                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 27 2015

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

LEOBARDO FLORES-MONTANO,                         No. 12-71417
AKA Leobardo Flores, AKA Leovardo
Flores, AKA Scrappy Moniker, AKA                 Agency No. A200-243-299
Leobardo Montano, AKA Miguel
Quinones,
                                                 MEMORANDUM*
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted February 12, 2015
                              Pasadena, California

Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.

       Petitioner Leobardo Flores-Montano (“Flores-Montano”) petitions for

review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of an


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Immigration Judge’s (IJ) decision denying him adjustment of status and

cancellation of removal. The BIA found that the IJ properly pretermitted the

application because Flores-Montano was statutorily ineligible for relief under the

Federal First Offender Act (FFOA), 18 U.S.C. § 3607, due to his 2004 conviction

for possession of a controlled substance in violation of California Health and

Safety Code § 11350(a).

      We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the BIA’s

determination that a controlled substance conviction precludes immigration relief

as a matter of law. Estrada v. Holder, 560 F.3d 1039, 1041 n.1 (9th Cir. 2009)

(citing Ramirez-Altamirano v. Mukasey, 554 F.3d 786, 789 (9th Cir. 2009)). The

BIA’s legal determinations are reviewed de novo. See Nunez-Reyes v. Holder, 646

F.3d 684, 688 (9th Cir. 2011) (en banc); Aguiluz-Arellano v. Gonzales, 446 F.3d

980, 983 (9th Cir. 2006).

      Because Flores-Montano’s drug conviction was in 2004, the prospective rule

in Nunez-Reyes, 646 F.3d at 694, does not apply. We accordingly apply the

reasoning of Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), which

extended FFOA relief to expunged state convictions. The FFOA provides that first

offenders may be placed “on probation for a term of not more than one year

without entering a judgment of conviction” and “if the person has not violated a


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condition of his probation, the court shall . . . dismiss the proceedings.” 18 U.S.C.

§ 3607(a). However, Flores-Montano conceded, and the record discloses, that he

violated his probation multiple times. Thus, Flores-Montano does not qualify for

FFOA relief under Estrada, 560 F.3d at 1042.

      Generally, if the BIA has not addressed a particular issue, “‘the proper

course, except in rare circumstances, is to remand to the agency for additional

investigation or explanation.’” Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per

curiam) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)). However,

“remand is not required where, as here, the issue is purely legal and it involves an

interpretation of the FFOA, a statute which the BIA is not charged with

administering [and the] case requires no further agency expertise or evaluation.”

Aguiluz-Arellano, 446 F.3d at 984; see also Halim v. Holder, 590 F.3d 971,

979–80 (9th Cir. 2009). The conclusion that the FFOA does not apply to Flores-

Montano’s conviction is purely legal, fully supported by the record, and requires

no further agency expertise or evaluation. Therefore, Flores-Montano is removable

and ineligible for adjustment of status. The petition is DENIED.




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