Leobardo Flores-Montano v. Eric Holder, Jr.

MEMORANDUM

Petitioner Leobardo Flores-Montano (“Flores-Montano”) petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of an Immigration Judge’s (IJ) decision denying him adjustment of status and cancellation of removal. The BIA found that the IJ properly pre-termitted 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…