Mauricio Carlos v. Loretta E. Lynch , 640 F. App'x 663 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURICIO FLORES CARLOS, AKA No. 11-71149
Mauricio Flores,
Agency No. A096-528-535
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2016 **
Pasadena, California
Before: KLEINFELD, McKEOWN, and IKUTA, Circuit Judges.
*
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 Board of Immigration Appeals ordered that Mauricio Flores Carlos be
removed under 8 U.S.C. § 1227(a)(2)(B)(i). We have jurisdiction under 8 U.S.C. §
1252, and we deny Carlos’s petition for review.
The BIA held Carlos was removable because he had been convicted under
California Health & Safety Code § 11550(a). Carlos argues that his conviction is
not a “conviction” for immigration purposes, because he would have qualified for
relief from deportation under the Federal First Offender Act, 18 U.S.C. § 3607, had
he been prosecuted under federal law. Lujan-Armendariz v. INS, 222 F.3d 728,
749–50 (9th Cir. 2000), overruled prospectively on other grounds by Nunez-Reyes
v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). We review the BIA’s decision
de novo. Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc).
If Carlos had been prosecuted in federal court, Carlos would not have
qualified for First Offender Act treatment. That Act only applies to defendants
convicted of simple possession, and Carlos’s conviction for “[b]eing under the
influence is not a lesser offense to simple possession.” Nunez-Reyes, 646 F.3d at
685. We deny Carlos’s petition without remanding to the BIA because “the issue
is purely legal and it involves an interpretation of the [First Offender Act], a statute
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which the BIA is not charged with administering.” Aguiluz-Arellano v. Gonzales,
446 F.3d 980, 984 (9th Cir. 2006).
Carlos’s petition is DENIED.
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