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Hernandez-Aguilar v. Holder

January 12, 2010

JUAN ROLANDO HERNANDEZ-AGUILAR, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-703-483.

The opinion of the court was delivered by: W. Fletcher, Circuit Judge

FOR PUBLICATION

Submitted October 6, 2009*fn1 -- Pasadena, California.

Filed November 25, 2009; Amended January 12, 2010

Before: William A. Fletcher and Richard R. Clifton, Circuit Judges, and Louis H. Pollak,*fn2 District Judge.

OPINION

Juan Rolando Hernandez-Aguilar petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") final order of removal. The BIA held that Hernandez-Aguilar's conviction under California Health and Safety Code § 11379(a) qualifies as a basis for removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), which makes removable any alien "convicted of a violation of (or a conspiracy or attempt to violate) any law . . . of a State . . . relating to a controlled substance (as defined in section 802 of title 21)." We deny the petition for review.

I. Background

Hernandez-Aguilar is a native and citizen of Mexico. He was born in Tijuana, Mexico in 1972 and entered the United States as an infant in 1973. Hernandez-Aguilar was granted temporary resident status, but that status was revoked in May of 1997.

Beginning in 1997, the Immigration Naturalization Service*fn3 ("INS") sought to remove Hernandez-Aguilar, claiming that his prior conviction under California law makes him removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (violation of law relating to a controlled substance) and 8 U.S.C. § 1182(a)(2)(C) (known or believed controlled substance trafficker).

The INS provided evidence that Hernandez-Aguilar was previously convicted in California state court for violating California Health and Safety Code § 11379(a), which states in relevant part:

[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance . . . shall be punished by imprisonment in the state prison for a period of two, three, or four years.

The evidence the government provided to the IJ consisted of a Felony Complaint and a Minute Order of the Superior Court for Ventura County. According to the Minute Order, Hernandez-Aguilar pled guilty on November 3, 1995 to one of two charged counts. The count to which he pled guilty charged that:

On or about August 23, 1995 . . . the crime of SALE OF A CONTROLLED SUBSTANCE, in violation of HEALTH AND SAFETY CODE SECTION 11379(a), a Felony, was committed by JOHN ROL- LAND HERNANDEZ, who did willfully and unlawfully ...


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