                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                               FILED
                            FOR THE NINTH CIRCUIT                                MAR 26 2015

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

SERGIO DE JESUS ARRIOLA-                         No. 11-73220
CARRILLO, AKA Sergio Arriola-Carrillo,
AKA Sergio Arriola-Carrio,                       Agency No. A070-031-599

              Petitioner,
                                                 MEMORANDUM*
  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.

       Sergio de Jesus Arriola-Carrillo was convicted of soliciting the commission

of a drug offense. Cal. Penal Code § 653f(d)(1). Such a conviction ordinarily

renders an alien inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Arriola-

Carrillo argues that because his state-court solicitation conviction was later


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                          Page 2 of 2
expunged, the Federal First Offender Act, 18 U.S.C. § 3607(a), prevents that

conviction from serving as the basis of any adverse immigration consequence.

      Arriola-Carrillo does not qualify for FFOA treatment. The FFOA applies

only to those convicted of simple possession or a lesser offense. Nunez-Reyes v.

Holder, 646 F.3d 684, 695 (9th Cir. 2011) (en banc). Solicitation is not a lesser

offense. Because it does not share the same elements as the federal crime of

simple possession, solicitation is “qualitatively different from any federal

conviction for which FFOA treatment would be available.” Id. Further, like the

crime of being under the influence in Nunez-Reyes, solicitation may “carr[y] an

immediate risk of dangerous behavior, which mere possession does not necessarily

create.” Id. The drug trade is notoriously violent, and transactions between would-

be buyers and would-be sellers can escalate into dangerous confrontations. Mere

possession, by contrast, does not necessarily pose such risks, as the Nunez-Reyes

court observed. Id.

      The BIA correctly concluded that Arriola-Carrillo is ineligible for FFOA

treatment. The BIA was therefore also correct that although Arriola-Carrillo’s

conviction was expunged, it nonetheless “remains for immigration purposes,”

rendering Arriola-Carrillo inadmissible and ineligible for adjustment of status.

      PETITION DENIED.
