NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO JAVIER LUNA, No. 17-70072 Petitioner, Agency No. A030-458-275 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 20, 2021** Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges. Francisco Javier Luna, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision finding him removable. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, * 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). including whether a state statutory crime qualifies as an aggravated felony, Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020), and due process claims in immigration proceedings, Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review. The BIA did not err in concluding that Luna’s conviction under Arizona Revised Statute (“Ariz. Rev. Stats.”) § 13-3405 constitutes an aggravated felony where the judicially noticeable documents unambiguously establish that his conviction was for attempted transportation of marijuana for sale. See 8 U.S.C. § 1101(a)(43)(B), (U); Altayar v. Barr, 947 F.3d 544, 549 (9th Cir. 2020) (“When, as here, the conviction is based on a guilty plea, we may examine the . . . transcript of plea colloquy[] and any explicit factual finding by the trial judge to which the defendant assented.” (internal citation and quotation marks omitted)). Arizona’s definition of attempt at Ariz. Rev. Stats. § 13-1001(A) is coextensive with the federal definition. See United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008), abrogated on other grounds as recognized by United States v. Molinar, 881 F.3d 1064, 1068 (9th Cir. 2017), implied overruling recognized by Ward v. United States, 936 F.3d 914, 918-19 (9th Cir. 2019). And the BIA did not err in concluding that Ariz. Rev. Stats. § 13-3405(A)(4) is divisible. See Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020) (“A divisible statute is one that lists elements in the alternative—thereby creating multiple, distinct crimes within a single 2 17-70072 statute.”); Rosas-Castaneda v. Holder, 655 F.3d 875, 885-86 (9th Cir. 2011) (applying the modified categorial approach to Ariz. Rev. Stats. § 13-3405(A)(4) because the “full range of conduct encompassed by the statute does not constitute an aggravated felony” (internal citation and quotation marks omitted)), overruled on other grounds by Young v. Holder, 697 F.3d 976, 979-80 (9th Cir. 2012) (en banc). Luna’s contention that his removal violated his right to due process and constituted cruel and unusual punishment fails. See Lata v. INS, 204 F.3d 1241, …
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