Opinion
No. 11-73220
03-26-2015
SERGIO DE JESUS ARRIOLA-CARRILLO, AKA Sergio Arriola-Carrillo, AKA Sergio Arriola-Carrio, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A070-031-599 MEMORANDUM 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.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Sergio de Jesus Arriola-Carrillo was convicted of soliciting the commission of a drug offense. Cal. Penal Code § 653f(d)(1). Such a conviction ordinarily renders an alien inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Arriola-Carrillo argues that because his state-court solicitation conviction was later expunged, the Federal First Offender Act, 18 U.S.C. § 3607(a), prevents that conviction from serving as the basis of any adverse immigration consequence.
Arriola-Carrillo does not qualify for FFOA treatment. The FFOA applies only to those convicted of simple possession or a lesser offense. Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. 2011) (en banc). Solicitation is not a lesser offense. Because it does not share the same elements as the federal crime of simple possession, solicitation is "qualitatively different from any federal conviction for which FFOA treatment would be available." Id. Further, like the crime of being under the influence in Nunez-Reyes, solicitation may "carr[y] an immediate risk of dangerous behavior, which mere possession does not necessarily create." Id. The drug trade is notoriously violent, and transactions between would-be buyers and would-be sellers can escalate into dangerous confrontations. Mere possession, by contrast, does not necessarily pose such risks, as the Nunez-Reyes court observed. Id.
The BIA correctly concluded that Arriola-Carrillo is ineligible for FFOA treatment. The BIA was therefore also correct that although Arriola-Carrillo's conviction was expunged, it nonetheless "remains for immigration purposes," rendering Arriola-Carrillo inadmissible and ineligible for adjustment of status.
PETITION DENIED.