FILED NOT FOR PUBLICATION OCT 15 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANTONIO CRUZ-ARREDONDO, No. 20-71039 Petitioner, Agency No. A073-816-233 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 7, 2021** Portland, Oregon Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges. Antonio Cruz Arredondo (“Cruz”) petitions for review of a decision by the Board of Immigration Appeals (“BIA”) holding that he is ineligible for cancellation of removal, and denying withholding of removal and relief under the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition. 1. Cancellation of Removal: The BIA correctly found that Cruz is ineligible for cancellation of removal because he failed to complete the diversion program for his 2000 California drug possession conviction. A noncitizen is ineligible for cancellation if he was “convicted of . . . a violation of . . . any law . . . relating to a controlled substance.” 8 U.S.C. § 1182(a)(2)(A); see also id. § 1229b(b)(1)(C). While a state drug possession conviction normally qualifies as a conviction under this provision, there is a limited exception if the conviction (1) occurred prior to 2011, (2) was expunged under state law, and (3) could, if charged as a federal crime, have been expunged under the Federal First Offender Act (“FFOA”). See Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000), overruled prospectively by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). But a conviction cannot be expunged under the FFOA when a defendant violates a condition of his probation, as Cruz did when, in January 2001, he failed to complete his diversion program. See Estrada v. Holder, 560 F.3d 1039, 1041–42 (9th Cir. 2009), overruled on other grounds by Mellouli v. Lynch, 135 S. Ct. 1980 (2015); 18 U.S.C. §§ 3607(a), 3565. Cruz’s deferred judgment therefore is a “conviction” under 8 U.S.C. § 1182(a)(2)(A) rendering him ineligible for 2 cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C). 2. Withholding of Removal: Substantial evidence supports the BIA’s denial of withholding under 8 U.S.C. § 1231(b)(3) because Cruz did not establish that he was a member of a cognizable particular social group. Cruz argues that he will be persecuted in Mexico based on his membership in two groups: (1) people who have had family members killed by cartels in Mexico, or (2) people who have defied cartels. But the BIA concluded that Cruz failed to establish that these groups satisfied the particularity or social distinction requirements. Cruz produced little evidence that society views either group as socially distinct. See Diaz-Torres v. Barr, 963 F.3d 976, 980–81 (9th …
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