                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           FEB 11 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JESUS CALDERA-ROBLES,                            No. 14-71566

              Petitioner,                        Agency No. A037-802-357

  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.

       The Board of Immigration Appeals ordered that Jesus Caldera-Robles be

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

1252, and we deny Caldera-Robles’s petition for review.



        *
             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).
      Caldera-Robles argues that his conviction under California Health & Safety

Code § 11550(a) 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 de novo the BIA’s determination ‘that a controlled substance conviction

precludes immigration relief as a matter of law.’” Nunez-Reyes v. Holder, 646

F.3d 684, 688 (9th Cir. 2011) (en banc) (quoting Ramirez-Altamirano v. Holder,

563 F.3d 800, 804 (9th Cir. 2009)).



      Caldera-Robles was convicted for possession of concentrated cannabis in

violation of California Health & Safety Code § 11357(a) in 1990, so his 2005

conviction cannot qualify for Federal First Offender Act treatment. See 18 U.S.C.

§ 3607(a) (Federal First Offender Act applies to a person who has not previously

“been convicted of violating a Federal or State law relating to controlled

substances . . . .”); Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 983–84 (9th Cir.

2006) (holding the Federal First Offender Act cannot apply to second controlled

substance offense).


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      Caldera-Robles argues his 1990 conviction was not a removable conviction,

because that term was not defined until the enactment of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, (IIRIRA) § 322(a)(1), 8 U.S.C.

§ 1101(a)(48)(a), and it should not have precluded his 2005 conviction from

receiving Federal First Offender Act treatment. But the Federal First Offender Act

says nothing about the removability of prior convictions, just convictions for

“violating a Federal or State law relating to controlled substances . . . .” 18 U.S.C.

§ 3607(a); see also Aguiluz-Arellano, 446 F.3d at 984. The IIRIRA also provided

that the amendment made to 8 U.S.C. § 1101(a)(48)(A), defining “conviction,”

applied to “convictions and sentences entered before, on, or after the date of the

enactment of [the] Act.” IIRIRA § 322(c).



      The BIA did not abuse its discretion by affirming the IJ’s denial of Caldera

Robles’s motion for a continuance, or by denying his motion for remand.

Expungement of his prior convictions did not affect his removability for the 2005

conviction because it was not his first controlled substance offense. See de la Cruz

v. INS, 951 F.2d 226, 229 (9th Cir. 1991) (not an abuse of discretion to deny

motion for a continuance where petitioner was statutorily ineligible for relief); de

Jesus Melendez v. Gonzalez, 503 F.3d 1019, 1023–27 (9th Cir. 2007) (not an


                                           3
abuse of discretion to deny motion for remand where petitioner was statutorily

ineligible for relief). And Caldera-Robles’s due process claim fails, because the

BIA’s decision to affirm the denial of his motion for a continuance did not

prejudice him. See Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001).

Denying Caldera-Robles’s motion for a continuance was not prejudicial because

his motion was based on the speculative future possibility of expungement of his

first conviction, cf. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.

2008) (per curiam), and regardless, he was removable for his 2005 conviction. See

id.



      Caldera-Robles’s petition is DENIED.




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