Armando Flores-Herna v. Eric Holder, Jr.

585 F. App'x 462

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 17, 2014
• Docket: 11-72135
• Status: Unpublished

Opinion

MEMORANDUM **

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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.