William Morales-Cornejo v. Loretta E. Lynch , 637 F. App'x 465 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM ALBERTO MORALES- No. 14-71158
CORNEJO,
Agency No. A044-022-378
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
William Alberto Morales-Cornejo, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision finding him removable
and pretermitting his application for cancellation of removal. Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We review de novo questions of law. Coronado v.
Holder, 759 F.3d 977, 982 (9th Cir. 2014). We deny in part and dismiss in part the
petition for review.
The agency correctly determined that Morales-Cornejo’s conviction under
Cal. Health & Safety Code § 11377(a), for possession of methamphetamine,
constitutes a controlled substance violation which renders him removable under 8
U.S.C. § 1227(a)(2)(B)(i). See Coronado, 759 F.3d at 984-86 (holding that Cal.
Health & Safety Code § 11377(a) is divisible and subject to the modified
categorical approach). Accordingly, the agency correctly concluded that this
conviction interrupted his accrual of the continuous physical presence required for
cancellation of removal. See 8 U.S.C. § 1229b(d)(1)(B) (continuous physical
presence period ends when alien commits enumerated offense). Morales-Cornejo’s
argument challenging Coronado’s treatment of Cal. Health & Safety Code
§ 11377(a) is foreclosed by our decision in United States v. Torre-Jimenez, 771
F.3d 1163, 1165-67 (9th Cir. 2014).
Morales-Cornejo’s contention that he is eligible for Federal First Offender
Act (“FFOA”) treatment under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000), overruled prospectively by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011) (en banc), is without merit because there is no indication that his conviction
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has been expunged. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1291-92 (9th
Cir. 2004) (the FFOA exception does not apply to convicted aliens who are eligible
for, but have not yet received, expungement of the conviction).
We lack jurisdiction to review Morales-Cornejo’s unexhausted contention
that the record of conviction does not show he was necessarily convicted of
possession of methamphetamine. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th
Cir. 2010) (“We lack jurisdiction to review legal claims not presented in an alien’s
administrative proceedings before the BIA.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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