                                                                               FILED
                              NOT FOR PUBLICATION                              AUG 25 2011

                                                                            MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


NIKISHA CALLISTE,                                 No. 08-71531

                Petitioner,                       Agency No. A072-789-444

  v.
                                                  MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,

                Respondent.


                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                              Submitted August 19, 2011**
                                San Francisco, California

Before:         COWEN***, TASHIMA, and SILVERMAN, Circuit Judges.

       Petitioner Nikisha Calliste (“Petitioner”), a native and citizen of Trinidad

and Tobago, petitions for review of the final decision of the Board of Immigration



          *
             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).
          ***
             The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
Appeals dismissing her appeal from a decision of an Immigration Judge (“IJ”).

The IJ found her subject to removal from the United States and, due to a narcotics

conviction in Arizona, ineligible for relief from removal. We have jurisdiction

pursuant to 8 U.S.C. § 1252, and we deny the petition.

      1.     Petitioner argues that the expungement of her conviction means that,

pursuant to the Federal First Offender Act (the “FFOA”), it may not render her

ineligible for relief from removal. See 18 U.S.C. § 3607(c). Petitioner’s

conviction and expungement were under Arizona law. This court recently reversed

its prior position that expunged state drug convictions must be treated the same as

federal drug convictions expunged under the FFOA. However, that reversal is

prospective only, so that our prior rule extending FFOA treatment to expunged

state convictions theoretically could apply to Petitioner’s conviction. Nunez-Reyes

v. Holder, No. 05-74350, 2011 WL 2714159, at *3, *8 (9th Cir. July 14, 2011) (en

banc); see Lujan-Armendariz v. INS, 222 F.3d 728, 743 n.24 (9th Cir. 2000).

      Because of the nature of Petitioner’s offense, however, we may not grant her

petition on this basis. In Nunez-Reyes, this court made it clear that we may not

accord FFOA treatment to crimes that are “not . . . possession crime[s] at all” and

that are “qualitatively different from” the crime of simple possession. 2011 WL

2714159, at *8. Petitioner was convicted of “Facilitation of Transportation of


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Marijuana for Sale.” This is an offense that is qualitatively different from simple

possession and “arguably . . . more serious than mere possession.” Id.

      2.     Petitioner also appears to argue that her conviction does not render her

ineligible for admission under 8 U.S.C. § 1182(a)(2)(A)(i)(I) (denying

admissibility to aliens convicted of “a violation of . . . any law or regulation of a

State . . . relating to a controlled substance . . . .”). We lack jurisdiction to hear any

such argument, because Petitioner did not raise this issue in her Notice of Appeal

or brief to the BIA; thus, she failed to exhaust her administrative remedies with

respect to it. See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008).

      3.     Finally, Petitioner contends that her due process rights were violated

when the IJ concluded that the nature of her conviction rendered the protections of

the FFOA unavailable to her without first holding the hearing that had been

scheduled for October 31, 2006. Petitioner has a right to procedural due process in

the proceedings in her case. See, e.g., Salgado-Diaz v. Gonzales, 395 F.3d 1158,

1162 (9th Cir. 2005). However, Petitioner has failed to demonstrate that she was

denied a full and fair hearing on her claims and a reasonable opportunity to present

her case. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006);

Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003). No fewer than five

hearings were held on Petitioner’s case between November 2005 and September


                                            3
2006. At the hearing held on June 7, 2006, Petitioner’s counsel stated to IJ Sarah

Burr that she did not expect IJ Burr to conduct a “merits hearing” and apparently

acquiesced to a ruling on the parties’ submissions alone. An exchange between IJ

John Richardson and Petitioner’s attorney at the hearing held in September 2006

strongly suggests that Petitioner’s attorney expected IJ Richardson to issue a

decision based on Petitioner’s brief alone and did not object to him doing so.

      Petitioner also fails to show that the outcome of the proceedings may have

been affected by the alleged due process violation; thus, she has not shown that any

actual prejudice resulted. See Ibarra-Flores, 439 F.3d at 621. The charging

document, plea agreement, and relevant criminal statute were submitted into

evidence and considered by the IJ, and Petitioner does not suggest that any

additional admissible documents or facts exist. See, e.g., Shepard v. United States,

544 U.S. 13, 16 (2005); Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012 (9th Cir.

2009).

      Accordingly, the petition for review is DENIED.




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