NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 06 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
OSCAR MANUEL SANTANA, No. 11-73033
Petitioner, Agency No. A019-988-422
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 13, 2014
San Francisco, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and GARBIS, Senior
District Judge.**
Oscar Santana (Santana), a native and citizen of Mexico, petitions for review
of an order of the Board of Immigration Appeals (BIA) holding that Santana was
removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
aggravated felony (illicit trafficking in a controlled substance), and pursuant to 8
U.S.C. § 1227(a)(2)(B)(I), as an alien convicted of violating a law related to a
controlled substance.
Santana challenges the immigration judge’s (IJ’s) amendment to the notice to
appear to include the words “on or about” a certain date, asserting that the amendment
violated 8 C.F.R. §§ 1003.30 and 1240.10(e). However, we will not grant relief on
petitioner’s “allegations that an agency has violated its own regulation . . . [unless the
petitioner can] show that he was prejudiced by the agency’s mistake . . . .” Kohli v.
Gonzales, 473 F.3d 1061, 1066 (9th Cir. 2007) (citation and internal quotation marks
omitted). Because Santana “has not shown, and on this record cannot show, that the
alleged defect obscured the charges against [him] or obstructed [his] ability to respond
to the charges . . . the alleged defect was not prejudicial.” Id. at 1068-69.
Santana also argues that the record of conviction was not included in the
administrative record. This argument is belied by the record.
The charges of removability required the Department of Homeland Security
(DHS) only to prove that Santana was convicted after his admission to the United
States. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). The conviction records
submitted by DHS included Santana’s Guilty Plea to and Judgment of Conviction for
knowingly using a telephone to facilitate a conspiracy to possess and distribute
Page 2 of 3
methamphetamine, in violation of 21 U.S.C. § 843(b). These documents adequately
established Santana’s conviction of a law relating to a controlled substance that
occurred well after his admission. See 8 U.S.C. § 1229a(c)(3)(B). Moreover, a
conviction for violating 21 U.S.C. § 843 is categorically an aggravated felony. See
Daas v. Holder, 620 F.3d 1050, 1054 (9th Cir. 2010).
Finally, Santana challenges the BIA’s conclusion that he failed to meet the
requirements for termination of removal proceedings under 8 C.F.R. § 1239.2(f). An
alien must secure an affirmative statement from the DHS confirming the alien’s prima
facie eligibility to naturalize before the IJ may terminate the proceedings. See In re
Hidalgo, 24 I&N Dec. 103, 105-06 (BIA 2007); see also Hernandez de Anderson v.
Gonzales, 497 F.3d 927, 934 (9th Cir. 2007). Santana contends that the 1996 order
administratively closing his naturalization application is an affirmative statement of
his prima facie eligibility. We disagree. The regulation requires an affirmative
statement from the DHS. See Hernandez de Anderson, 897 F.3d at 934. Nothing in
the 1996 order approximates the required affirmative statement.
PETITION DENIED.
Page 3 of 3