FILED NOT FOR PUBLICATION AUG 15 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ADRIAN GUERRA-ROSABAL, AKA No. 18-73195 Adrian Guerra Rosabal, AKA Adrian Guerra Rosabas, AKA Abrian Guerra- Agency No. A098-631-949 Rosabal, AKA Adrian Lazaro, AKA Adrian G. Rosabal, MEMORANDUM** Petitioner, v. MERRICK B. GARLAND,* Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 8, 2022*** San Francisco, California Before: RAWLINSON, BADE, and BRESS, Circuit Judges. * Merrick Garland is substituted for his predecessor, Matthew Whitaker, as Attorney General of the United States. Fed. R.App. P. 43(c)(2). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Petitioner Adrian Guerra-Rosabal (Guerra-Rosabal) is a native and citizen of Cuba. He seeks review of an order from the Board of Immigration Appeals (BIA) dismissing his appeal of an order of removal by an Immigration Judge (IJ). The IJ found that Guerra-Rosabal’s conviction under Arizona Revised Statute (A.R.S.) § 13-3405(A)(2) renders him removable under 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substance offense) and 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony). Although we lack jurisdiction to review final orders of removal against noncitizens who have committed offenses covered by 8 U.S.C. § 1227(a)(2)(B)(i) or § 1227(a)(2)(A)(iii), see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to determine whether this jurisdictional bar applies. See Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir. 2002). Because the bar applies here, we DISMISS the petition. 1. We review de novo whether an offense relates to a controlled substance, and whether an offense constitutes an aggravated felony. See Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013) (per curiam), as amended (controlled substance offense); Roman-Suaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014) (aggravated felony). 2 2. Because the parties concede that A.R.S. § 13-3405 is a divisible statute, we apply the modified categorical approach.1 See United States v. Marcia-Acosta, 780 F.3d 1244, 1250 (9th Cir. 2015) (applying the modified categorical approach when the petitioner did not challenge the statute’s divisibility in his opening brief). 3. The BIA did not err by concluding that Guerra-Rosabal is removable under § 1227(a)(2)(B)(i) because his conviction is “relat[ed] to a controlled substance.” 8 U.S.C. § 1227(a)(2)(B)(i). Guerra-Rosabal’s plea agreement reflects that he pled guilty to felony “Possession [o]f Marijuana [f]or Sale.” The information similarly charged Guerra-Rosabal with a Class 2 Felony for “knowingly . . . . possess[ing] for sale an amount of marijuana . . . in violation of A.R.S. . . . [§] 13-3405.”2 Through these documents, the government met its burden of proving that Guerra-Rosabal’s conviction related to a controlled substance. See Mielewczyk v. Holder, 575 F.3d 992, 995–96 (9th Cir. 2009) (“Because the charging document and the plea agreement establish that the crime involved heroin, the government has …
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