SERGIO DE JESUS ARRIOLA- CARRILLO, AKA Sergio Arriola-Carrillo, AKA Sergio… v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO DE JESUS ARRIOLA-
CARRILLO, AKA Sergio Arriola-Carrillo,
AKA Sergio Arriola-Carrio,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-73220
Agency No. A070-031-599
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2015
Pasadena, California
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.
Sergio de Jesus Arriola-Carrillo was convicted of soliciting the commission
of a drug offense. Cal. Penal Code § 653f(d)(1). Such a conviction ordinarily
renders an alien inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Arriola-
Carrillo argues that because his state-court solicitation conviction was later
FILED
MAR 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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 “carr[y] 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 and would-be sellers can escalate into dangerous confrontations. Mere
possession, by contrast, does not necessarily pose such risks, as the Nunez-Reyes
court observed. Id.
The BIA correctly concluded that Arriola-Carrillo is ineligible for FFOA
treatment. The BIA was therefore also correct that although Arriola-Carrillo’s
conviction was expunged, it nonetheless “remains for immigration purposes,”
rendering Arriola-Carrillo inadmissible and ineligible for adjustment of status.
PETITION DENIED.

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