MEMORANDUM **

1. The Board of Immigration Appeals properly concluded that Miguel Quinones-Flores is ineligible for relief under the Federal First Offender Act (FFOA), 18 U.S.C. § 3607. If that statute were applicable, Quinones-Flores’ 2003 conviction for being under the influence of methamphetamine would create no adverse collateral immigration consequence. The FFOA applies to expunged convictions for simple possession or a “lesser offense.” Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. 2011) (en banc). But this court has held that being under the influence is not a “lesser offense” than simple possession. Id.

Quinones-Flores argues that Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), which held otherwise, ought to apply to his case. He is incorrect. We overruled Rice in Nunez-Reyes, and we explicitly made that aspect of our decision retroactive. See Nunez-Reyes, 646 F.3d at 695 n. 7 (explaining that no reliance interests prevented retroactive application of the court’s decision to overrule Rice).

2. Quinones-Flores also raises a due process claim, arguing that he did not receive adequate notice of the consequences of departing the country, however briefly, during the pendency of his removal proceedings. To prevail on this claim, *626 Quinones-Flores must show not only a constitutional violation but also prejudice. See Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 872 (9th Cir. 2003) (en banc). He cannot do so in this case. Even if he had been charged with being deportable rather .than being inadmissible, the principal consequence would have been a shift in the burden of proof to the government. The outcome of Quinones-Flores’ removal proceedings did not turn on which party bore the burden of proof, because Quinones-Flores’ documented drug, conviction renders him both removable and ineligible for cancellation of removal. See 8 U.S.C. §§ 1227(a)(2)(B)(i), 1229b(b)(1)(C).

PETITION DENIED.