                                                                            FILED
                             NOT FOR PUBLICATION                            AUG 04 2015

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



                             FOR THE NINTH CIRCUIT


LORENZO SANCHEZ-NINO,                            No. 13-71814

               Petitioner,                       Agency No. A090-090-672

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

               Respondent.


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

                             Submitted July 21, 2015**

Before:        CANBY, BEA, and MURGUIA, Circuit Judges.

      Lorenzo Sanchez-Nino, 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 decision denying his motion to terminate proceedings and

finding him removable. We have jurisdiction under 8 U.S.C. § 1252. We review


          *
             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).
de novo questions of law. Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir.

2014). We deny in part and grant in part, and remand.

       Sanchez-Nino’s contention that California Health & Safety Code § 11378 is

indivisible and categorically overbroad, which precludes application of the

modified categorical approach, is foreclosed by our case law establishing that

§ 11378 and similarly structured statutes are divisible within the meaning of

Descamps v. United States, 133 S.Ct. 2276 (2013), and therefore subject to the

modified categorical approach. See Padilla-Martinez v. Holder, 770 F.3d 825, 831

n.3 (9th Cir. 2014) (concluding Cal. Health & Safety Code § 11378 is divisible);

see also United States v. Torre-Jimenez, 771 F.3d 1163, 1165-67 (9th Cir. 2014)

(holding Cal. Health & Safety Code § 11351 is divisible); Coronado v. Holder,

759 F.3d 977 (9th Cir. 2014) (holding Cal. Health & Safety Code § 11377(a) is

divisible).

       Sanchez-Nino failed to establish a due process violation resulting from the

BIA’s consideration of his conviction under the categorical approach, where the

BIA went on to consider his conviction under the modified categorical approach.

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process

challenge, an alien must show error and prejudice).




                                          2                                     13-71814
      Under the modified categorical approach, the government has not met its

burden of proving by clear and convincing evidence that Sanchez-Nino was

convicted of possessing for purposes of sale methamphetamine. See Medina-Lara,

771 F.3d at 1113. The complaint, which charged Sanchez-Nino in count one with

a felony violation of California Health & Safety Code § 11378, is the only

document on which the BIA relied that specifies methamphetamine was the drug

involved. The government argues that, under Cabantac v. Holder, 736 F.3d 787,

793-94 (9th Cir. 2013) (per curiam), we can infer the drug of conviction because

the criminal court minute order refers to count one of the complaint. Because the

government must clearly and convincingly establish a link between the complaint

and minute order to justify reliance on the complaint, ambiguities between the two

can cast doubt on that link. See Medina-Lara, 771 F.3d at 1114-15 (the

government failed to carry its burden where the complaint included “Count 3” but

the plea was to “Count 3A,” because it was “plausible” that the “A” stood for

“amended”).

      In Sanchez-Nino’s case, the minute order from July 18, 2011, contains a line

of written text clearly stating “DA to file amended info.” Thus it is “plausible” that

the District Attorney filed an amended complaint and Sanchez-Nino pled to a

charge that was different from that alleged in count one of the complaint in the


                                          3                                     13-71814
record. This raises enough uncertainty between Sanchez-Nino’s complaint and

minute order to preclude the court from finding a clear and convincing link

between the documents. See id.

      Sanchez-Nino’s contention that there is ambiguity in the conviction

documents as to the conviction date is without merit.

      In light of this disposition we need not reach Sanchez-Nino’s remaining

contentions.

      We deny in part and grant in part the petition for review, and remand the

matter to the BIA for disposition consistent with this memorandum.

      The parties shall bear their own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part; AND

REMANDED.




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