                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 24 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



RICARDO ZAVALA-RAMIREZ, a.k.a.                   No. 08-73846
Ricardo Zavala-Rocha,
                                                 Agency No. A036-624-144
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted September 13, 2010

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Ricardo Zavala-Ramirez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.

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

909 (9th Cir. 2004), and for substantial evidence the agency’s factual findings,

Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1092 (9th Cir. 2005). We deny the

petition for review.

      Zavala-Ramirez’s conviction for violating Cal. Health and Safety Code

§ 11378 is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). See Cazarez-

Gutierrez, 382 F.3d at 919 (a state drug offense is an aggravated felony for

immigration purposes if it contains a trafficking element). Contrary to Zavala-

Ramirez’s contention, the record of conviction establishes that he was convicted of

selling methamphetamine. See Shepard v. United States, 544 U.S. 13, 16 (2005)

(charging document and transcript of plea colloquy may be used for modified

categorical analysis).

      The agency properly denied Zavala-Ramirez’s claim to derivative

citizenship where Zavala-Ramirez’s United States citizen mother testified that she

was not physically present in the United States for the requisite five years after

turning 14 in order to pass citizenship to Zavala-Ramirez. See 8 U.S.C.

§ 1401(a)(7) (1959) (a person shall be a citizen of the United States at birth who is

“born outside the geographical limits of the United States . . . of parents one of

whom is an alien, and the other a citizen of the United States who, prior to the birth


                                           2                                    08-73846
of such person, was physically present in the United States . . . for a period or

periods totaling not less than ten years, at least five of which were after attaining

the age of fourteen years”). It follows that Zavala-Ramirez’s due process claim

fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to

prevail on a due process claim).

      PETITION FOR REVIEW DENIED.




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