Javier Solorio-Alcaraz v. Jefferson Sessions , 699 F. App'x 628 ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER SOLORIO-ALCARAZ, No. 14-73800
Petitioner, Agency No. A097-267-752
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2017**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Javier Solorio-Alcaraz, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) determination that he suffered a
conviction for immigration purposes and was ineligible for cancellation of removal
under 8 U.S.C. § 1229b(b). This court has jurisdiction under 8 U.S.C. § 1252 and
reviews questions of law de novo. Retuta v. Holder, 591 F.3d 1181, 1184 (9th Cir.
2010).
The Immigration Judge and BIA correctly determined that Solorio-Alcaraz’s
plea of no contest to possession of a controlled substance for sale under Nevada
Revised Statutes § 453.337 is a conviction for immigration purposes. A criminal
proceeding constitutes a “conviction” where adjudication of guilt has been
withheld if “the alien has entered a plea of guilty or nolo contendere” and “the
judge has ordered some form of punishment, penalty, or restraint on the alien’s
liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A)(i)-(ii); see also Reyes v. Lynch,
834 F.3d 1104, 1108 (9th Cir. 2016) (holding that “a state conviction expunged
under state law is still a conviction for purposes of eligibility for cancellation of
removal” and that “the federal definition of conviction is satisfied regardless of the
rehabilitative purpose of probation, where the alien was punished or his liberty was
restrained by the terms of his probation”). Solorio-Alcaraz entered a plea of nolo
contendere and the conditions imposed by the Nevada District Court were
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restraints on his liberty. Accordingly, he was convicted of a controlled substance
offense and is statutorily ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(b)(1)(C).
The petition for review is DENIED.
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