                                                                                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                            NOT FOR PUBLICATION                                 FEB 18 2015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.
