                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 04 2013

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

RODOLFO ADALBERTO CARDONA,                       No. 09-72416

              Petitioner,                        Agency No. A092-435-967

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

              Respondent.


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

                            Submitted February 7, 2013**
                               Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

       Petitioner Rodolfo Adalberto Cardona appeals the Board of Immigration

Appeals decision dismissing his appeal. The BIA concluded that Cardona was

ineligible for cancellation of removal because he failed to demonstrate that his



        *
             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).
conviction of transporting more than 28.5 grams of marijuana in violation of

California Health and Safety Code § 11360(a) was not a conviction of an

aggravated felony. We deny his petition for review.

      Applying the modified categorical approach, we conclude that Cardona’s

conviction qualified as an aggravated felony for immigration purposes because it

involved “illicit trafficking in a controlled substance.” 8 U.S.C. § 1101(a)(43)(B);

see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) (“A

state drug offense is an ‘aggravated felony’ for immigration purposes only if it

would be punishable as a felony under federal drug laws, or if it contains a

trafficking element.”). It was Cardona’s burden to demonstrate his eligibility for

cancellation of removal. See Young v. Holder, 697 F.3d 976, 988–90 (9th Cir.

2012) (en banc). Nothing in his record of conviction, however, demonstrated that

the facts on which his conviction necessarily rested did not constitute illicit

trafficking of marijuana. See id. at 989 (“Because the burden of proof rests on the

alien, the alien must establish that he or she was not convicted of such a crime.”);

Aguilar-Turcois v. Holder, 691 F.3d 1025, 1032 (9th Cir. 2012) (“The modified

categorical approach requires that we determine, in light of the facts in the

judicially noticeable documents, . . . what facts the conviction necessarily rested

on . . . .” (internal quotation marks omitted)).


                                           2
      To the contrary, Cardona admitted in his plea agreement – a judicially

noticeable document, see id. – that he transported marijuana “not for personal use,”

indicating that the marijuana was for commercial use. See Rendon v. Mukasey, 520

F.3d 967, 975 (9th Cir. 2008) (“The Supreme Court has stated that ‘ordinarily

‘trafficking’ means some sort of commercial dealing.’” (quoting Lopez v.

Gonzalez, 549 U.S. 47, 53 (2006))). Although that fact may not conclusively

demonstrate trafficking, “an inconclusive record . . . is insufficient to satisfy [an]

alien’s burden of proof.” Young, 697 F.3d at 989.

      PETITION DENIED.




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