Jorge Contreras-Negrete v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION MAR 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE CONTRERAS-NEGRETE, AKA No. 14-72650
Jorge Contreras, AKA Jose Contreras,
Agency No. A095-773-014
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Jorge Contreras-Negrete, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision finding him removable and statutorily ineligible for
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo questions of law. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir.
2014). We deny in part and dismiss in part the petition for review.
Contreras-Negrete pleaded guilty to possession of a controlled substance
under California Health & Safety Code § 11377(a). The record of conviction
establishes that the controlled substance underlying his conviction was
methamphetamine. He subsequently twice failed to comply with the terms of his
grant of deferred entry of judgment under California Penal Code § 1000. Because
of his failure to abide by the terms of the deferred judgment program, Contreras-
Negrete would have been ineligible for relief under the Federal First Offender Act
(“FFOA”) had he been prosecuted in federal court. See 18 U.S.C. § 3607(a). The
fact that Contreras-Negrete later successfully completed a rehabilitative program
and had the conviction dismissed under state law does not cure the original
violations. See 8 U.S.C. § 1101(a)(48)(A); see also Estrada v. Holder, 560 F.3d
1039, 1042 (9th Cir. 2009) (“FFOA relief is not available when the person whose
conviction is expunged has violated a condition of probation.”), overruled on other
grounds by Mellouli v. Lynch, – U.S. –, 135 S. Ct. 1980, 192 L. Ed. 2d 60 (2015);
Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000) (noting that Ninth
Circuit precedent requires that FFOA benefits “be extended to aliens whose
offenses are expunged under state rehabilitative laws, provided that they would
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have been eligible for relief under the Act had their offenses been prosecuted as
federal crimes”), overruled prospectively by Nunez-Reyes v. Holder, 646 F.3d 684(9th Cir. 2011) (en banc). Therefore, the agency did not err in concluding that
Contreras-Negrete was ineligible for cancellation of removal under § 1229b(b)(1)
for having been convicted of a crime “relating to a controlled substance.” See 8
U.S.C. § 1182(a)(2)(A)(i)(II).
Contreras-Negrete’s contention that the BIA ignored evidence is not
supported by the record, and the BIA did not need to reach the issue of hardship.
We lack jurisdiction to review Contreras-Negrete’s remaining unexhausted
due process claims. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004)
(explaining that procedural due process claims must be exhausted).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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