Milton Lomeli-Capetillo v. Eric Holder, Jr. , 591 F. App'x 596 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTON LOMELI-CAPETILLO, No. 10-70944
Petitioner, Agency No. A037-429-761
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Milton Lomeli-Capetillo, 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 removal order. We have jurisdiction under 8 U.S.C. § 1252.
We review de novo questions of law. Coronado v. Holder, 759 F.3d 977, 982 (9th
*
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).
Cir. 2014). We deny the petition for review. We review de novo questions of law.
As Lomeli-Capetillo conceded in his appeal brief before the BIA, an abstract
of judgment is a judicially noticeable document that can be used in a modified
categorical analysis. See Kwong v. Holder, 671 F.3d 872, 879-80 (9th Cir. 2011).
We are not persuaded by Lomeli-Capetillo’s contention that the felony complaint
is not a judicially noticeable document and cannot be used in the modified
categorical analysis. See Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.
2013) (per curiam) (Where “the abstract of judgment or minute order specifies that
a defendant pleaded guilty to a particular count of the criminal complaint or
indictment, we can consider the facts alleged in that count.”).
Under the modified categorical analysis, the abstract of judgment and the
felony complaint, taken together, show that Lomeli-Capetillo pled guilty to two
counts of violating California Health & Safety Code § 11379(a), transportation of
methamphetamine. See id.; Coronado, 759 at 984-86. Accordingly, the agency
properly concluded that the Department of Homeland Security presented clear and
convincing evidence that Lomeli-Capetillo is removable under 8 U.S.C.
§ 1227(a)(2)(B)(i).
We deny the government’s renewed motion for remand.
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This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED.
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