NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ARMANDO FLORES-HERNA, No. 11-72135
Petitioner, Agency No. A076-625-266
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2014**
Pasadena, California
Before: TALLMAN, BEA, and FRIEDLAND, Circuit Judges.
Armando Flores-Herna petitions for review of the Board of Immigration
Appeals’ decision denying Flores-Herna adjustment of status on account of his
2005 conviction for possessing a controlled substance “while armed with a loaded,
operable firearm.” See Cal. Health & Safety Code § 11370.1 (1996). Flores-Herna
*
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).
argues his conviction is eligible for relief under the safe-harbor provision of the
Federal First Offender Act, which requires that a petitioner’s conviction be for
“possession of drugs, or an equivalent or lesser charge such as possession of drug
paraphernalia.” Ramirez-Altamirano v. Holder, 563 F.3d 800, 812 (9th Cir. 2009),
overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011) (en banc); see also Lopez-Vasquez v. Holder, 706 F.3d 1072, 1074–75 (9th
Cir. 2013). On its face, Flores-Herna’s 2005 conviction requires more conduct
than mere possession of drugs; the conviction requires possession of drugs while
armed with a loaded and operable firearm. The conviction therefore cannot qualify
as “possession of drugs, or an equivalent or lesser charge.” Ramirez-Altamirano,
563 F.3d at 812.
DENIED.
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