Jose Robles-Calvillo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2021
• Docket: 14-73197
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ROBLES-CALVILLO, No. 14-73197

Petitioner, Agency No. A092-602-328

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Jose Robles-Calvillo, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision finding him removable and denying his application

for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We

* 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). review de novo questions of law. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir.

2014). We deny the petition for review.

The BIA did not err in concluding that California Health and Safety Code

(“CHSC”) § 11377(a) is divisible and in applying the modified categorical

approach to its analysis of Robles-Calvillo’s conviction under the section. See id.

at 984-85 (holding that CHSC § 11377(a) is divisible and subject to the modified

categorical approach); see also United States v. Martinez-Lopez, 864 F.3d 1034,

1040-41 (9th Cir. 2017) (en banc) (holding that a similar California controlled

substance statute is divisible with respect to the listed substances). Thus, the

agency did not err in concluding that Robles-Calvillo’s 2007 conviction under

CHSC § 11377(a) is an offense relating to a controlled substance that renders him

removable. See 8 U.S.C. § 1227(a)(2)(B)(i).

The agency did not err in determining that Robles-Calvillo failed to establish

that his 1994 offense under CHSC § 11377(a) was not a controlled substance

violation that renders him ineligible for cancellation of removal. See 8 U.S.C. §

1229b(d)(1); Pereida v. Wilkinson, 141 S.Ct. 754, 766 (2021) (an applicant for

relief from removal cannot establish eligibility where a conviction record is

inconclusive as to which elements of a divisible statute formed the offense). Thus,

Robles-Calvillo’s cancellation of removal claim fails.

PETITION FOR REVIEW DENIED.

2 14-73197