                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MAURICIO FLORES CARLOS, AKA                      No. 11-71149
Mauricio Flores,
                                                 Agency No. A096-528-535
              Petitioner,

  v.                                             MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted February 8, 2016 **
                               Pasadena, California

Before: KLEINFELD, McKEOWN, and IKUTA, Circuit Judges.




        *
             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 Board of Immigration Appeals ordered that Mauricio Flores Carlos be

removed under 8 U.S.C. § 1227(a)(2)(B)(i). We have jurisdiction under 8 U.S.C. §

1252, and we deny Carlos’s petition for review.



      The BIA held Carlos was removable because he had been convicted under

California Health & Safety Code § 11550(a). Carlos argues that his conviction is

not a “conviction” for immigration purposes, because he would have qualified for

relief from deportation under the Federal First Offender Act, 18 U.S.C. § 3607, had

he been prosecuted under federal law. Lujan-Armendariz v. INS, 222 F.3d 728,

749–50 (9th Cir. 2000), overruled prospectively on other grounds by Nunez-Reyes

v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). We review the BIA’s decision

de novo. Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc).



      If Carlos had been prosecuted in federal court, Carlos would not have

qualified for First Offender Act treatment. That Act only applies to defendants

convicted of simple possession, and Carlos’s conviction for “[b]eing under the

influence is not a lesser offense to simple possession.” Nunez-Reyes, 646 F.3d at

685. We deny Carlos’s petition without remanding to the BIA because “the issue

is purely legal and it involves an interpretation of the [First Offender Act], a statute


                                           2
which the BIA is not charged with administering.” Aguiluz-Arellano v. Gonzales,

446 F.3d 980, 984 (9th Cir. 2006).



      Carlos’s petition is DENIED.




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