Carlos Aldana-Hernandez v. Eric Holder, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2013
• Docket: 09-74103
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 22 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CARLOS ALDANA-HERNANDEZ, No. 09-74103

Petitioner, Agency No. A057-437-139

v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 16, 2013 **

Before: CANBY, IKUTA, and WATFORD, Circuit Judges.

Carlos Aldana-Hernandez, a native and citizen of Mexico, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) dismissing his

appeal from an immigration judge’s removal order. We have jurisdiction under

* 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). 8 U.S.C. § 1252. Reviewing de novo questions of law, Retuta v. Holder, 591 F.3d

1181, 1184 (9th Cir. 2010), we deny the petition for review.

The BIA correctly concluded that Aldana-Hernandez’s conviction under

California Health & Safety Code § 11352(a) renders him removable under

8 U.S.C. § 1227(a)(2)(B) because a modified-categorical analysis of the criminal

complaint, read in conjunction with the minute order, establishes that his offense

relates to cocaine. See Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009)

(“[S]ection 11352(a) addresses only conduct involving controlled substances.”);

21 C.F.R. § 1308.12(b)(4) (listing cocaine as a Schedule II federally controlled

substance); see also United States v. Leal-Vega, 680 F.3d 1160, 1168-69 (9th Cir.

2012) (holding that a criminal complaint specifying a controlled substance, read

together with other judicially noticeable documents confirming a plea to the

complaint, may be sufficient under the modified-categorical analysis to establish a

conviction involving the specified substance, as long as the record of conviction

contains no ambiguity concerning the substance involved).

Aldana-Hernandez’s citations to United States v. Vidal, 504 F.3d 1072

(9th Cir. 2007) (en banc), and Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir.

2007), do not compel a different result, where the record of conviction in each of

2 09-74103 those cases contained ambiguities that prevented the court from linking the plea to

the factual basis stated in the criminal complaint.

PETITION FOR REVIEW DENIED.

3 09-74103