Fernando Guillen-Gutierrez v. Loretta E. Lynch

U.S. Court of Appeals for the Ninth Circuit
Fernando Guillen-Gutierrez v. Loretta E. Lynch, 624 F. App'x 585 (9th Cir. 2015)

Fernando Guillen-Gutierrez v. Loretta E. Lynch

Opinion

MEMORANDUM *

Guillen-Gutierrez appeals the Board of Immigration Appeals’ (BIA) decision that Guillen-Gutierrez is removable and not eligible for cancellation of removal. He also *586 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.

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, 129 S.Ct. 2294, 174 L.Ed.2d 22 (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, 43 Cal.Rptr.3d 911 (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-Gutier-rez’s argument that the administrative proceedings violated his due process rights because Guillen-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 Guil-len-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.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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),

Reference

Full Case Name
Fernando GUILLEN-GUTIERREZ, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent
Status
Unpublished