                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 12 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ALBERTO GONZALEZ-MENDEZ,                         No. 09-72484

              Petitioner,                        Agency No. A092-204-905

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



ALBERTO GONZALEZ-MENDEZ,                         No. 10-70921

              Petitioner,                        Agency No. A092-204-905

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted February 7, 2011
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

      Alberto Gonzalez-Mendez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision finding him removable1 on the basis of

a controlled substance conviction, as well as the BIA’s order denying his

subsequent motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We

review de novo questions of law, Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909

(9th Cir. 2004), and review for abuse of discretion the denial of a motion to reopen,

Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petitions for

review.

      Gonzalez-Mendez first contends that the BIA failed to address his argument

that the IJ erred in denying his pre-hearing motion to close the record. Although

Gonzalez-Mendez properly raised this issue in his appeal to the BIA, the BIA did

not address it. We conclude, however, that any error on the part of the BIA was

harmless. Notably, Gonzalez-Mendez does not argue that the government’s

alleged delay in submitting evidence of his conviction record to the IJ prejudiced

      1
        Although Gonzalez-Mendez challenged the IJ’s discretionary denial of his
application for cancellation of removal before the BIA, he did not raise that issue
in his opening brief before this court. By failing to do so, he has waived the issue.
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ( “[O]n appeal, arguments not
raised by a party in its opening brief are deemed waived.”).

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his ability to respond to such evidence. See Larita-Martinez v. INS, 220 F.3d 1092,

1095 (9th Cir. 2000) (holding that an error that does not prejudice a petitioner’s

case is a harmless error). Moreover, under 8 C.F.R. § 1003.10(b), immigration

judges have considerable discretion in managing and presiding over removal and

other formal hearings. Here, the IJ acted within his discretion in denying

Gonzalez-Mendez’s motion.

      Gonzalez-Mendez also contends that the BIA erred in failing to address his

argument that the state court conviction records were not properly certified. Again,

we conclude that any such error was harmless. Pursuant to 8 C.F.R. § 1003.41(b),

evidence of a criminal conviction includes “[a]ny document or record of the types

specified in paragraph (a) of this section may be submitted if it complies with the

requirement of § 287.6(a) of this chapter, or a copy of any such document or record

may be submitted if it is attested in writing by an immigration officer to be a true

and correct copy of the original.” 8 C.F.R. § 1003.41(b) (2009). Here, the

documents submitted by the Department of Homeland Security were certified by

an Assistant Chief Counsel as “true and correct” copies. Further, at the end of the

photocopy of the Register of Actions there is a certification stamp from the Clerk

of the Superior Court. See 8 C.F.R. § 287.6(a). Apart from arguing that the

government did not comply with § 1003.41(b), Gonzalez-Mendez does not contend


                                          3
that the conviction records are not what they purport to be. Although the BIA

should have addressed this issue, its failure to do so was harmless.

      Gonzalez-Mendez next argues that the BIA erred in concluding that he was

removable because the government did not prove that his no contest plea to a

violation of California Health and Safety Code § 11350(a) was a conviction for a

controlled substance offense. We disagree. To determine whether a conviction

under § 11350(a) qualifies as a controlled substance offense within the meaning of

8 U.S.C. § 1227(a)(2)(B)(i), we apply the modified categorical approach first

announced in Taylor v. United States, 495 U.S. 575 (1990). See Alanis-Alvarado

v. Holder, 558 F.3d 833, 836 (9th Cir. 2009). Contrary to Gonzalez-Mendez’s

contention, the conviction records presented at his hearing sufficiently established

that he was convicted of possession of cocaine, a federally defined controlled

substance. Those records included among others, copies of the felony information,

the clerk’s minutes of the sentencing hearing, and the register of actions reflecting

the record of proceedings. See Shepard v. United States, 544 U.S. 13, 16, (2005)

(noting that a charging document may be used for modified categorical analysis);

see also United States v. Strickland, 601 F.3d 963, 968–69 (9th Cir. 2010) (en

banc) (holding that a docket sheet may be considered when applying the modified

categorical approach); United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.


                                          4
2008) (en banc) (holding that a clerk’s minute order may be considered in applying

the modified categorical approach).

      The Register of Actions and the minutes of the sentencing hearing establish

that Gonzalez-Mendez entered a plea of nolo contendere to Count I of the

Information, a violation of California Health & Safety Code § 11350(a). Further,

Count I of the Information affirmatively identifies the drug of possession as

cocaine. Under California law, a plea of nolo contendere has the same effect as a

guilty plea and constitutes a finding of guilt. Cal. Pen. Code § 1016. And with a

guilty plea, the California courts have concluded that such a plea admits all of the

material allegations contained in the information or charging document. People v.

Mendias, 21 Cal. Rptr. 2d 159, 164 (Ct. App. 1993). Thus, Gonzalez-Mendez’s

nolo contendere plea to a violation of California Health & Safety Code § 11350(a)

constituted an admission to all of the material allegations, including the allegation

regarding cocaine. This case is therefore distinguishable from United States v.

Vidal, 504 F.3d 1072, 1086–89 (9th Cir. 2007) (en banc) (holding that where the

statute of conviction is overly inclusive and the charging document merely parrots

the statutory language but does not narrow the charge to generic limits, defendant’s

own admissions or accepted findings of fact are required in order to confirm the

factual basis for defendant’s plea). Accordingly, the BIA correctly concluded that


                                          5
Gonzalez-Mendez’s prior conviction of possession of cocaine was a controlled

substance offense and that he was therefore removable.

      Finally, Gonzalez-Mendez contends that the BIA erred in failing to grant his

motion to reopen in light of the additional evidence of his drug and alcohol

rehabilitation. Again, we disagree, and reject Gonzalez-Mendez’s contention that

the BIA abused its discretion in denying his motion to reopen. The BIA properly

considered the additional evidence regarding rehabilitation and acted within its

broad discretion in determining that the evidence was insufficient to warrant

reopening. The BIA’s decision was neither “arbitrary, irrational [n]or contrary to

law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).

      The BIA therefore did not err in concluding that Gonzalez-Mendez was

removable, nor abuse its discretion in denying his motion to reopen.

THE PETITIONS FOR REVIEW IN 09-72484 and 10-70921 ARE DENIED.




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