FILED
NOT FOR PUBLICATION JUL 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN MONTERO SOSA, No. 13-71985
Petitioner, Agency No. A092-587-975
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Adrian Montero Sosa, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s order of removal. We have jurisdiction under 8
U.S.C. § 1252. We review de novo question of law, Nunez-Reyes v. Holder, 646
*
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).
F.3d 684, 688 (9th Cir. 2011) (en banc), and we deny the petition for review.
The BIA correctly determined that Montero Sosa’s conviction under
California Health & Safety Code § 11550 constitutes a violation of a law “relating
to a controlled substance” that renders him ineligible for adjustment of status,
where the complaint read in conjunction with the minute order is sufficient to
establish that Montero Sosa pleaded guilty to a violation of § 11550 involving
phencyclidine. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1255(a)(2); United States v.
Torre-Jimenez, 771 F.3d 1163, 1168 (9th Cir. 2014) (where minute order specifies
defendant pleaded guilty to specific count in complaint, court may consider facts
alleged in complaint). The BIA did not err in rejecting Montero Sosa’s contention
that his difficulty in obtaining possible additional conviction documents renders
the record of conviction inconclusive.
The subsequent expungement under California Penal Code § 1203.4 of
Montero Sosa’s conviction does not erase its effect for immigration purposes. See
Nunez-Reyes, 646 F.3d at 695 (Federal First Offender Act exception not available
for “under the influence” convictions); Ramirez-Castro v. INS, 287 F.3d 1172,
1175 (9th Cir. 2002) (expungement of a criminal conviction under § 1203.4
generally does not remove its immigration consequences). There is no factual
basis in the record to distinguish Montero Sosa’s situation from the one presented
2 13-71985
in Nunez-Reyes for purposes of applying the Nunez-Reyes holding to Montero
Sosa. See Nunez-Reyes, 646 F.3d at 695 n.7 (applying Nunez-Reyes retroactively
where petitioner pleaded guilty years before Rice v. Holder, 597 F.3d 952 (9th Cir.
2010)).
Montero Sosa’s motion to strike respondent’s brief is denied.
Montero Sosa’s motion to remand, based on new evidence that his
conviction has been vacated under California Penal Code § 1016.5, is also denied.
See 8 U.S.C. § 1252(b)(4)(A) (the court’s review is limited to the administrative
record); Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (new evidence
may be added to the record through a motion to reopen with the agency).
PETITION FOR REVIEW DENIED.
3 13-71985