FILED
NOT FOR PUBLICATION FEB 02 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIO ORTEGA, No. 08-71045
Petitioner, Agency No. A092-329-282
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 17, 2012 **
San Francisco, California
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Mario Ortega petitions for review of the Board of Immigration Appeals’
(BIA) final order finding Ortega ineligible for cancellation of removal under
§ 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a), as an alien
*
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).
convicted of an aggravated felony, specifically his 1992 conviction for possession
of cocaine base for sale in violation of California Health and Safety Code
§ 11351.5. Because the parties are familiar with the factual and procedural history
of this case, we repeat only those facts necessary to resolve the issues raised on
appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny Ortega’s
petition for review.
Ortega first argues that the BIA erred in relying on the document entitled,
“Disposition of Arrest and Court Action,” to establish that Ortega was convicted of
possession of cocaine base for sale. In relying on the Disposition of Arrest and
Court Action, the BIA cited to 8 C.F.R. § 1003.41(d), which provides that in a
proceeding before an immigration judge, “[a]ny other evidence that reasonably
indicates the existence of a criminal conviction may be admissible as evidence
thereof.” The Disposition of Arrest and Court Action reasonably indicated that
Ortega was convicted of violating § 11351.5, and Ortega did not present any
evidence contradicting or discrediting this evidence. See Rojas-Garcia v. Ashcroft,
339 F.3d 814, 823 (9th Cir. 2003) (holding that the sole test for admission of
evidence in immigration proceedings is whether the evidence is probative and its
admission is fundamentally fair). Thus, it was not error for the BIA to consider the
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Disposition of Arrest and Court Action as evidence of Ortega’s conviction for
possession of cocaine base for sale.
The cases cited by Ortega do not compel a contrary result; instead, they
establish that certain documents may be insufficient to demonstrate that a
particular conviction constitutes an aggravated felony when using the “modified
categorical” approach. See Penuliar v. Aschroft, 435 F.3d 961, 968-69 (9th Cir.
2006); Martinez-Perez v. Ashcroft, 417 F.3d 1022, 1028-29 (9th Cir. 2005); Li v.
Ashcroft, 389 F.3d 892, 898 (9th Cir. 2004). A modified categorical analysis is not
required here because the full range of conduct covered by § 11351.5 falls within
the meaning of an aggravated felony. See United States v. Morales-Perez, 467
F.3d 1219, 1223 (9th Cir. 2006) (holding that the federal crime of attempted
possession of a controlled substance with the intent to sell encompasses the
California-defined crime of purchasing cocaine base for purposes of sale). No
additional documentation was required to establish that Ortega’s conviction
constituted an aggravated felony.
Ortega’s second challenge—that relief under 8 U.S.C. § 1182(c) should
extend to his 2004 offense, which was committed after the passage of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110
Stat. 3009-546—is belied by the plain language of the statute. See INS v. St. Cyr,
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533 U.S. 289, 297 (2001) (IIRIRA, “inter alia, repealed § 212(c), see § 304(b), 110
Stat. 3009-597, and replaced it with a new section that gives the Attorney General
the authority to cancel removal for a narrow class of inadmissible or deportable
aliens, see id., at 3009-594 (creating 8 U.S.C. § 1229b (1994 ed., Supp. V))”).
Even if Ortega could have obtained a § 212(c) waiver for his 1992 conviction, his
2004 conviction post-dates IIRIRA, thus making him ineligible for § 212(c) relief.
Consequently, the BIA did not err when it concluded that Ortega remained
removable as charged based upon his 1992 and 2004 controlled substance
convictions.
PETITION DENIED.
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