Opinion
No. 07-73531.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 17, 2010.
Hugo F. Larios, Esquire, Tempe, AZ, for Petitioner.
OIL, Saul Greenstein, Esquire, Linda S. Wendtland, Esquire, DOJ-U.S. Department of Justice, Washington, DC, District Counsel Phoenix, Esquire, Office of the District Director, U.S. Department of Homeland Security, Phoenix, AZ, Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A035-705-787.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Petitioner Andres Garcia-Ruesga petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal of an Immigration Judge's decision ordering him removed to Mexico. He argues that his conviction for "sale/transportation/offer to sell controlled substance" in violation of California Health and Safety Code Section 11352(a) does not render him removable under 8 U.S.C. § 1227(a)(2)(B)(i). We hold that the BIA correctly determined that Garcia-Ruesga committed a removable offense, and dismiss his petition for review for lack of jurisdiction.
An alien is removable if, after admission into the United States, he is "convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State . . . relating to a controlled substance (as defined in Section 802 of Title 21). . . ." 8 U.S.C. § 1227(a)(2)(B)(i). In 2004, Garcia-Ruesga was convicted under California Health and Safety Code Section 11352(a), which punishes a person "who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer or give away, or attempts to import into this state or transport [] any controlled substance specified in [various provisions]." CAL. HEALTH SAFETY CODE § 11352(a) (emphasis added). In order to determine whether Garcia-Ruesga's California conviction qualifies under this removal statute, we use "the analytical model constructed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 [(1990)]." Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009).
Under the categorical approach, California Health and Safety Code Section 11352(a) does not meet the requirements for removability under 8 U.S.C. § 1227(a)(2)(B)(i) because the California statute includes controlled substances not covered by the federal Controlled Substances Act. See id. at 995. However, under the modified categorical approach, the indictment from Garcia-Ruesga's California case clearly demonstrates that the controlled substance involved in Garcia-Ruesga's crime was cocaine, which is covered by the Controlled Substances Act. See 21 U.S.C. §§ 802(6), 812 Schedule II(a)(4).
Garcia-Ruesga does not dispute that he was convicted of an offense involving a federally controlled substance, and argues only that because the California statute covers solicitation to commit a controlled substance violation, see CAL. HEALTH SAFETY CODE § 11352(a), and because the conviction documents do not clarify whether he was convicted of solicitation, the government has not established that Garcia-Ruesga was convicted of a controlled substance offense as defined in 8 U.S.C. § 1227(a)(2)(B)(i). He is incorrect. We explicitly held in Mielewczyk that a conviction under the exact California statute at issue in Garcia-Ruesga's case renders an alien removable under 8 U.S.C. § 1227(a)(2)(B)(i) because the California statute is not a generic solicitation statute but rather a statute that, "by its own terms[,] is a state law `relating to a controlled substance.'" 575 F.3d at 993; cf. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997) (holding that petitioner's state conviction under a generic solicitation statute did not render him removable under 8 U.S.C. § 1227(a)(2)(B)(i)).
Thus, under Mielewczyk, Garcia-Ruesga's California offense qualifies as a violation of a law "relating to a controlled substance" under the modified categorical approach, making Garcia-Ruesga removable under 8 U.S.C. § 1227(a)(2)(B)(i). And because Garcia-Ruesga has not raised any other constitutional claims or questions of law, see 8 U.S.C. § 1252(a)(2)(D), his removability under 8 U.S.C. § 1227(a)(2)(B)(i) strips this court of jurisdiction over his petition for review, see 8 U.S.C. § 1252(a)(2)(C); Luu-Le v. INS, 224 F.3d 911, 914, 916 (9th Cir. 2000).
DISMISSED.