Edgar Gonzalez v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION AUG 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR GABRIEL GONZALEZ, No. 13-72340
Petitioner, Agency No. A095-013-211
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Edgar Gabriel Gonzalez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for cancellation of removal.
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law,
*
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).
Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc), and we deny
the petition for review.
The agency correctly concluded that Gonzalez’s California Health & Safety
Code § 11550(a) conviction remains a conviction for immigration purposes.
Gonzalez’s contention that the dismissal of his conviction under California Penal
Code § 1203.4 eliminates the immigration consequences is foreclosed by our
decision in Nunez-Reyes, 646 F.3d at 695 (“Being under the influence is not a
lesser crime than simple possession” and “is not a possession crime at all, and it is
thus qualitatively different from any federal conviction for which [Federal First
Offender Act] treatment would be available.”). Gonzalez’s contention that the
relevant portion of Nunez-Reyes should not apply retroactively is also foreclosed
by the decision itself. See id. at 695 & n.7.
It follows that Gonzalez failed to establish a due process violation. See Lata
v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge,
an alien must show error and prejudice).
PETITION FOR REVIEW DENIED.
2 13-72340