Sergio Arriola-Carrillo v. Eric Holder, Jr.

602 F. App'x 677

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2015
• Docket: 11-73220
• Status: Unpublished

Opinion

MEMORANDUM *

Sergio de Jesus Arriola-Carrillo was convicted of soliciting the commission of a drug offense. CahPenal Code § 653f(d)(l). Such a conviction ordinarily renders an alien inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Arriola-Car-rillo 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 “carrfy] 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 danger ous 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.

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