LAURO ZUNIGA-DIAZ V. ERIC HOLDER, JR., No. 10-71904 (9th Cir. 2013)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 22 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT LAURO GERARDO ZUNIGA-DIAZ, a.k.a. Lauro Gerardo Dias, a.k.a Lauro Gerardo Zuniga, No. 10-71904 Agency No. A091-751-985 Petitioner, MEMORANDUM * v. 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. Lauro Gerardo Zuniga-Diaz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals order summarily affirming the removal order of an immigration judge ( IJ ). Our jurisdiction is governed by * 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. We review de novo questions of law, Rendon v. Mukasey, 520 F.3d 967, 971 (9th Cir. 2008), and review for substantial evidence the IJ s factual findings, Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We deny the petition for review. The IJ correctly concluded that Zuniga-Diaz s conviction under California Health & Safety Code § 11378 constitutes a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) that renders him removable and statutorily ineligible for cancellation of removal. See 8 U.S.C. §§ 1227(a)(2)(B) (removability), 1229b(a)(3) (eligibility for cancellation). A modified-categorical analysis of the felony complaint, read in conjunction with the abstract of judgment, establishes that Zuniga-Diaz was convicted of possession for sale of the federally controlled substance of methamphetamine. See Rendon, 520 F.3d at 976 ( [P]ossession of a controlled substance with the intent to sell contains a trafficking element and is an aggravated felony. ); 21 C.F.R. § 1308.12(d)(2) (listing methamphetamine as a Schedule II 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 2 10-71904 involving the specified substance, as long as the record of conviction contains no ambiguity concerning the substance involved). The IJ did not err by not affording Zuniga-Diaz an opportunity to apply for withholding of removal or protection under the Convention Against Torture ( CAT ) because substantial evidence supports the IJ s determination that ZunigaDiaz did not demonstrate apparent eligibility for this relief. See Valencia v. Mukasey, 548 F.3d 1261, 1262 (9th Cir. 2008) (concluding that an IJ s duty to advise aliens of the availability of relief from removal does not apply where there is no apparent eligibility to receive [relief] ). Although Zuniga-Diaz testified that he was afraid to return to Mexico, he did not express a fear of persecution or torture or articulate other grounds that might support eligibility for withholding of removal or CAT protection. See id. (observing that the alien must express a fear of persecution or torture in the country to which the alien would be returned or articulate some theory that might support a claim in order to show apparent eligibility for withholding of removal or CAT protection). PETITION FOR REVIEW DENIED. 3 10-71904
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