NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FERNANDO GUILLEN-GUTIERREZ, No. 13-74320
Petitioner, Agency No. A092-235-199
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2015
San Francisco, California
Before: THOMAS, Chief Judge and IKUTA and HURWITZ, Circuit Judges.
Guillen-Gutierrez appeals the Board of Immigration Appeals’ (BIA)
decision that Guillen-Gutierrez is removable and not eligible for cancellation of
removal. He also appeals the BIA’s decision on the grounds that the administrative
proceedings violated his right to due process. We have jurisdiction under 8 U.S.C.
§ 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because § 11351 of the California Health & Safety Code is a divisible
statute, United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014), the
BIA correctly employed the modified categorical approach and considered both the
minute entry and plea colloquy in Guillen-Gutierrez’s case, see Nijhawan v.
Holder, 557 U.S. 29, 35 (2009). These documents establish that Guillen-Gutierrez
was convicted for possession for sale of cocaine under § 11351, which is an
“aggravated felony” drug trafficking offense.1 See Perez-Mejia v. Holder, 663
F.3d 403, 414 (9th Cir. 2011). The fact that Guillen-Gutierrez’s criminal
complaint charged him with a different offense does not alter this conclusion, in
light of California’s informal amendment doctrine. See People v. Sandoval, 140
Cal. App. 4th 111, 132–33 (2006). Because Guillen-Gutierrez was convicted of an
aggravated felony, the BIA did not err in determining that he was removable under
8 U.S.C. § 1227(a)(2)(A)(iii), and that he was not eligible for cancellation of
removal under 8 U.S.C. § 1229b(a). See Fuentes v. Lynch, 788 F.3d 1177, 1183
(9th Cir. 2015).
We lack jurisdiction over Guillen-Gutierrez’s argument that the
administrative proceedings violated his due process rights because Guillen-
1
Although the BIA opinion refers to Guillen-Gutierrez’s conviction for
“possession for sale of cocaine base,” this scrivener’s error is harmless. See Szalai
v. Holder, 572 F.3d 975, 982 (9th Cir. 2009).
2
Gutierrez did not administratively exhaust the claims. See 8 U.S.C. § 1252(d)(1);
Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir. 2014). Nor did Guillen-
Gutierrez administratively exhaust his claim that the Immigration Judge erred in
holding that he was removable for being convicted of a controlled substance
violation.
PETITION DENIED IN PART AND DISMISSED IN PART.
3