Garcia v. Holder , 376 F. App'x 702 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FERNANDO MIGUEL GARCIA, No. 05-77173
Petitioner, Agency No. A090-080-326
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
FERNANDO MIGUEL GARCIA, No. 06-71210
Petitioner, Agency No. A090-080-326
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted March 12, 2010**
San Francisco, California
Before: HUG and BYBEE, Circuit Judges, and GWIN, *** District Judge.
Fernando Miguel Garcia, a native and citizen of El Salvador, petitions for
review of a Board of Immigration Appeals order affirming an Immigration Judge’s
decision holding that petitioner is a removable criminal alien under 8 U.S.C. §
1227(a)(2)(B)(i) and denying petitioner’s applications for further relief. We deny
the petition in part and dismiss in part.
“[R]emovability under 8 U.S.C. § 1227(a)(2)(B)(i) does not turn on whether
the law includes solicitation offenses. Rather . . . removability under §
1227(a)(2)(B)(i) turns on whether the statute of conviction is a law relating to
controlled substances.” Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009)
(internal citations omitted). Since California Health & Safety Code § 11352(a) “by
its own terms is a state law relating to a controlled substance,” a conviction under
that statute constitutes a removable offense under 8 U.S.C. § 1227(a)(2)(B)(i)
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
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where the conviction “involved [ ] a federally controlled substance.” Id. at 993,
995 (quotation marks omitted).
We employ the modified categorical approach to determine whether
Garcia’s conviction under California Health & Safety Code § 11352(a) involved a
federally controlled substance. See id. at 995-96. “Under this approach, we
determine whether a conviction constitutes a predicate offense for removal by
examining a narrow, specified set of documents that are part of the record of
conviction, including the indictment, the judgment of conviction, jury instructions,
a signed guilty plea, or the transcript from the plea proceedings.” Mielewczyk, 575
F.3d at 995 (quotation marks omitted). Here, both the sworn, certified criminal
complaint to which Garcia pleaded guilty and the transcript of Garcia’s plea
proceeding establish that Garcia’s § 11352 conviction involved cocaine, a federally
controlled substance.
Garcia raises additional grounds in his petition for review, but our
jurisdiction is limited to “constitutional claims or questions of law” over the
remainder of Garcia’s petition. See 8 U.S.C. §§ 1252(a)(2)(C) and (D). We lack
jurisdiction to review what Garcia describes as “[t]he IJ’s and BIA’s factual errors”
or the IJ’s determination that Garcia failed to prove his eligibility for asylum. See
Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993) (“Factual findings, including
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the determination that an alien has failed to prove his eligibility for asylum, are
reviewed under the substantial evidence standard.”).
Garcia’s legal and constitutional claims lack merit. The police report for
pandering was admissible under 8 C.F.R. § 1240.7(a), and even if the IJ had erred
in admitting the report, it did not prejudice Garcia. See Cinapian v. Holder, 567
F.3d 1067, 1074 (9th Cir. 2009) (“To warrant a new hearing, the alien must []
show prejudice, which means that the outcome of the proceeding may have been
affected by the alleged violation.” (quotation marks omitted)). The record already
contained proof of Garcia’s two separate felony convictions, and the IJ gave no
indication that he relied on the police report in denying Garcia’s application.
Garcia was not prejudiced by the IJ’s refusal to provide an interpreter for his
mother’s testimony. The record reveals that Garcia’s mother testified fully and
competently, even eliciting praise from the IJ at the close of her testimony.
Moreover, there is no reason to believe that the IJ’s ultimate decision would have
been any different had an interpreter been provided for Garcia’s mother.
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
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