the three issues requested by the Court, first, Mr. Posada contests whether the government has met its burden in proving that he was convicted of possession of a federally controlled substance. [00:01:04] Speaker 02: But assuming that they did, he's entitled FFOA treatment. [00:01:07] Speaker 02: Second, the IJ found Mr. Posada removable only by a concession not in the record, and in lieu of that, a docket sheet is an insufficient shepherd document in a California felony case. [00:01:19] Speaker 02: Third, the BIA assumed credibility and failed to provide Mr. Posada with notice and opportunity to either produce the evidence or explain why it's unavailable before ruling that he had failed his obligation to provide corroborative evidence. [00:01:34] Speaker 01: Ms. [00:01:34] Speaker 01: Henson, could you walk us through [00:01:37] Speaker 01: your view of the FFOA claim and how it applies here. [00:01:44] Speaker 01: So just taking a look at the statute, it provides for prejudgment probation. [00:01:51] Speaker 01: We've got a couple of overlapping convictions and probation or probation-like periods. [00:02:04] Speaker 01: When was Mr. Posada found guilty for purposes of falling under the FFLA-like relief we've provided under the Equal Protection Clause during this period? [00:02:16] Speaker 02: Sure. [00:02:16] Speaker 02: He pled guilty on 11-09-04, and that's the date that is relevant. [00:02:22] Speaker 02: But as you mentioned, there are maybe a couple convictions, but the only relevant conviction is the 11-3-5-0. [00:02:30] Speaker 02: Anything else is alleged and the government did not rely on them. [00:02:33] Speaker 01: Okay, so the scope so What was the relevant? [00:02:39] Speaker 01: Probation term then that mr. Posada received for that finding of guilty in 2004 so he he ended up receiving an expungement So he was convicted he was first given diversion under CPC 1000 expungement or dismissal and [00:02:55] Speaker 02: expungement under 1203.4. [00:02:57] Speaker 02: That was much later on. [00:03:00] Speaker 01: Yes. [00:03:00] Speaker 01: Okay. [00:03:01] Speaker 02: And that's what we would look to for FFOA. [00:03:04] Speaker 02: Lujan has extended the FFOA from state rehabilitative to basically assuming the question of how would it work out in federal court. [00:03:12] Speaker 02: So if Mr. Posada had been tried in federal court, he would have satisfied everything required under 18 U.S. [00:03:18] Speaker 02: Section 3607A. [00:03:20] Speaker 02: and all the FFOA requirements is as listed. [00:03:24] Speaker 02: It is the prior commission of an offense that he's been convicted of a controlled substance offense and has not previously been accorded FFOA. [00:03:31] Speaker 01: Why is it not the probation that he received upon the finding of guilty in November 2004? [00:03:38] Speaker 02: So the probation that he, it's based on his relief received and as this court wrote in Lara Garcia, there are things to consider and the relief is what we focus on, not the attempted relief. [00:03:50] Speaker 02: And Mr. Posada received relief under 1203.4 under the mandatory expungement provision. [00:03:56] Speaker 02: So he was given one day of probation and he satisfied that. [00:04:00] Speaker 02: So he does satisfy for FFOA treatment. [00:04:03] Speaker 02: The government has tried to convolute the CPC 1000, but as Laura Garcia clarified, it's not about the string of things that happened before. [00:04:11] Speaker 02: It's about received relief. [00:04:13] Speaker 02: And Mr. Posada received relief. [00:04:15] Speaker 01: Received relief after the prosecution, after the judgment? [00:04:19] Speaker 01: After his convictions, so how does that square with the fact that the FFOA? [00:04:24] Speaker 01: governs prejudgment probation so his probation for one day in 2006 was post-judgment because he was convicted of the possession offense in November of 2005 so that's how it would play out in federal court the statute on FFOA says that at the expiration of the term of probation if the person has not violated a condition of his probation and [00:04:46] Speaker 02: the court shall, without entering judgment, dismiss the proceedings against him. [00:04:49] Speaker 02: So that is exactly how it would play out in federal court. [00:04:51] Speaker 02: 1203.4 is sort of issued. [00:04:53] Speaker 01: But the only probation he successfully fulfilled was in 2006, which was after his judgment of conviction. [00:05:00] Speaker 01: And the only probation that he received, or probation-like process that he received before judgment, is the deferral of entry of judgment that he violated. [00:05:14] Speaker 02: The court would not look at the pre-conviction diversion. [00:05:19] Speaker 02: That's not part of the analysis. [00:05:21] Speaker 01: Then how can we look at a post-judgment probation under a statute that says it's about pre-judgment probation? [00:05:27] Speaker 02: Well, the statute actually specifically says special probation and expungement procedures for drug possession. [00:05:34] Speaker 02: That's the title of the statute. [00:05:36] Speaker 02: So it does include expungements after a conviction. [00:05:39] Speaker 02: And in fact, for FFOA treatment, you would have to have a conviction in order to receive this FFOA treatment. [00:05:46] Speaker 01: Well, it says that the court may, so the federal analogy is the court may, with consent of such person, place him on probation for a term of not more than one year without entering a judgment of conviction. [00:05:59] Speaker 01: Here, the court had entered a judgment of conviction and gave him a post-judgment probation. [00:06:06] Speaker 01: What am I missing in terms of how this doesn't line up? [00:06:10] Speaker 02: Well, the diversion program, there is its pre-conviction and FFOA treatment occurs after a conviction. [00:06:18] Speaker 02: The statute says the court shall, without entering judgment of conviction, dismiss the proceedings, but if you don't have probation from a conviction, you can't receive FFOA treatment. [00:06:29] Speaker 02: So anything occurring before would not fall into FFOA. [00:06:35] Speaker 02: But Mr. Posada did fall into FFOA because his 1203.4 expungement was mandatory under the state court. [00:06:43] Speaker 02: And he satisfied his probation, so he mapped on perfectly to the FFOA treatment. [00:06:49] Speaker 05: I have a question also about the November 2004 plea. [00:06:56] Speaker 05: There appears to be a docket entry at AR-909. [00:07:06] Speaker 05: There's a docket entry stating that the court found there was a factual basis for the plea, and it looks like it might have been stricken. [00:07:16] Speaker 05: Accurate and if so does it have any significance? [00:07:21] Speaker 02: Well, there are two things to respond to that. [00:07:25] Speaker 02: If there was any sort of plea that had been expunged later on, Reyes Torres talks about concession, but that would negate it. [00:07:33] Speaker 02: So anything that had been on the record for an alleged crime that has later been expunged is sort of null. [00:07:41] Speaker 02: It's no longer valid. [00:07:43] Speaker 02: But at the record, the docket sheet is not going to be sufficient. [00:07:46] Speaker 02: So whatever is said in there would be insufficient to prove that he [00:07:49] Speaker 05: So I guess what I'm trying to get at is that part of the expungement process that that is stricken, the earlier factual basis for the plea, is that why it would be stricken? [00:08:04] Speaker 02: Well, yes, Your Honor, because an expungement is an erasure of a conviction. [00:08:08] Speaker 02: So if there has been a conviction and it's expunged, it's only in paperwork as far as this happened in the existence of time, but it has no legal bearing because it has been an erasure of the conviction. [00:08:21] Speaker 02: Your Honors, I see my time is nearing. [00:08:23] Speaker 02: I'd like to reserve the rest of my time for my colleague. [00:08:27] Speaker 03: Thank you, counsel. [00:08:28] Speaker 02: Thank you. [00:08:41] Speaker 04: Good morning, Your Honors. [00:08:42] Speaker 04: May it please the Court, Andrea Jebus on behalf of the Attorney General. [00:08:46] Speaker 04: This Court should deny the instant petition for review because Petitioner is removable and did not meet his burden of showing eligibility for cancellation of removability. [00:08:57] Speaker 04: Now, discussing removability, it is the government's burden. [00:09:00] Speaker 04: But the government would like to preserve its argument that Petitioner did not meaningfully challenge this before the board. [00:09:08] Speaker 04: And if this court would find that it did challenge, Petitioner has did. [00:09:13] Speaker 04: Unfortunately, the documents say that there was a concessions not in the record. [00:09:17] Speaker 04: However, there are seven instances where the immigration judge discussed the concession and nothing was mentioned. [00:09:26] Speaker 04: and by petitioners council through [00:09:29] Speaker 04: Three different attorneys, not one of them challenged or mentioned. [00:09:32] Speaker 04: It troubles me that there's no record. [00:09:34] Speaker 03: Why is that? [00:09:35] Speaker 03: I know, Your Honor. [00:09:36] Speaker 04: I wish that one single document was in there. [00:09:38] Speaker 04: It would make it such an easier case. [00:09:40] Speaker 03: Well, it is very troubling. [00:09:42] Speaker 03: Any explanation for that? [00:09:44] Speaker 04: I wish I knew, Your Honor. [00:09:45] Speaker 04: I don't know if it was just something. [00:09:47] Speaker 04: It was a written pleading that just didn't make it into the record. [00:09:50] Speaker 04: But unfortunately, no, it is not in the record. [00:09:52] Speaker 04: However, like I said, there are seven instances where the immigration judge discusses concessions [00:09:58] Speaker 05: But we wouldn't reach that if we agree that there was no argument to the BIA. [00:10:03] Speaker 04: Correct. [00:10:04] Speaker 04: We don't even have to get there, Your Honor. [00:10:05] Speaker 04: It's as simple as that. [00:10:06] Speaker 04: If this court were to find that there was no argument, Petitioner failed to exhaust his challenge, and therefore, removability would not be on. [00:10:17] Speaker 01: Could you just go to the FFOA discussion we were having? [00:10:20] Speaker 01: Sure. [00:10:21] Speaker 01: What is your view of exactly how the statute maps on to the proceedings? [00:10:27] Speaker 04: Okay, so FFOA is a benefit that was given for first-time drug possession offenses that for petitioners who did not previously receive FFOA and the court could place them on probation for a year without entering judgment and then dismiss the charges if the petitioner had not violated probation. [00:10:46] Speaker 04: Petitioner violated probation here petitioner wants to use the word His expungement and say that that wasn't probation however this court has already discussed in the contrarious case that Deferred entry of judgment is the similar as a probation violation and not that it matters your honor But the probation violation and again FFOA is just for simple drug possession the probation violation here [00:11:14] Speaker 04: Excuse me, let me just find my document. [00:11:17] Speaker 01: Well, it was sale of methamphetamine. [00:11:20] Speaker 01: Yes, exactly. [00:11:21] Speaker 04: It was for sale. [00:11:21] Speaker 01: Oh, excuse me, you're on. [00:11:24] Speaker 01: Why would that be disqualifying if the [00:11:31] Speaker 04: Conviction of that came after the commission of the underlying offense because it's a probation violation He was on probation during that time he didn't his probation was for 18 months I think less than a year before after his original arrest He's he's violated his probation. [00:11:49] Speaker 01: Why don't we count do you understand? [00:11:54] Speaker 01: your friends on the other side to be Saying that the operative probation is the one-day probation that occurred in 2006 that he successfully completed [00:12:01] Speaker 04: No, it's the 18 months that he was put on probation for his deferred entry of judgment. [00:12:06] Speaker 04: That was the probation period. [00:12:07] Speaker 05: Counsel, you rely on Contreras, which I think is a memorandum disposition. [00:12:12] Speaker 04: It is, Your Honor, unfortunately. [00:12:13] Speaker 05: Is there any binding precedent on this topic from this circuit? [00:12:19] Speaker 04: Estrada. [00:12:20] Speaker 04: Estrada is the case that best discusses exactly what happened here. [00:12:27] Speaker 04: It does not, like I said, it's the probation of the 18 months. [00:12:31] Speaker 04: So the fact that he, within a year later, is now arrested. [00:12:36] Speaker 03: You're equating the program that he was under, which I understood was a diversionary program under California state law, with probation. [00:12:49] Speaker 03: And I don't think that we've ever equated the two of them in a published decision. [00:12:54] Speaker 04: As I mentioned, Castreras-Negrete is the one that mentions it. [00:12:59] Speaker 03: It is unpublished, but it does say... It's not presidential. [00:13:03] Speaker 03: That's my point. [00:13:04] Speaker 03: I think that was Judge Graber's point, too. [00:13:07] Speaker 03: Our precedent does not hold that those two things are coextensive. [00:13:13] Speaker 04: No, there's nothing precedent. [00:13:15] Speaker 04: However, Your Honor, looking at this in the big picture, if you were to allow someone like this, [00:13:22] Speaker 04: You're essentially allowing them to have bites at the apple. [00:13:24] Speaker 04: So he got one bite at the apple. [00:13:26] Speaker 04: Let me just clarify something. [00:13:29] Speaker 05: I want to be sure I'm looking at the right sections of the penal code. [00:13:33] Speaker 05: Penal code section 1000 is true pretrial diversion. [00:13:37] Speaker 05: Yes. [00:13:38] Speaker 05: Did that happen here? [00:13:39] Speaker 04: That was his original. [00:13:42] Speaker 04: That was what he was originally given was CPC 1000, the pretrial diversion. [00:13:46] Speaker 05: So in my mind, that is [00:13:50] Speaker 05: not relevant because it never results in a prosecution if it's successful. [00:13:56] Speaker 05: So then is there there's another thing that happened, I guess, which is under penal code section 1000.9. [00:14:09] Speaker 05: Is that right? [00:14:12] Speaker 04: I think 1304, Your Honor, is the second one. [00:14:17] Speaker 04: I'm sorry which what are you looking at for one thousand point nine? [00:14:23] Speaker 05: Deferred entry of judgment is that it or not yet? [00:14:27] Speaker 04: No, I believe the deferred entry of judgment was under one thousand and then the 1234 was what the second? [00:14:36] Speaker 04: It was grounded probation under 1203.4 [00:14:43] Speaker 04: which he complied with and the sentence was dismissed, just like in Estrada. [00:14:47] Speaker 05: Okay, so the only things that happened, I just don't understand California law, sorry about that. [00:14:54] Speaker 05: So he had pretrial diversion and that [00:15:01] Speaker 05: Was unsuccessful correct so then he gets a judgment of conviction with a probationary term which he completes successfully resulting in expungement correct under 1203.4 okay, so Which was just like the petitioner strata, which is why I said of strata would be our closest presidential decision and [00:15:26] Speaker 01: So under that reading... It's not presidential. [00:15:29] Speaker 05: You should keep saying that. [00:15:34] Speaker 01: Where in Estrada should we be looking for the controlling? [00:15:36] Speaker 04: Estrada is 560F3 at, I'd say, 1041 is the page of importance. [00:15:46] Speaker 01: To pick up on Judge Graver's questions, when for purposes of the FOA was the petitioner found guilty of the offense? [00:16:00] Speaker 01: In November of 2004 or in 2006? [00:16:09] Speaker 01: Found guilty would be when he violated his probation that would be the date of importance here November 2005 was when he was convicted Yes, the cocaine charge yes So if they were found guilty [00:16:26] Speaker 04: I'm sorry, could you repeat that? [00:16:27] Speaker 04: I think I may have misled you. [00:16:29] Speaker 01: We have a lot of cases here. [00:16:30] Speaker 01: I'm just trying to read what Congress wrote. [00:16:34] Speaker 01: This is about prejudgment probation. [00:16:36] Speaker 01: What I'm looking for is, before we can even map it on, it has to be prejudgment. [00:16:42] Speaker 01: It says whatever the probation, whatever we're going to call probation is prejudgment. [00:16:47] Speaker 01: If a person found guilty of an offense, when was Posada found guilty? [00:16:54] Speaker 04: Under for purposes of the FFOA okay, that would be November 2005 when he violated his probation And I think a big point to make is this is all it's not really what happened at the state level FFOA is taking what happened to petitioner and putting it in the federal Okay, okay, but just stay with me because because we're trying to figure out what first we have to figure out what congress meant And then we can figure out what California did okay? [00:17:19] Speaker 01: Then the, so in November, that was after the violation of the probation. [00:17:27] Speaker 01: So if the petitioner was found guilty in November upon the violation of whatever we call the thing that he violated that happened before is, it doesn't look like the language of the final paragraph of 3607A [00:17:48] Speaker 01: It says if a person is found guilty, the court may, and I'd say, assume like after the person has been found guilty, if that's November, then the court may place him on probation for a term. [00:17:58] Speaker 01: So that would seem to suggest that whatever happened before was not the FFOA probation. [00:18:03] Speaker 01: The only way the FFOA probation could key off of the diversion program would be if the November 2004 was the finding of guilty, no? [00:18:12] Speaker 04: What am I missing about the statute? [00:18:14] Speaker 04: Well, I think what you're missing is if you follow, it says if the person violates a condition of his probation. [00:18:20] Speaker 01: Right, but that's after the court has placed him on probation, and that's after he has been found guilty. [00:18:27] Speaker 01: And so if he's been found guilty in November of 2005, we can't count the probation that was imposed, or whatever it was, in 2004. [00:18:35] Speaker 04: But do you see the second part where it says but the court may not dismiss or expunge the conviction which is what? [00:18:42] Speaker 05: Well, but again, that's after the person's been found guilty and that's what I wanted to ask you about Estrada because in Estrada as I recall it the person was actually Convicted and it was after that that there were probation violations, so that's not our case and [00:19:02] Speaker 05: I'm looking at page 1041. [00:19:07] Speaker 05: Estrada was convicted in 2001, was placed on probation for three years, and the state court twice found that he violated the terms of his probation. [00:19:17] Speaker 05: So that all happened after conviction, and I think that is what Judge Johnstone's questions are geared toward also. [00:19:26] Speaker 05: It appears that the FFOA [00:19:30] Speaker 05: relates only to true probation after a person is found guilty. [00:19:37] Speaker 05: That's just what the words say there. [00:19:39] Speaker 01: But, I mean, not so fast yet because then the beginning of the section starts with prejudgment probation. [00:19:45] Speaker 01: Is the conviction not a judgment? [00:19:47] Speaker 01: And so it would have to be the pre... So that might be the probation after he's been found guilty, but when's the [00:19:55] Speaker 01: Judgment then so we've keyed in now on the 2005 November 2005 found guilty But is that not also the judgment? [00:20:06] Speaker 04: Yes, because then it back dates to The date that because he was placed on probation Yeah, you have to jump back because he violated prove his probation that original date would then be the date of conviction so but then there would be but then the 2006 probation would not be prejudgment and [00:20:26] Speaker 04: The one day probation after... It almost kicks, I think that probation violation would then render the original date and set that as the date of conviction. [00:20:39] Speaker 01: Is that what you're... Yeah, I guess I'm troubled because I'm trying to identify what is the probation-like process for our purposes that occurs after a person has been found guilty. [00:20:53] Speaker 04: Thereafter has been placed on probation, but is also prejudgment in this case, and I'm not seeing where that is I think what my understanding is when he violated his probation that original date because he was played on deferred placed on deferred entry of judgment for 15 18 months He violated that so then the original date [00:21:15] Speaker 04: of November 2004 would be the date of conviction. [00:21:19] Speaker 03: What bothers me about how you're I think you're misinterpreting the California statute because this is a diversionary program so he pleads guilty but there's no entry of judgment if he successfully completes the diversionary program then [00:21:37] Speaker 03: then there's no entry of judgment, so he's not a judged guilty. [00:21:41] Speaker 03: Yes, but the minute that he violates, excuse me Your Honor, I didn't mean to interrupt. [00:21:45] Speaker 03: Okay, okay, but right, but so he violated it, then he's a judged guilty, then he's on, he's [00:21:56] Speaker 03: on probation. [00:21:57] Speaker 03: Is that how you're going to have to explain it? [00:21:59] Speaker 03: Our argument would be that when 1,000 works, because my understanding was that it's a true, I mean, I've never been a state court judge, but I've been a federal court judge, and I understand, I'm a district court judge, and I understand diversionary programs, and you don't enter the judgment. [00:22:17] Speaker 04: But when you violate the probation, the government's understanding is then you would enter the original judgment. [00:22:26] Speaker 04: Because you didn't, you're giving it to him. [00:22:28] Speaker 05: There's no original judgment. [00:22:30] Speaker 05: The person is not prosecuted, essentially, if they complete the diversion. [00:22:35] Speaker 04: But he didn't complete the diversion. [00:22:37] Speaker 05: No, but then after that, he's found guilty. [00:22:41] Speaker 05: Not before that. [00:22:43] Speaker 05: Where do you find in any of the California statutes or case law something that says that you backdate the finding of guilt? [00:23:01] Speaker 01: I'm just looking at the docket here on ER 911 and what happened in November 2005, deferred entry of judgment terminated for count one and criminal proceedings reinstated. [00:23:12] Speaker 01: Count one, disposition convicted. [00:23:14] Speaker 01: Is that a judgment? [00:23:20] Speaker 01: Is it? [00:23:21] Speaker 04: I guess, yes. [00:23:21] Speaker 01: A finding? [00:23:22] Speaker 01: Is it looking back to something else? [00:23:24] Speaker 04: Yeah, so he got convicted the date of, yes, he got convicted the date of when he violated his probation. [00:23:30] Speaker 01: And in June 2006, when we led to the probation, the one-day probation, that is an imposition of sentence suspended, defendant placed on formal probation. [00:23:41] Speaker 01: But the imposition of sentence would have happened, would that be after, is that consistent with the November 2005 being a judgment? [00:23:52] Speaker 04: It appears so. [00:23:59] Speaker 05: I don't, I mean, does the title of the, is the title of the section something that we're supposed to pay attention to? [00:24:09] Speaker 05: the title of what section? [00:24:10] Speaker 05: Well, we've been talking about this question under FFOA of prejudgment, where it says prejudgment probation. [00:24:23] Speaker 05: Ordinarily, the main title of the section doesn't have legal significance in what I'm asking, truly asking. [00:24:31] Speaker 05: I don't know the answer to this. [00:24:33] Speaker 05: In section A, is pre-judgment probation part of the substance of the section that we have to try to sort out? [00:24:48] Speaker 04: You could look at it that way, but then also when you read the actual statute, it talks about violating a condition of the probation. [00:24:54] Speaker 04: So it could be viewed. [00:24:56] Speaker 05: But it's after the person's found guilty, which didn't happen until 2005. [00:25:00] Speaker 05: Right. [00:25:01] Speaker 04: Yes. [00:25:02] Speaker 05: OK. [00:25:10] Speaker 04: My time is up, Your Honors, but I just... I assume we have no more questions on anything else. [00:25:16] Speaker 03: Oh, we do. [00:25:17] Speaker 03: Thank you. [00:25:17] Speaker 04: Thank you. [00:25:18] Speaker 03: Thank you, counsel. [00:25:19] Speaker 03: All right. [00:25:21] Speaker 03: Is it Mr. Buzai? [00:25:39] Speaker 00: Good morning, Your Honors, and may it please the court, Arya Bezai, certified law student under the supervision of Andrew Knapp and the Southwestern Law School Appellate Litigation Clinic, on behalf of the petitioner, Mr. Posada. [00:25:53] Speaker 00: Your Honors, I have a few points on rebuttal. [00:25:56] Speaker 00: First, to address the FFOA issue, the government's reliance on Estrada and this discussion that somehow the analysis focuses on the similarities between probation and diversion misses the point altogether. [00:26:09] Speaker 00: As Your Honour stated in Laura Garcia versus Garland, the relevant inquiry is if whether the, in clarifying Lujan Armendariz, whether the [00:26:24] Speaker 00: how the defendant would have received relief had they been prosecuted in federal court and then later determining whether that whatever state expungement scheme applied would also have qualified for relief in the federal context. [00:26:42] Speaker 00: Now, Your Honors, as this panel recognized, the fact that Mr. Posada previously violated his diversion is irrelevant. [00:26:53] Speaker 00: And the reason why it's irrelevant is because in federal court, a prior violation of diversion or [00:26:59] Speaker 00: Any sort of rehabilitative scheme attempted for the same first-time simple possession drug charge does not disqualify a defendant from receiving FFOA treatment. [00:27:15] Speaker 00: We can compare this case to United States versus Duras in the Eastern District of Pennsylvania, a district court case. [00:27:21] Speaker 00: where the court there found that even though one of the defendants had violated their condition of diversion, they still nonetheless could have qualified for FFOA sentences. [00:27:35] Speaker 01: Mr. Maisai, what do we do with the fact [00:27:39] Speaker 01: I agree with Judge Graber that the section title is an interesting statutory interpretation question, but the paragraph below several times refers to eligibility as turning on the court acting without entering a judgment of conviction. [00:27:55] Speaker 01: So the court here, at least your friend on the other side argues that we have the entry of a judgment of conviction in November [00:28:07] Speaker 01: of 2005, and so how does this apply, how do you get around the fact that this, whatever the status of what happened before or whatever happened after is, it does not satisfy the text of the FFOA that says without entering a judgment of conviction, or do you disagree that the court entered a judgment of conviction in November 2005? [00:28:33] Speaker 00: No, Your Honor, the court did enter the judgment of conviction in 2005, but the relevant inquiry for determining whether a state court defendant expunged, who received expungement under California Penal Code section 1203.4 as discussed by this court in Lujan Armendariz versus INS and Laura Garcia versus Garland is [00:28:55] Speaker 00: After they receive that, once they have received that probation and once they have satisfied and received expungement, would that also have qualified a defendant? [00:29:07] Speaker 01: So does that turn on your Loper-Bright argument then that the expungement, that that's only not a conviction if we read the expunge conviction is not to be a conviction at all? [00:29:23] Speaker 00: But not necessarily, Your Honor. [00:29:24] Speaker 00: The FFOA provides an independent basis for providing Mr. Posada relief because Mr. Posada did not violate any terms of his probation after he was convicted in 2005. [00:29:37] Speaker 01: But why is that a probation that the FFOA contemplates in this paragraph? [00:29:43] Speaker 01: Everything that it says is the court [00:29:46] Speaker 01: may place him on probation, the probation that it's talking about, any time before the expiration of the term of probation, it is all without entering a judgment of conviction. [00:29:58] Speaker 00: Your Honor, because ultimately the way that FFOA treatment operates in federal court is that it looks to see whether the defendant successfully completed their probation without any sort of violation, and similarly here, Mr. But it has to be prejudgment probation. [00:30:14] Speaker 01: It has to be without a judgment of conviction. [00:30:17] Speaker 01: And the probation you're referring to, do you disagree? [00:30:20] Speaker 01: The probation you're referring to, there's at least two intervening court decisions, either one of which could have been a conviction. [00:30:25] Speaker 01: That one day probation is after the court has entered a judgment of conviction, at the time, viewing it at the time of prosecution. [00:30:36] Speaker 00: At the time of prosecution, but your honor, the relevant inquiry here is looking forward from that time of conviction, whether the defendant then violated that term of probation. [00:30:47] Speaker 00: It's ultimately about the relief that is received. [00:30:50] Speaker 00: The government's reliance on Estrada and suggestion that this can be backdated or somehow that we are looking to see the similarities between the two programs [00:30:58] Speaker 00: is inappropriate here because in Estrada this court made a very narrow finding that under California Penal Code section 1203.4 which provides for either automatic expungement after successful completion of probation without any violation [00:31:16] Speaker 00: or provides for discretionary relief after a violation of probation. [00:31:21] Speaker 00: This court in Estrada recognized that that second form of relief, the discretionary relief after a violation of probation, does not map onto the FFOA. [00:31:31] Speaker 00: And the reason for that is clear, Your Honors, because the FFOA only allows for [00:31:37] Speaker 05: Only allows for expungement after successful completion of probation without any violation Which is exactly what mr. Posada here has satisfied he wasn't that this situation also in Lujan Armandara's The petitioner there, I think was convicted formally convicted and then [00:32:02] Speaker 05: Then the conviction was expunged was vacated a Formal judgment of conviction was entered after a finding of guilt, but was erased after he served probation So isn't that exactly the situation in Lujan I? [00:32:21] Speaker 00: I believe so, Your Honor, and that's similar to what has happened here. [00:32:24] Speaker 00: And again, as Laura Garcia clarified, the key question is, what would have happened had the defendant been prosecuted in federal court? [00:32:33] Speaker 00: And had Mr. Posada been prosecuted in federal court, he would have received, he would have qualified for FFOA treatment. [00:32:41] Speaker 00: I see my time has expired, Your Honors. [00:32:43] Speaker 00: Are there any further questions? [00:32:46] Speaker 00: All right. [00:32:47] Speaker 00: Thank you. [00:32:48] Speaker 03: Thank you very much, counsel. [00:32:49] Speaker 03: I want to thank the Southwestern Law School Clinic for an excellent argument today and for taking this on pro bono. [00:32:58] Speaker 03: And thank you both. [00:33:00] Speaker 03: Thank you both, counsel. [00:33:01] Speaker 01: Thank you. [00:33:04] Speaker 01: Oh, well, thank you very much. [00:33:08] Speaker 03: That's wonderful. [00:33:09] Speaker 03: Thank you all for being here for your support. [00:33:20] Speaker 03: All right, Pasado Martinez or Pasada versus Bondi shall be submitted.