NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL FERNANDEZ-MANZANO, No. 17-70161
Petitioner, Agency No. A090-514-389
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 3, 2020**
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and CHRISTENSEN,***
District Judge.
Daniel Fernandez-Manzano, a native and citizen of Mexico, petitions for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel vacated submission of this case pending resolution of
United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020). The panel
hereby re-submits this case as of the date this memorandum is filed.
***
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
review of a Board of Immigration Appeals (BIA) removal order based on his
California conviction for possessing methamphetamine for sale. We have
jurisdiction under 8 U.S.C. § 1252 and, reviewing the BIA’s “legal conclusions de
novo and its factual findings for substantial evidence,” Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (citation omitted), we deny the
petition.
1. Fernandez-Manzano challenges the BIA’s determination that his
conviction for possessing methamphetamine for sale under California Health and
Safety Code § 11378 disqualified him from asylum and cancellation of removal.
He argues that, for purposes of the “categorical approach,” the state law is
overbroad since it criminalizes the possession for sale of methamphetamine’s
geometric isomers, whereas federal law does not. Assuming that we can consider
this argument, it is foreclosed by United States v. Rodriguez-Gamboa, 972 F.3d
1148 (9th Cir. 2020). There we explained that, because methamphetamine has no
geometric isomers, it was impossible for a defendant to face criminal liability for
their possession. Id. at 1153-54. Given that “the purpose of the categorical
approach is to ascertain whether the defendant was necessarily convicted in state
court of conduct that would also violate the relevant federal law,” we held that the
statute was not actually overbroad. Id. at 1152-54.
2. Fernandez-Manzano also contends that the U.S. Department of Homeland
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Security failed to establish his removability based on his § 11378 conviction by
“clear and convincing evidence.” See 8 U.S.C. § 1229a(c)(3)(A). He argues that
the agency’s introduction of his conviction records—the complaint, sentencing
memorandum, and plea agreement—was untimely and that the sentencing
memorandum was not signed by a judicial officer. These arguments are
unavailing. The immigration judge (IJ) has wide latitude to control filing
deadlines, see 8 C.F.R. § 1003.31(c), and we are unaware of any requirement that a
judicial officer must sign otherwise-certified records, see id. § 1003.41. Taken
together, the documents provide substantial evidence for the BIA’s conclusion that
Fernandez-Manzano had, in fact, been convicted of possessing methamphetamine
for sale under § 11378.
3. Finally, Fernandez-Manzano faults the BIA for affirming the IJ’s finding
that he was sufficiently competent to participate in his removal proceedings. The
IJ held a competency hearing and found that, although Fernandez-Manzano
suffered from a diminished mental capacity, he was able to answer questions and
understood the nature and purpose of the proceedings. Furthermore, the IJ
implemented several procedural safeguards, including re-serving the Notice to
Appear on Fernandez-Manzano’s wife and counsel, allowing his wife to sit with
him during the hearing, and permitting his counsel to ask him leading questions.
The IJ’s approach comported with agency procedure, see Matter of M-A-M-, 25 I.
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& N. Dec. 474 (BIA 2011), and Fernandez-Manzano has not shown that it
inadequately protected his due process rights, see Salgado v. Sessions, 889 F.3d
982, 988-89 (9th Cir. 2018). We therefore conclude that the BIA did not err in
ordering him removed.1
PETITION DENIED.
1
The BIA denied Fernandez-Manzano withholding of removal because he
had failed to show a likelihood of persecution on account of a protected ground.
Fernandez-Manzano does not challenge this determination on appeal and has
therefore waived the issue. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (“We review only issues which are argued specifically and distinctly in a
party’s opening brief.”).
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