                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 08 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANTONIO GONZALEZ-ALVAREZ,                        No. 06-73090

              Petitioner,                        Agency No. A077-343-447

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

              Respondent.



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

                     Argued and Submitted November 3, 2010
                              Pasadena, California

Before: SCHROEDER, TALLMAN and M. SMITH, Circuit Judges.

       Petitioner, Antonio Gonzalez-Alvarez, seeks review of a Board of

Immigration Appeals (BIA) order pretermitting his application for Adjustment of

Status pursuant to the Immigration and Nationality Act (INA) § 245(I), 8 U.S.C. §

1255(i). Gonzalez-Alvarez argues that the BIA erred in concluding his drug



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction fails to qualify for treatment under the Federal First Offender Act

(FFOA), 18 U.S.C. § 3607 (2006).

      Gonzalez-Alvarez’s 2001 conviction does not qualify for expungement under

the FFOA because Gonzalez-Alvarez violated the terms of his initial 1995

probation. If a person “violates a condition of his probation, the court shall proceed

in accordance with the provisions of section 3565.” 18 U.S.C. § 3607(a) (2006).

See Estrada v. Holder, 560 F.3d 1039, 1041 (9th Cir. 2009) (“FFOA relief is

unavailable when an offender has violated a condition of probation.”); Paredes-

Urrestarazu v. INS, 36 F.3d 801, 811–12 (9th Cir. 1994) (explaining that an alien’s

offense must fall within the scope of the FFOA for the alien to avoid immigration

consequences). See also Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir.

2000) (noting that Ninth Circuit precedent requires that FFOA benefits “be

extended to aliens whose offenses are expunged under state rehabilitative laws,

provided that they would have been eligible for relief under the Act had their

offenses been prosecuted as federal crimes”).

      The fact that Gonzalez-Alvarez later successfully completed a rehabilitative

program and had the conviction dismissed under state law does not cure the original

violation. Because the 1995 probation violation disposes of this case, we do not

reach the remaining issues.


                                           2
PETITION FOR REVIEW DENIED.




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