Maria Delgado-Rodriguez v. Merrick Garland

Opinion

FILED

NOT FOR PUBLICATION

NOV 16 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA DEL SOCORRO DELGADO- No. 15-70657 RODRIGUEZ, Agency No. A034-571-974

Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 14, 2023** Pasadena, California

Before: RAWLINSON, HURWITZ, and OWENS, Circuit Judges.

Maria Del Socorro Delgado-Rodriguez (Delgado), a native and citizen of Mexico, petitions for review of a decision from the Board of Immigration Appeals (BIA) dismissing her appeal of a removal order. Delgado contends that her

*

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).

convictions under California Health & Safety Code §§ 11378 and 11379(a) cannot serve as bases for removal because the statutes do not contain a drug trafficking element, and thus do not constitute aggravated felonies. We review de novo “whether a state statutory crime qualifies as an aggravated felony.” Jauregui- Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020) (citations omitted). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. The BIA did not err when determining that § 11378 is an aggravated felony. We have consistently held that § 11378 contains “an illicit trafficking element.” United States v. Verduzco-Rangel, 884 F.3d 918, 923 (9th Cir. 2018) (citation and internal quotation marks omitted). And, contrary to Delgado’s contention, the record of conviction conclusively demonstrates that the conviction involved methamphetamine, a federally controlled substance. See 21 U.S.C. § 812(c), scheds. II(c), III(a)(3).

The minute order from the state court proceeding reflects that Delgado pled nolo contendere to violating § 11378 as charged in Count 2 of the felony complaint, which alleged that Delgado unlawfully possessed methamphetamine “for purpose of sale.” See United States v. Torre-Jimenez, 771 F.3d 1163, 1168 (9th Cir. 2014) (“Where the minute order . . . specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the

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facts alleged in the complaint. . . .”) (citations omitted). Thus, Delgado’s removal was correctly premised on her conviction under § 11378.

2. Delgado’s arguments relating to her conviction under § 11379(a) do not support a remand because the BIA held that Delgado’s conviction under that statute did not constitute an aggravated felony. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir. 2004) (explaining that remand is appropriate only when the denial of relief was based on an error of law).

PETITION DENIED.