LEOBARDO FLORES-MONTANO V. ERIC HOLDER, JR., No. 12-71417 (9th Cir. 2015)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 27 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS LEOBARDO FLORES-MONTANO, AKA Leobardo Flores, AKA Leovardo Flores, AKA Scrappy Moniker, AKA Leobardo Montano, AKA Miguel Quinones, No. 12-71417 Agency No. A200-243-299 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 in Nunez-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 under Estrada, 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 FloresMontano’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
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