NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANTONIO VAZQUEZ, No. 09-72489 Petitioner, Agency No. A034-672-981 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 16, 2014 Submission Vacated April 11, 2018 Resubmitted September 27, 2021 Pasadena, California Before: NGUYEN and BENNETT, Circuit Judges, and TIGAR,** District Judge. Antonio Vazquez, a Mexican citizen, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) order finding him removable and ineligible for cancellation of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jon S. Tigar, United States District Judge for the Northern District of California, sitting by designation. removal. We have jurisdiction under 8 U.S.C. § 1252. We review questions of law de novo, Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014), and deny Vazquez’s petition. 1. The IJ properly found that Vazquez was removable under Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II) as an alien who was convicted of an offense relating to a controlled substance. In 1998, Vazquez was convicted of unlawfully transporting, selling, or offering to transport or sell, cocaine base, a controlled substance, in violation of California Health & Safety Code § 11352(a) (“H&S § 11352(a)”).1 2. The IJ properly found Vazquez ineligible for cancellation of removal pursuant to INA § 240A(a)(3) because he was convicted of an aggravated felony. “The INA expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense.” Pereida v. Wilkinson, 141 S. Ct. 754, 758 (2021). The statute under which Vazquez was convicted, H&S § 11352(a), is divisible between solicitation, which is not an aggravated felony, and sale, which is 1 Vazquez does not challenge the finding that his conviction involved a controlled substance. Instead, he argues that the conviction does not qualify as an aggravated felony, but this argument is not relevant to his inadmissibly under INA § 212(a)(2)(A)(i)(II). 2 an aggravated felony. See United States v. Martinez-Lopez, 864 F.3d 1034, 1037 (9th Cir. 2017) (en banc). Vazquez concedes that under the modified categorical approach, the IJ may examine certain documents to determine whether he was convicted of solicitation or sale. Pereida, 141 S. Ct. at 764-65 (citing Mathis v. United States, 136 S. Ct. 2243, 2256 (2016), and Descamps v. United States, 570 U.S. 254, 263 (2013)). Here, the IJ relied on the transcript of the Probation and Sentence proceedings, during which Vazquez’s counsel stated in open court that the nature of Vazquez’s offense was a “sale of one rock at a minimal amount, a $20 rock,” to conclude that Vazquez was convicted of actual sale of cocaine, an aggravated felony rendering him ineligible …
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