Ramirez Campos v. Holder , 450 F. App'x 577 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN RAMIREZ CAMPOS, No. 06-71355
Petitioner, Agency No. A027-570-264
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2011 **
Pasadena, California
Before: CUDAHY ***, WARDLAW, and W. FLETCHER, Circuit Judges.
Juan Ramirez Campos (“Ramirez”), a citizen and national of Mexico,
petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his
*
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).
***
The Honorable Richard D. Cudahy, Senior Circuit Judge for the
Seventh Circuit, sitting by designation.
appeal from the Immigration Judge’s (“IJ”) order of removal. We review the
BIA’s legal determinations de novo. Aguiluz-Arellano v. Gonzales, 446 F.3d 980,
983 (9th Cir. 2006). When the BIA adopts the IJ’s decision, we review the IJ’s
decision as if it were the BIA’s. Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th
Cir. 2002). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the
petition.
The BIA correctly determined that expungement of Ramirez’s conviction for
possession of marijuana for sale, Cal. Health & Safety Code § 11359, did not
eliminate the conviction for immigration purposes. See Ramirez-Castro v. INS,
287 F.3d 1172, 1174 (9th Cir. 2002) (state expungement of a criminal conviction
generally does not remove its consequences in immigration proceedings).
Ramirez’s conviction under § 11359 for possession for sale is not covered by the
Federal First Offender Act (“FFOA”), 18 U.S.C. § 3607, which for immigration
purposes eliminates only convictions for simple possession. Cardenas-Uriarte v.
INS, 227 F.3d 1132, 1136 (9th Cir. 2000) (“The Federal First Offender Act
requires a plea or conviction of possession of a controlled substance, as described
in 21 U.S.C. § 844.”), overruled in part on other grounds by Nunez-Reyes v.
Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). Thus, Ramirez’s § 11359
conviction renders him inadmissible on the basis of a controlled substance
2
violation, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and ineligible for waiver of
inadmissibility under § 1182(h).
Ramirez’s claim that he was denied due process because the BIA did not
address his § 1182(h) waiver claim lacks merit. The BIA expressly adopted the
IJ’s decision, which discussed the waiver claim. Moreover, because Ramirez is
ineligible for waiver under § 1182(h), he cannot make the necessary showing of
prejudice. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 & n.16 (9th Cir.
2003) (an alien “must show prejudice to succeed in a due process challenge”).
DENIED.
3