Miguel Quinones-Flores v. Eric Holder, Jr. , 592 F. App'x 625 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL ANGEL QUINONES-FLORES, No. 13-71136
Petitioner, Agency No. A072-320-607
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2015**
Pasadena, California
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.
1. The Board of Immigration Appeals properly concluded that Miguel
Quinones-Flores is ineligible for relief under the Federal First Offender Act
(FFOA), 18 U.S.C. § 3607. If that statute were applicable, Quinones-Flores’ 2003
conviction for being under the influence of methamphetamine would create no
*
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).
Page 2 of 3
adverse collateral immigration consequence. The FFOA applies to expunged
convictions for simple possession or a “lesser offense.” Nunez-Reyes v. Holder,
646 F.3d 684, 695 (9th Cir. 2011) (en banc). But this court has held that being
under the influence is not a “lesser offense” than simple possession. Id.Quinones-Flores argues that Rice v. Holder, 597 F.3d 952 (9th Cir. 2010),
which held otherwise, ought to apply to his case. He is incorrect. We overruled
Rice in Nunez-Reyes, and we explicitly made that aspect of our decision
retroactive. See Nunez-Reyes, 646 F.3d at 695 n.7 (explaining that no reliance
interests prevented retroactive application of the court’s decision to overrule Rice).
2. Quinones-Flores also raises a due process claim, arguing that he did not
receive adequate notice of the consequences of departing the country, however
briefly, during the pendency of his removal proceedings. To prevail on this claim,
Quinones-Flores must show not only a constitutional violation but also prejudice.
See Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 872 (9th Cir. 2003) (en banc).
He cannot do so in this case. Even if he had been charged with being deportable
rather than being inadmissible, the principal consequence would have been a shift
in the burden of proof to the government. The outcome of Quinones-Flores’
removal proceedings did not turn on which party bore the burden of proof, because
Quinones-Flores’ documented drug conviction renders him both removable and
Page 3 of 3
ineligible for cancellation of removal. See 8 U.S.C. §§ 1227(a)(2)(B)(i),
1229b(b)(1)(C).
PETITION DENIED.