DocketNumber: 12-71417
Citation Numbers: 594 F. App'x 416
Filed Date: 2/27/2015
Status: Non-Precedential
Modified Date: 1/13/2023
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 27 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS LEOBARDO FLORES-MONTANO, No. 12-71417 AKA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 inNunez-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 2 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 underEstrada, 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. 3
Hector Tito Lujan-Armendariz v. Immigration and ... , 222 F.3d 728 ( 2000 )
Vacilio Aguiluz-Arellano v. Alberto R. Gonzales, Attorney ... , 446 F.3d 980 ( 2006 )
Ramirez-Altamirano v. Mukasey , 554 F.3d 786 ( 2009 )
Estrada v. Holder , 560 F.3d 1039 ( 2009 )
Halim v. Holder , 590 F.3d 971 ( 2009 )
Nunez-Reyes v. Holder , 646 F.3d 684 ( 2011 )
Gonzales v. Thomas , 126 S. Ct. 1613 ( 2006 )
Immigration & Naturalization Service v. Ventura , 123 S. Ct. 353 ( 2002 )