                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 11 2012

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



                            FOR THE NINTH CIRCUIT


OVSEP ALEKSANOVICH POLADYAN,                    No. 10-72856

             Petitioner,                        BIA A071-046-044

  v.

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

             Respondent .



                  Appeal from the Board of Immigration Appeals
                   Argued and Submitted November 28, 2011
                            San Francisco, California

Before: THOMAS and CLIFTON, Circuit Judges, and PRO,** District Judge.



       Petitioner Ovsep Aleksanovich Poladyan (“Poladyan”), a native of Armenia,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming

the Immigration Judge’s (“IJ”) decision denying Poladyan asylum under the


       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        The Honorable Philip M. Pro, United States District Judge for the District
       **
of Nevada, sitting by designation.
Immigration and Nationality Act (“INA”), withholding of removal under the INA,

and relief under the Convention Against Torture (“CAT”). We have jurisdiction

pursuant to 8 U.S.C. § 1252. An exception to the jurisdiction stripping provision

of § 1252(a)(2)(C) allows us to determine whether Poladyan was convicted of an

aggravated felony. Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1064-65 (9th Cir.

2003). The jurisdiction stripping provision also does not apply to our review of

Poladyan's claims of withholding of removal and relief under CAT because the

BIA denied these claims on the merits. Bromfield v. Mukasey, 543 F.3d 1071,

1075 (9th Cir. 2008). We deny the petition for review.

      The BIA did not err in concluding that the conviction record establishes that

Poladyan was convicted of possession of methamphetamine for sale, an aggravated

felony which renders him ineligible for asylum. 8 U.S.C. § 1158(b)(2)(A)(ii),

(b)(2)(B)(i). The BIA properly considered the felony complaint, which shows that

Poladyan was charged with possession of methamphetamine for sale, and the

minute order, which indicates that Poladyan pled nolo contendere to the same

charge described in the felony complaint. United States v. Snellenberger, 548 F.3d

699, 701-02 (9th Cir. 2008) (en banc) (per curiam). We decline to consider

Poladyan’s arguments, made for the first time at oral argument, that under the

modified categorical approach (1) a nolo contendere plea under California law


                                         2
should be treated differently from a guilty plea and (2) Poladyan’s pleading stage

admissions and concession are not binding. Further, we deny Poladyan’s Motion

to File a Supplemental Brief.

      Further, substantial evidence supports the BIA’s conclusion that Poladyan

did not qualify for withholding of removal because he failed to prove a clear

probability of persecution on account of his religion. Tamang v. Holder, 598 F.3d

1083, 1091 (9th Cir. 2010); see also 8 C.F.R. § 1208.16(b).

      Finally, the BIA did not err in denying Poladyan relief under the CAT.

Substantial evidence supports the BIA’s denial because Poladyan failed to establish

that more likely than not he would be tortured if removed to Armenia.    8 C.F.R. §

1208.16(c)(2); Huang v. Ashcroft, 390 F.3d 1118, 1122 (9th Cir. 2004).

      We lack jurisdiction to hear Poladyan’s due process claim. Vargas v. INS,

831 F.2d 906, 907-08 (9th Cir. 1987).



PETITION FOR REVIEW DENIED.




                                         3
