Opinion
No. 11-72135
10-17-2014
ARMANDO FLORES-HERNA, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A076-625-266 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 7, 2014 Pasadena, California Before: TALLMAN, BEA, and FRIEDLAND, Circuit Judges.
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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Armando Flores-Herna petitions for review of the Board of Immigration Appeals' decision denying Flores-Herna adjustment of status on account of his 2005 conviction for possessing a controlled substance "while armed with a loaded, operable firearm." See Cal. Health & Safety Code § 11370.1 (1996). Flores-Herna argues his conviction is eligible for relief under the safe-harbor provision of the Federal First Offender Act, which requires that a petitioner's conviction be for "possession of drugs, or an equivalent or lesser charge such as possession of drug paraphernalia." Ramirez-Altamirano v. Holder, 563 F.3d 800, 812 (9th Cir. 2009), overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc); see also Lopez-Vasquez v. Holder, 706 F.3d 1072, 1074-75 (9th Cir. 2013). On its face, Flores-Herna's 2005 conviction requires more conduct than mere possession of drugs; the conviction requires possession of drugs while armed with a loaded and operable firearm. The conviction therefore cannot qualify as "possession of drugs, or an equivalent or lesser charge." Ramirez-Altamirano, 563 F.3d at 812.
DENIED.