Nikisha Calliste v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION AUG 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIKISHA CALLISTE, No. 08-71531
Petitioner, Agency No. A072-789-444
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 19, 2011**
San Francisco, California
Before: COWEN***, TASHIMA, and SILVERMAN, Circuit Judges.
Petitioner Nikisha Calliste (“Petitioner”), a native and citizen of Trinidad
and Tobago, petitions for review of the final decision of the Board of Immigration
*
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 Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
Appeals dismissing her appeal from a decision of an Immigration Judge (“IJ”).
The IJ found her subject to removal from the United States and, due to a narcotics
conviction in Arizona, ineligible for relief from removal. We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we deny the petition.
1. Petitioner argues that the expungement of her conviction means that,
pursuant to the Federal First Offender Act (the “FFOA”), it may not render her
ineligible for relief from removal. See 18 U.S.C. § 3607(c). Petitioner’s
conviction and expungement were under Arizona law. This court recently reversed
its prior position that expunged state drug convictions must be treated the same as
federal drug convictions expunged under the FFOA. However, that reversal is
prospective only, so that our prior rule extending FFOA treatment to expunged
state convictions theoretically could apply to Petitioner’s conviction. Nunez-Reyes
v. Holder, No. 05-74350, 2011 WL 2714159, at *3, *8 (9th Cir. July 14, 2011) (en
banc); see Lujan-Armendariz v. INS, 222 F.3d 728, 743 n.24 (9th Cir. 2000).
Because of the nature of Petitioner’s offense, however, we may not grant her
petition on this basis. In Nunez-Reyes, this court made it clear that we may not
accord FFOA treatment to crimes that are “not . . . possession crime[s] at all” and
that are “qualitatively different from” the crime of simple possession. 2011 WL
2714159, at *8. Petitioner was convicted of “Facilitation of Transportation of
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Marijuana for Sale.” This is an offense that is qualitatively different from simple
possession and “arguably . . . more serious than mere possession.” Id.
2. Petitioner also appears to argue that her conviction does not render her
ineligible for admission under 8 U.S.C. § 1182(a)(2)(A)(i)(I) (denying
admissibility to aliens convicted of “a violation of . . . any law or regulation of a
State . . . relating to a controlled substance . . . .”). We lack jurisdiction to hear any
such argument, because Petitioner did not raise this issue in her Notice of Appeal
or brief to the BIA; thus, she failed to exhaust her administrative remedies with
respect to it. See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008).
3. Finally, Petitioner contends that her due process rights were violated
when the IJ concluded that the nature of her conviction rendered the protections of
the FFOA unavailable to her without first holding the hearing that had been
scheduled for October 31, 2006. Petitioner has a right to procedural due process in
the proceedings in her case. See, e.g., Salgado-Diaz v. Gonzales, 395 F.3d 1158,
1162 (9th Cir. 2005). However, Petitioner has failed to demonstrate that she was
denied a full and fair hearing on her claims and a reasonable opportunity to present
her case. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006);
Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003). No fewer than five
hearings were held on Petitioner’s case between November 2005 and September
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2006. At the hearing held on June 7, 2006, Petitioner’s counsel stated to IJ Sarah
Burr that she did not expect IJ Burr to conduct a “merits hearing” and apparently
acquiesced to a ruling on the parties’ submissions alone. An exchange between IJ
John Richardson and Petitioner’s attorney at the hearing held in September 2006
strongly suggests that Petitioner’s attorney expected IJ Richardson to issue a
decision based on Petitioner’s brief alone and did not object to him doing so.
Petitioner also fails to show that the outcome of the proceedings may have
been affected by the alleged due process violation; thus, she has not shown that any
actual prejudice resulted. See Ibarra-Flores, 439 F.3d at 621. The charging
document, plea agreement, and relevant criminal statute were submitted into
evidence and considered by the IJ, and Petitioner does not suggest that any
additional admissible documents or facts exist. See, e.g., Shepard v. United States,
544 U.S. 13, 16 (2005); Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012 (9th Cir.
2009).
Accordingly, the petition for review is DENIED.
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