Leobardo Flores-Montano v. Eric Holder, Jr. , 594 F. App'x 416 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LEOBARDO FLORES-MONTANO, No. 12-71417
AKA Leobardo Flores, AKA Leovardo
Flores, AKA Scrappy Moniker, AKA Agency No. A200-243-299
Leobardo Montano, AKA Miguel
Quinones,
MEMORANDUM*
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2015
Pasadena, California
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.
Petitioner Leobardo Flores-Montano (“Flores-Montano”) petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Immigration Judge’s (IJ) decision denying him adjustment of status and
cancellation of removal. The BIA found that the IJ properly pretermitted the
application because Flores-Montano was statutorily ineligible for relief under the
Federal First Offender Act (FFOA), 18 U.S.C. § 3607, due to his 2004 conviction
for possession of a controlled substance in violation of California Health and
Safety Code § 11350(a).
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. Estrada v. Holder, 560 F.3d 1039, 1041 n.1 (9th Cir. 2009)
(citing Ramirez-Altamirano v. Mukasey, 554 F.3d 786, 789 (9th Cir. 2009)). The
BIA’s legal determinations are reviewed de novo. See Nunez-Reyes v. Holder, 646
F.3d 684, 688 (9th Cir. 2011) (en banc); Aguiluz-Arellano v. Gonzales, 446 F.3d
980, 983 (9th Cir. 2006).
Because Flores-Montano’s drug conviction was in 2004, the prospective rule
in Nunez-Reyes, 646 F.3d at 694, does not apply. We accordingly apply the
reasoning of Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), which
extended FFOA relief to expunged state convictions. The FFOA provides that first
offenders may be placed “on probation for a term of not more than one year
without entering a judgment of conviction” and “if the person has not violated a
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condition of his probation, the court shall . . . dismiss the proceedings.” 18 U.S.C.
§ 3607(a). However, Flores-Montano conceded, and the record discloses, that he
violated his probation multiple times. Thus, Flores-Montano does not qualify for
FFOA relief under Estrada, 560 F.3d at 1042.
Generally, if the BIA has not addressed a particular issue, “‘the proper
course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.’” Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per
curiam) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)). However,
“remand is not required where, as here, the issue is purely legal and it involves an
interpretation of the FFOA, a statute which the BIA is not charged with
administering [and the] case requires no further agency expertise or evaluation.”
Aguiluz-Arellano, 446 F.3d at 984; see also Halim v. Holder, 590 F.3d 971,
979–80 (9th Cir. 2009). The conclusion that the FFOA does not apply to Flores-
Montano’s conviction is purely legal, fully supported by the record, and requires
no further agency expertise or evaluation. Therefore, Flores-Montano is removable
and ineligible for adjustment of status. The petition is DENIED.
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