Garcia v. Holder

NOT FOR PUBLICATION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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