Gonzalez-Alvarez v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION NOV 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTONIO GONZALEZ-ALVAREZ, No. 06-73090
Petitioner, Agency No. A077-343-447
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 3, 2010
Pasadena, California
Before: SCHROEDER, TALLMAN and M. SMITH, Circuit Judges.
Petitioner, Antonio Gonzalez-Alvarez, seeks review of a Board of
Immigration Appeals (BIA) order pretermitting his application for Adjustment of
Status pursuant to the Immigration and Nationality Act (INA) § 245(I), 8 U.S.C. §
1255(i). Gonzalez-Alvarez argues that the BIA erred in concluding his drug
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction fails to qualify for treatment under the Federal First Offender Act
(FFOA), 18 U.S.C. § 3607 (2006).
Gonzalez-Alvarez’s 2001 conviction does not qualify for expungement under
the FFOA because Gonzalez-Alvarez violated the terms of his initial 1995
probation. If a person “violates a condition of his probation, the court shall proceed
in accordance with the provisions of section 3565.” 18 U.S.C. § 3607(a) (2006).
See Estrada v. Holder, 560 F.3d 1039, 1041 (9th Cir. 2009) (“FFOA relief is
unavailable when an offender has violated a condition of probation.”); Paredes-
Urrestarazu v. INS, 36 F.3d 801, 811–12 (9th Cir. 1994) (explaining that an alien’s
offense must fall within the scope of the FFOA for the alien to avoid immigration
consequences). See also 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 have been eligible for relief under the Act had their
offenses been prosecuted as federal crimes”).
The fact that Gonzalez-Alvarez later successfully completed a rehabilitative
program and had the conviction dismissed under state law does not cure the original
violation. Because the 1995 probation violation disposes of this case, we do not
reach the remaining issues.
2
PETITION FOR REVIEW DENIED.
3