Sandoval Acosta v. Holder

FILED
NOT FOR PUBLICATION FEB 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAMIRO SANDOVAL ACOSTA, No. 06-75798
Petitioner, Agency No. A091-710-582
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2010 **
San Francisco, California
Before: NOONAN, BERZON and IKUTA, Circuit Judges.
Ramiro Sandoval Acosta petitions for review of the Board of Immigration
Appeal’s (BIA) denial of his application for cancellation of removal. This Court
has jurisdiction to review questions of law. 8 U.S.C. § 1252(a)(2)(D). We review
*
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).
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de novo and without deference the BIA’s interpretation of the Federal First
Offender Act (FFOA), 18 U.S.C. § 3607, because the agency does not administer
the statute. De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir. 2007).
We deny the petition.
The BIA properly concluded that Sandoval Acosta was ineligible for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C) because he was
“convicted of . . . a violation of . . . a[ ] law . . . relating to a controlled substance,”
8 U.S.C. § 1182(a)(2)(A), and was, therefore, statutorily barred from establishing
good moral character. Sandoval Acosta pleaded guilty to a 1999 charge under
California Health & Safety Code § 11350 for possession of cocaine and received a
deferred adjudication. The 1999 offense was not eligible for treatment as a first
offense under the Federal First Offender Act, 18 U.S.C. § 3607, such that Sandoval
Acosta could avoid deportation. See Lujan-Armendariz v. I.N.S., 222 F.3d 728,
749–50 (9th Cir. 2000). Sandoval Acosta’s 1985 “participation in California’s
pretrial diversion on a similar charge [to his 1999 controlled substances charge]
constituted his one bite at FFOA-type treatment.” De Jesus Melendez, 503 F.3d at
1025. He need not have pleaded guilty to the 1985 charge for this to be so. Id. at
1026.
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The disposition of the 1999 offense, therefore, falls within the Immigration
and Nationality Act’s definition of “conviction,” 8 U.S.C. § 1101(a)(48)(A), and
Sandoval Acosta was statutorily barred from establishing good moral character, see
8 U.S.C. § 1101(f)(3) (cross-referencing § 1182(a)(2)(A) as a statutory bar to a
good moral character finding). The BIA did not err by denying Sandoval Acosta’s
application for cancellation of removal.
DENIED.
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