Sergio Arriola-Carrillo v. Eric Holder, Jr.

MEMORANDUM

Sergio de Jesus Arriola-Carrillo was convicted of soliciting the commission of a drug offense. CahPenal Code § 653f(d)(l). Such a conviction ordinarily renders an alien inadmissible. See 8 U.S.C. § 1182 (a)(2)(A)(i)(II). Arriola-Car-rillo argues that because his state-court solicitation conviction was later 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 “carrfy] 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…