NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANDRES GARCIA-RUESGA, aka No. 07-73531
Andres Ruesga,
Agency No. A035-705-787
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2010**
San Francisco, California
Before: HUG and BYBEE, Circuit Judges, and GWIN, *** District Judge.
Petitioner Andres Garcia-Ruesga petitions for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing his appeal of an Immigration
*
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 James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Judge’s decision ordering him removed to Mexico. He argues that his conviction
for “sale/transportation/offer to sell controlled substance” in violation of California
Health and Safety Code Section 11352(a) does not render him removable under 8
U.S.C. § 1227(a)(2)(B)(i). We hold that the BIA correctly determined that Garcia-
Ruesga committed a removable offense, and dismiss his petition for review for
lack of jurisdiction.
An alien is removable if, after admission into the United States, he is
“convicted of a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State . . . relating to a controlled substance (as defined in Section
802 of Title 21) . . . .” 8 U.S.C. § 1227(a)(2)(B)(i). In 2004, Garcia-Ruesga was
convicted under California Health and Safety Code Section 11352(a), which
punishes a person “who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this state, sell,
furnish, administer or give away, or attempts to import into this state or transport
[ ] any controlled substance specified in [various provisions].” CAL. HEALTH &
SAFETY CODE § 11352(a) (emphasis added). In order to determine whether
Garcia-Ruesga’s California conviction qualifies under this removal statute, we use
“the analytical model constructed by the Supreme Court in Taylor v. United States,
495 U.S. 575 [(1990)].” Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009).
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Under the categorical approach, California Health and Safety Code Section
11352(a) does not meet the requirements for removability under 8 U.S.C.
§ 1227(a)(2)(B)(i) because the California statute includes controlled substances not
covered by the federal Controlled Substances Act. See id. at 995. However, under
the modified categorical approach, the indictment from Garcia-Ruesga’s California
case clearly demonstrates that the controlled substance involved in Garcia-
Ruesga’s crime was cocaine, which is covered by the Controlled Substances Act.
See 21 U.S.C. §§ 802(6), 812 Schedule II(a)(4).
Garcia-Ruesga does not dispute that he was convicted of an offense
involving a federally controlled substance, and argues only that because the
California statute covers solicitation to commit a controlled substance violation,
see CAL. HEALTH & SAFETY CODE § 11352(a), and because the conviction
documents do not clarify whether he was convicted of solicitation, the government
has not established that Garcia-Ruesga was convicted of a controlled substance
offense as defined in 8 U.S.C. § 1227(a)(2)(B)(i). He is incorrect. We explicitly
held in Mielewczyk that a conviction under the exact California statute at issue in
Garcia-Ruesga’s case renders an alien removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) because the California statute is not a generic solicitation statute
but rather a statute that, “by its own terms[,] is a state law ‘relating to a controlled
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substance.’” 575 F.3d at 993; cf. Coronado-Durazo v. INS, 123 F.3d 1322, 1324
(9th Cir. 1997) (holding that petitioner’s state conviction under a generic
solicitation statute did not render him removable under 8 U.S.C.
§ 1227(a)(2)(B)(i)).
Thus, under Mielewczyk, Garcia-Ruesga’s California offense qualifies as a
violation of a law “relating to a controlled substance” under the modified
categorical approach, making Garcia-Ruesga removable under 8 U.S.C.
§ 1227(a)(2)(B)(i). And because Garcia-Ruesga has not raised any other
constitutional claims or questions of law, see 8 U.S.C. § 1252(a)(2)(D), his
removability under 8 U.S.C. § 1227(a)(2)(B)(i) strips this court of jurisdiction over
his petition for review, see 8 U.S.C. § 1252(a)(2)(C); Luu-Le v. INS, 224 F.3d 911,
914, 916 (9th Cir. 2000).
DISMISSED.
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