                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           FEB 11 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HECTOR ESJANI BENITES PARDO,                     No. 12-74165

              Petitioner,                        Agency No. A095-670-276

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted February 9, 2016**
                               Pasadena, California

Before: McKEOWN and IKUTA, Circuit Judges and PRATT,*** Senior District
Judge.

      Hector Benites Pardo appeals the Board of Immigration Appeals’ (BIA)

decision to deny his applications for asylum, withholding of removal, adjustment

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Robert W. Pratt, Senior District Judge for the U.S.
District Court for the Southern District of Iowa, sitting by designation.
of status, protection under the Convention Against Torture (CAT), and voluntary

departure. We have jurisdiction under 8 U.S.C. § 1252.

      The judicially noticeable documents established that Benites Pardo was

convicted under section 11378 of the California Health & Safety Code for

possession for sale of methamphetamine. The BIA’s reference to section 11379(a),

was a scrivener’s error and harmless. Cf. Zixiang Li v. Kerry, 710 F.3d 995, 999

n.3 (9th Cir. 2013). The BIA was not required to determine whether Benites

Pardo’s offense involved a “usable amount” of methamphetamine, and the BIA did

not otherwise err in determining that Benites Pardo’s state conviction was a felony

under the Controlled Substances Act. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C); 18

U.S.C. § 3559. Accordingly, the BIA did not err in concluding that Benites Pardo

was convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(B), 18

U.S.C. § 924(c); see also United States v. Torre-Jimenez, 771 F.3d 1163, 1165–66

(9th Cir. 2014), and therefore was statutorily ineligible for asylum, adjustment of

status, and voluntary departure, see 8 U.S.C. §§ 1158(b)(2)(B)(i), 1229c(a)(1),

1255(i)(2)(A).

      The BIA did not err in affirming the Immigration Judge’s (IJ) denial of

Benites Pardo’s claim for withholding of removal. The IJ’s decision that Benites

Pardo was not a member of a particular social group is supported by substantial


                                          2
evidence. See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014); see

also Ochoa v. Gonzales, 406 F.3d 1166, 1169 (9th Cir. 2005). Construing Benites

Pardo’s claim as a request for deferral of removal under 8 C.F.R. § 1208.17, there

was substantial evidence to support the BIA’s conclusion that he was ineligible for

relief because Benites Pardo did not meet his burden of proving that any torture

would be inflicted with the acquiescence or willful blindness of the government of

Mexico. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006).

      Benites Pardo presented no evidence to overcome the presumption that the

BIA considered the relevant evidence and findings of the IJ, see Larita-Martinez v.

INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000), so his argument that the BIA

violated his right to due process fails.

PETITION DENIED.




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