Lauro Zuniga-Diaz v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAURO GERARDO ZUNIGA-DIAZ, No. 10-71904
a.k.a. Lauro Gerardo Dias, a.k.a Lauro
Gerardo Zuniga, 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
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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 Zuniga-
Diaz 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.
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