Miguel Quinones-Flores v. Eric Holder, Jr.

MEMORANDUM

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 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…