NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MIRIAM MONDRAGON-SANCHEZ, No. 06-70730
Petitioner, Agency No. A095-592-287
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2010**
San Francisco, California
Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***
*
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).
***
The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
Miriam Mondragon-Sanchez is a native and citizen of Mexico who petitions
for review of a final order of removal by the Board of Immigration Appeals (BIA).
We have jurisdiction under 8 U.S.C. § 1252, and deny the petition.
Mondragon-Sanchez admitted at her hearing that she was convicted of
violating California Health and Safety Code § 11366. This conviction renders
Mondragon-Sanchez ineligible for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b)(1)(C), as § 11366 is an offense related to a controlled substance that
renders her inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and therefore
ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).
She claims to be eligible for the “petty offense” exception in 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II). However, this exception applies only to crimes involving
moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I) – not to crimes involving a
controlled substance under § 1182(a)(2)(A)(i)(II) for which she was convicted.
See Cisneros-Perez v. Gonzales, 465 F.3d 386, 390 (9th Cir. 2006) (“[T]he petty
offense exception applies only to crimes of moral turpitude . . . .”).
Mondragon-Sanchez further argues that her § 11366 conviction does not
qualify as a predicate offense under Taylor v. United States, 495 U.S. 575 (1990),
but she failed to raise this issue before the immigration judge or BIA. Normally
failure to exhaust an issue deprives us of jurisdiction to consider it. See 8 U.S.C.
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§ 1252(d); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). Even were we to
do so here, the full range of conduct covered by § 11366 falls within the meaning
of § 1182(a)(2)(A)(i)(II). See Cisneros-Perez, 465 F.3d at 391. The federal statute
reaches any violation of state law “relating to a controlled substance.” 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). There is no question that Mondragon-Sanchez’s conviction
relates to a controlled substance. Thus, it qualifies.
Finally, Mondragon-Sanchez submits that she should not have been arrested
in the first place and suggests that § 11366 is overly broad to the extent that it
reaches someone such as she who “maintains” a place for unlawfully selling or
using a controlling substance. Cf. Kepilino v. Gonzales, 454 F.3d 1057, 1061-62
(9th Cir. 2006) (holding that “prostitution” in an Hawaii statute is broader than
“prostitution” in the federal statute). However, we look only to the fact of
conviction, not to the facts underlying the offense. Estrada-Espinoza v. Mukasey,
546 F.3d 1147, 1152 (9th Cir. 2008). As Mondragon-Sanchez admittedly was
convicted of an offense relating to a controlled substance, she is ineligible for
cancellation of removal.
PETITION FOR REVIEW DENIED.
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