                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 RAUL QUIJADA CORONADO,                           No. 11-72121
                      Petitioner,
                                                  Agency No.
                     v.                          A012-632-641

 ERIC H. HOLDER, JR., Attorney
 General,                                         ORDER AND
                         Respondent.               AMENDED
                                                    OPINION


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

                     Argued and Submitted
              July 8, 2013—Pasadena, California

                     Filed March 14, 2014
                    Amended July 18, 2014

     Before: Fortunato P. Benavides,* Jay S. Bybee, and
           Jacqueline H. Nguyen, Circuit Judges.

                   Opinion by Judge Nguyen




 *
   The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2                     CORONADO V. HOLDER

                           SUMMARY**


                            Immigration

    The panel amended its opinion filed on March 14, 2014,
and denied in part, granted in part, remanded in part and
dismissed in part Raul Quijada Coronado’s petition for
review of the Board of Immigration Appeals’ decision finding
him inadmissible and denying cancellation of removal.

     The panel held that the BIA did not err in finding
Coronado inadmissible based on his conviction for possessing
methamphetamine, in violation of California Health & Safety
Code § 11377(a). The panel held that § 11377(a) is a
divisible statute under Descamps v. United States, 133 S. Ct.
2276 (2013), and in applying the modified categorical
approach found that Coronado was convicted of possessing
a controlled substance listed in the Federal Controlled
Substances Act. The panel also held that the BIA failed to
address Coronado’s due process claims alleging ineffective
assistance of counsel and bias by the immigration judge, and
remanded to the BIA for consideration of those claims in the
first instance.

    The panel dismissed for lack of jurisdiction Coronado’s
claim that the BIA violated his right to equal protection
because detained aliens like himself, unlike non-detained
aliens, are barred from establishing genuine rehabilitation,
generally required for a grant of cancellation. The panel
found that Coronado’s argument was merely an attempt to

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   CORONADO V. HOLDER                       3

contest the weight the BIA assigned to his sobriety while in
detention, one of many factors the BIA considered in making
its non-reviewable discretionary determination.


                        COUNSEL

Bradley J. Hamburger (argued), Theane Evangelis Kapur, and
Brandon S. Dimond, Gibson, Dunn & Crutcher LLP, Los
Angeles, California, for Petitioner.

Jessica R. C. Malloy (argued), Trial Attorney; Stuart F.
Delery, Acting Assistant Attorney General; Paul Fiorino,
Senior Litigation Counsel; and Katherine A. Smith, Trial
Attorney, United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.


                          ORDER

     The opinion filed on March 14, 2014, and appearing at
747 F.3d 662, is amended. The superseding amended opinion
is filed concurrently with this order.

    With these amendments, the panel has voted to deny the
petition for panel rehearing. Judge Bybee and Judge Nguyen
have voted to deny the petition for rehearing en banc, and
Judge Benavides has so recommended. The full court has
been advised of the petition for rehearing en banc and no
judge of the court has requested a vote on en banc rehearing.
See Fed. R. App. P. 35(f).
4                  CORONADO V. HOLDER

   The petition for panel rehearing and rehearing en banc is
DENIED. No further petitions for rehearing or rehearing en
banc will be entertained.



                         OPINION

NGUYEN, Circuit Judge:

    Raul Quijada Coronado petitions for review of the Board
of Immigration Appeals’ (“BIA”) decision finding him
inadmissible and denying his application for cancellation of
removal. Coronado argues that the BIA erred in concluding
that he had suffered two prior convictions for possession of
a controlled substance prohibited under the Federal
Controlled Substances Act (“CSA”), 21 U.S.C. § 802. See
8 U.S.C. § 1182(a)(2)(A)(i)(II). Coronado further argues that
the BIA erred in failing to address his constitutional claims.

     We hold that the statute under which Coronado was
convicted, California Health & Safety Code § 11377(a), is a
divisible statute, and thus, we apply the modified categorical
approach in analyzing Coronado’s prior convictions. See
Descamps v. United States, — U.S. —, 133 S. Ct. 2276, 2281
(2013) (stating that the modified categorical approach applies
only to prior convictions under a “divisible” statute, one that
“sets out one or more elements of the offense in the
alternative”). Under that approach, the government satisfied
its burden of proving that Coronado was twice convicted of
possessing methamphetamine, a controlled substance listed
in the CSA. Therefore, the BIA did not err in finding
Coronado inadmissible based on his prior convictions.
                  CORONADO V. HOLDER                       5

    However, because the BIA failed to address Coronado’s
due process claims, which allege ineffective assistance of
counsel and bias by the immigration judge (“IJ”), we remand
to the BIA for consideration of these claims in the first
instance. We dismiss Coronado’s unexhausted equal
protection claim for lack of jurisdiction.

                       Background

                              I

    Coronado, a native and citizen of Mexico, became a legal
permanent resident of the United States in 1961. In 1998, he
was charged in state court with possession of
methamphetamine in violation of California Health & Safety
Code § 11377(a). According to the state court’s certified
electronic docket in Case No. 8LC01036, he pleaded guilty to
“Count (01),” the only charge in the criminal complaint. In
December 2006, the court entered judgment against Coronado
“as to Count (01)” (the “2006 Conviction”).

    On September 15, 2008, Coronado applied for admission
to the United States after making a trip to Mexico. Upon
checking his criminal records, Border Patrol officers learned
of the 2006 Conviction. On that same day, Coronado was
paroled into the United States, and the Department of
Homeland Security (“DHS”) served him with a Notice to
Appear. In May 2009, DHS served him with a Form I-261,
which alleged, among other things, that Coronado was subject
to removal due to his conviction in 2006 for possession of
methamphetamine.

   In December 2009, while in removal proceedings,
Coronado was again charged in state court with possession of
6                  CORONADO V. HOLDER

methamphetamine in violation of California Health & Safety
Code § 11377(a). According to the court minutes in Case No.
JCF24680, on March 23, 2010, Coronado pleaded guilty to
“Count 1: HS11377(A),” the only charge in the criminal
complaint (the “2010 Conviction”).

                              II

                              A

    During his removal proceedings, Coronado denied having
been convicted of methamphetamine possession. To prove
the 2006 Conviction, the government submitted the criminal
complaint and the certified electronic docket of that case.
Further, to prove the 2010 Conviction, the government
submitted documents that included the criminal complaint
and the court minutes of that case.

    The IJ found Coronado inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) due to his convictions for possession of
a controlled substance listed in the CSA. Further, after
weighing the relevant factors, the IJ denied Coronado’s
application for cancellation of removal.

    Appearing pro se, Coronado appealed to the BIA, which
affirmed the IJ’s finding that Coronado was inadmissible
based on his prior drug convictions. The BIA also affirmed
the IJ’s denial of cancellation of removal on the ground that
Coronado’s “undesirability as a permanent resident”
outweighed the positive equities. Coronado timely petitioned
for review.
                   CORONADO V. HOLDER                        7

                              B

    In his opening brief to this court, Coronado did not
challenge the use of the modified categorical approach with
regard to his prior convictions. Instead, he argued that the
BIA erred because the charging papers alone were
insufficient to prove that he was convicted of possessing a
controlled substance listed in the CSA.

    While Coronado’s petition for review was pending, the
Supreme Court issued a decision in Descamps v. United
States, 133 S. Ct. 2276, which clarified the circumstances in
which the modified categorical approach may be applied.
The parties filed letters pursuant to Federal Rule of Appellate
Procedure 28(j), taking contrary positions as to the
applicability of the modified categorical approach to
Coronado’s state court convictions. The government argued
that § 11377(a) is a divisible statute, whereas Coronado
contended that the statute is not necessarily divisible.

          Jurisdiction and Standard of Review

    We have jurisdiction to review “constitutional claims or
questions of law raised upon a petition for review.” 8 U.S.C.
§ 1252(a)(2)(D); see also Cheuk Fung S-Yong v. Holder,
600 F.3d 1028, 1033 (9th Cir. 2010) (applying 8 U.S.C.
§ 1252(a)(2)(D)). Whether Coronado’s drug convictions
render him inadmissible is a question of law. See Pagayon v.
Holder, 675 F.3d 1182, 1189 (9th Cir. 2011) (per curiam);
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.
2004). Further, Coronado raised several constitutional
claims. Accordingly, we have jurisdiction to hear Coronado’s
petition.
8                   CORONADO V. HOLDER

   We review questions of law and constitutional claims de
novo. Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009).

                          Discussion

                                I

    Under 8 U.S.C. § 1182(a)(2)(A)(i)(II), “any alien
convicted of, or who admits to having committed . . . (II) a
violation of (or conspiracy or attempt to violate) any law or
regulation of a State . . . relating to a controlled substance (as
defined in section 802 of title 21), is inadmissible.” Here,
Coronado challenges the BIA’s finding of inadmissibility
based on his two prior convictions for possessing
methamphetamine, in violation of California Health & Safety
Code § 11377(a).              Thus, pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), the government had the burden of
proving that Coronado’s criminal conviction was for
possession of a substance that is listed under California law
and the CSA schedules. See Ruiz-Vidal v. Gonzales,
473 F.3d 1072, 1077–78 (9th Cir. 2007). If the “full range of
conduct” covered by § 11377(a) falls within the CSA
schedules, then Coronado’s conviction is “categorically a
removable offense” and our inquiry is over. Alanis-Alvarado
v. Holder, 558 F.3d 833, 836 (9th Cir. 2009).

                               A

    California Health & Safety Code § 11377(a) provides:

        Except as authorized by law . . . every person
        who possesses any controlled substances
        which is (1) classified in Schedule III, IV, or
        V, and which is not a narcotic drug,
                      CORONADO V. HOLDER                                9

         (2) specified in subdivision (d) of Section
         11054, except paragraphs (13), (14), (15), and
         (20) of subdivision (d), (3) specified in
         paragraph (11) of subdivision (c) of Section
         11056, (4) specified in paragraph (2) or (3) of
         subdivision (f) of Section 11054, or
         (5) specified in subdivision (d), (e), or (f) of
         Section 11055 . . . shall be punished by
         imprisonment in a county jail for a period of
         not more than one year or pursuant to
         subdivision (h) of Section 1170 of the Penal
         Code.

    By comparison, the CSA defines a “controlled substance”
as “a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V of part B of this
subchapter.” 21 U.S.C. § 802(6). In turn, the schedules are
codified in 21 U.S.C. § 812 and revised annually in 21 C.F.R.
§ 1308.01 et seq. See 21 U.S.C. §§ 802(6), 812(a).

    The text of the relevant statutes is not particularly helpful
here because both § 11377(a) and the CSA define offenses by
reference to other statutes. Nevertheless, as laid out in
Appendix 1, the substances barred by § 11377(a) and the
CSA are nearly identical. Indeed, khat (Catha Edulis) is one
of the only substances that violates § 11377(a) but not the
CSA.1 See Cal. Health & Safety Code § 11377(a)(5)
(prohibiting substances specified in California Health &
Safety Code § 11055 (d), (e), or (f)); Cal. Health & Safety
Code § 11055(d)(7) (prohibiting “[k]hat, which includes all


    1
      Chorionic gonadotropin (HGC) (Cal. Health & Safety Code
§ 11056(f)(32)) is also not listed in the federal schedules. See 21 C.F.R.
§ 1308.13 (Schedule III of the CSA).
10                    CORONADO V. HOLDER

parts of the plant classified botanically as Catha Edulis”); see
also, e.g., United States v. Hassan, 578 F.3d 108, 114 (2d Cir.
2008) (“Khat itself is not a controlled substance under United
States law.”); United States v. Caseer, 399 F.3d 828, 833 (6th
Cir. 2005) (“[N]either the U.S. Code nor the Code of Federal
Regulations . . . refers to . . . Catha edulis, commonly known
as ‘khat.’”).

    This one difference is sufficient because the “full range of
conduct” covered by California Health & Safety Code
§ 11377(a) does not fall within the CSA schedules, and as
such, Coronado’s conviction is not a categorically removable
offense.2 Accordingly, we must consider whether we may
use the “modified categorical” approach to determine whether
Coronado was convicted of a removable offense under
8 U.S.C. § 1182(a)(2)(A)(i)(II). Cheuk Fung S-Yong,
600 F.3d at 1029.

                                   B

    In Descamps, the Supreme Court resolved a circuit split
regarding whether the modified categorical approach is
appropriate when the indivisible elements of a statute target
a broader swath of conduct than a corresponding generic
offense. 133 S. Ct. at 2283. The Supreme Court answered in
the negative, clarifying that the modified categorical
approach only “serves a limited function.” Id. Specifically,


 2
   We previously determined that California law regulates the possession
of several substances that are not similarly regulated by the CSA. Ruiz-
Vidal, 473 F.3d at 1078. Although Ruiz-Vidal reinforces our decision
here, we are not bound by that opinion because there, we analyzed
California Health & Safety Code §§ 11055(b)(1)(G) and 11033—statutes
that are not referenced in California Health & Safety Code § 11377(a). Id.
                   CORONADO V. HOLDER                        11

the modified categorical approach “helps effectuate the
categorical analysis when a divisible statute, listing potential
offense elements in the alternative, renders opaque which
element played a part in the defendant’s conviction.” Id.
Thus, properly viewed, the modified categorical approach
merely enables a court to ascertain the specific element that
a defendant was convicted of violating when a statute
contains multiple, alternative elements. See id. at 2285
(describing the modified categorical approach as a “tool” that
permits a court “to find out which [offense] the defendant was
convicted of” when a statute contains alternative elements
that “effectively create[] ‘several different . . . crimes’”
(quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009))).
Divisibility is therefore an “elements-based” inquiry and not
a “facts-based” one. Descamps, 133 S. Ct. at 2293.

    Applying this “elements-based” inquiry to California
Penal Code § 459, the burglary statute that was at issue, the
Descamps Court held that the modified categorical approach
could not be used because § 459 was not divisible. Id. at
2283. Rather, § 459 merely applied “more broadly than the
generic offense.” Id. While the generic offense required “an
unlawful entry along the lines of breaking and entering,” the
California statute did not. Id. at 2285. Having thus drawn a
distinction between divisible statutes versus overbroad
statutes, the Court held that the modified categorical approach
“ha[d] no role to play” in analyzing Descamps’s prior
conviction. Id.

    Therefore, as a threshold matter, we must confront the
question of whether § 11377(a) is a divisible statute such that
the modified categorical approach applies.
12                    CORONADO V. HOLDER

                                   C

    Section 11377(a) identifies a number of California drug
schedules and statutes and organizes them into five separate
groups, which are listed in the disjunctive. Cal. Health &
Safety Code § 11377(a). Section 11377(a) criminalizes the
possession of any one of the controlled substances identified
by reference. Id. Unlike the California burglary statute at
issue in Descamps, § 11377(a) is not merely an indivisible,
overbroad statute that lacks an element contained in the
corresponding generic federal offense. Rather, by its very
terms, § 11377(a) “list[s] potential offense elements in the
alternative,” Descamps, 133 S. Ct. at 2284, some of which are
contained in the CSA and some of which are not. Use of the
modified categorical approach is therefore appropriate “to
determine which alternative element . . . formed the basis of
the defendant’s conviction.” Id. at 2284, 2293. Put
differently, the modified categorical approach may be used
here as part of an elements-based inquiry to ascertain which
portion of § 11377(a) Coronado actually pleaded guilty to
violating.3

    Coronado argues that § 11377(a) is not necessarily
divisible because statutes can list “alternative means” of
satisfying an indivisible set of elements. See id. at 2285 n.2,
2290–91. While this may be true as to some statutes, it is not

 3
    We have treated a similar provision of the California Health & Safety
Code as “sufficiently divisible” for purposes of applying the modified
categorical approach. See Cheuk Fung S-Yong, 600 F.3d at 1034 n.5
(noting that California Health & Safety Code § 11379 is divisible); see
also Cabantac v. Holder, 736 F.3d 787, 789 n.2 (9th Cir. 2013) (Murguia,
J., dissenting) (although undecided, “[i]t appears that § 11377(a) is a
divisible statute that permits the application of the modified categorical
approach”).
                       CORONADO V. HOLDER                              13

the case with regard to § 11377(a). Section 11377(a)
identifies a number of controlled substances by referencing
various California drug schedules and statutes and
criminalizes the possession of any one of those substances.
The statute thus “effectively creates ‘several different . . .
crimes,” id. at 2285 (quoting Nijhawan, 557 U.S. at 41), and
not separate “means of commission,” id. at 2291 (internal
quotation marks omitted). Indeed, the Descamps Court’s
discussion of a hypothetical state statute criminalizing assault
with “any of eight specified weapons” supports such a
conclusion because the Court suggested that the listing of
alternative weapons by such a statute would not render it
indivisible. Id. at 2290. To the contrary, in such a
circumstance, a court could apply the modified categorical
approach and “check the charging documents and
instructions” to determine which element formed the
predicate offense for the conviction. Id. The same rationale
applies here with § 11377(a) and its listing of alternative
controlled substances.4




   4
      Coronado further argues that “the precise controlled substance
possessed is not an essential element” of § 11377(a). Neither case he cites
supports this contention. See People v. Palaschak, 893 P.2d 717, 720–21
(Cal. 1995) (holding that an offender may be convicted of the offense of
possessing drugs despite having ingested those drugs); People v. Martin,
86 Cal. Rptr. 3d 858, 861–82 (Cal. Ct. App. 2008) (finding no error where
the defense failed to object to the specificity of the pleadings and the
defendant was not prejudiced by the conflicting references to “cocaine”
and “cocaine base” because the penalty of the offense was the same). The
jury instructions applicable to this offense also undermine Coronado’s
argument. See CALCRIM No. 2304 (2013); CALJIC 12.00 (2013).
14                 CORONADO V. HOLDER

                              D

   In applying the modified categorical approach to
Coronado’s prior convictions, we find that the government
met its burden of proving that he was twice convicted of
possessing methamphetamine.

    Coronado claims that under the modified categorical
approach, the only relevant document in each case was the
criminal complaint, which alone is insufficient to establish
that the controlled substance he possessed was
methamphetamine as opposed to a substance not covered by
the CSA. However, Coronado ignores the fact that the
government may also rely on other “equally reliable”
documents to show that he pleaded to the facts alleged in
each criminal complaint. In conducting a modified
categorical analysis, the court may consider the charging
document, the terms of a plea agreement, the transcript of
colloquy between the judge and the defendant in which the
factual basis for the plea was confirmed by the defendant, and
comparable judicial records. Shepard v. United States,
544 U.S. 13, 26 (2005). The list of documents in Shepard is
merely illustrative, and “documents of equal reliability may
also be considered.” United States v. Snellenberger, 548 F.3d
699, 701 (9th Cir. 2008) (en banc) (per curiam). For
example, in Snellenberger, we decided that a California state
court clerk’s minute order was “equally reliable” and could
be used in applying the modified categorical approach. Id. at
701–02.

    Similarly here, the certified electronic docket in the 2006
Conviction and the court minutes in the 2010 Conviction are
equally reliable to the documents approved in Shepard. With
regard to the certified electronic docket, California Penal
                   CORONADO V. HOLDER                       15

Code § 1428 permits the clerk to “keep a docket[] instead of
minutes” in misdemeanor cases, and where “an entry of any
judgment, order or other proceeding in the minutes . . . is
required, an entry thereof in the docket shall be made and
shall be deemed a sufficient entry in the minutes . . . for all
purposes.” Because docket sheets may be kept in lieu of
minute orders, they qualify as documents of “equal
reliability.” See Snellenberger, 548 F.3d at 701; United
States v. Strickland, 601 F.3d 963, 968 (9th Cir. 2010)
(permitting the use of an uncertified docket sheet from a
Maryland court). Likewise, under Snellenberger, the court
minutes in the 2010 Conviction are equally reliable.

    Where the minute order or other equally reliable
document specifies that a defendant pleaded guilty to a
particular count of a criminal complaint, the court may
consider the facts alleged in the complaint. Cabantac v.
Holder, 736 F.3d 787, 793–94 (9th Cir. 2013) (per curiam).
Applying Cabantac, the criminal complaints here, read in
conjunction with the docket sheet and minute order, establish
that Coronado twice pleaded guilty to possession of
methamphetamine. In the 2006 Conviction, the certified
electronic docket shows that Coronado pleaded guilty to
count one. The criminal complaint listed one count and
referenced only one controlled substance, namely,
methamphetamine. Likewise, in the 2010 Conviction, the
court minutes indicate that Coronado pleaded guilty to count
one. In turn, the criminal complaint described only one count
for possession of methamphetamine.

    Therefore, the BIA did not err in finding Coronado
inadmissible based on two prior convictions for possession of
a controlled substance prohibited by California law and the
CSA.
16                 CORONADO V. HOLDER

                               II

    We next consider Coronado’s argument that the BIA
erred in ignoring his constitutional due process claims.
Specifically, Coronado argues that his due process rights
were violated because of (1) his former counsel’s ineffective
assistance and (2) the IJ’s bias during the removal
proceedings. The BIA addressed neither claim.

     In his pro se brief to the BIA, Coronado explicitly stated
that he had an “ineffective assistance claim.” In addition, he
criticized his counsel for failing to “research[] the law and the
facts as pertained to his case and present [the case] properly.”
Coronado also argued that his former counsel “showed
incompetence by failing to object to many of the questions
and negative facts comments” made by the IJ. Although his
pro se brief was inartful, we find that Coronado’s complaints
about his counsel’s deficient performance were sufficient to
put the BIA on notice of his claim for ineffective assistance
of counsel. See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th
Cir. 2008) (explaining that the exhaustion doctrine is not
applied “in a formalistic manner” and requires only that the
petitioner put the BIA on notice as to the specific issues so
that it has an opportunity to pass on those issues); Agyeman
v. INS, 296 F.3d 871, 878 (9th Cir. 2002) (holding that pro se
claims should be construed liberally).

    Coronado next argues that the BIA erred in ignoring his
claim that the IJ failed to act as a neutral fact-finder and
Coronado was prejudiced because he was prevented from
fully presenting his case. In his pro se brief to the BIA,
Coronado criticized the IJ, claiming that the IJ “personally
attack[ed]” him; appeared to have a “personal vendetta”
against him; and took the role of both “the prosecutor and
                   CORONADO V. HOLDER                        17

executioner” by showing that Coronado was “a bad person
with a bad moral character.” Yet, the BIA inexplicably
ignored Coronado’s arguments.

    The government contends that Coronado failed to exhaust
the claim that his former counsel was ineffective. The
government does not contend that Coronado’s claim that the
IJ failed to act as a neutral fact-finder was unexhausted but
instead argues that we lack jurisdiction to review the claim
because the BIA independently weighed the discretionary
factors. We disagree with both of the government’s
contentions.

    The BIA is “not free to ignore arguments raised by a
petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th
Cir. 2005). However, under the ordinary remand rule, “we
are not permitted to decide a claim that the immigration court
has not considered in the first instance.” Montes-Lopez v.
Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007) (citing INS v.
Ventura, 537 U.S. 12, 16 (2002) (per curiam)); see also
Barroso v. Gonzales, 429 F.3d 1195, 1209 (9th Cir. 2005)
(“Although it appears that [the petitioner] may well have been
denied his statutory right to counsel, it is not for us to
determine this question in the first instance.” (citing Ventura,
537 U.S. at 16)). Accordingly, we remand both claims to the
BIA to consider them in the first instance.

                              III

    Finally, we turn to Coronado’s claim that the BIA
violated his right to equal protection in denying his
application for cancellation of removal.
18                  CORONADO V. HOLDER

    The IJ denied Coronado’s application for cancellation of
removal after weighing multiple factors in favor of, and
against, the grant of relief. Reviewing the denial of relief de
novo, the BIA affirmed. The BIA balanced the positive
factors, including Coronado’s family ties, long employment
history, and long residence in the United States, against the
negative factors, including Coronado’s long history of drug
use, his failure at rehabilitation programs, and the fact that his
sobriety in detention was enforced. The BIA concluded that
“[g]iven the number and recency of his convictions, his
admitted addiction, and his lack of rehabilitation over many
years, . . . [the positive factors] do not outweigh the adverse
factors evidencing his undesirability as a permanent
resident.”

    On appeal, Coronado argues that the BIA violated his
right to equal protection because detained aliens like
himself—unlike non-detained aliens—are barred from
establishing their genuine rehabilitation, which is ordinarily
a prerequisite to the granting of cancellation of removal.

    Coronado mischaracterizes the BIA’s analysis. In
concluding that he failed to establish meaningful
rehabilitation, the BIA did not rely solely on the fact that his
current sobriety in detention was enforced, but also on the
fact that he had failed at prior rehabilitation programs. Thus,
although Coronado claims an “equal protection violation,” his
challenge to the BIA’s denial of relief is not in fact a
colorable constitutional claim or question of law over which
we could exercise jurisdiction. See 8 U.S.C. § 1252(a)(2)(D)
(providing this court with jurisdiction over “constitutional
claims or questions of law raised upon a petition for review”);
see also Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.
2001) (“[A] petitioner may not create the jurisdiction that
                  CORONADO V. HOLDER                     19

Congress chose to remove simply by cloaking an abuse of
discretion argument in constitutional garb.”). Rather,
Coronado’s argument, properly considered, is merely an
attempt to contest the weight the BIA assigned to his
sobriety while in detention, which was one of the many
factors the BIA considered in deciding whether to grant him
cancellation of removal. We have no jurisdiction to review
such discretionary determinations under 8 U.S.C.
§ 1252(a)(2)(B)(i). See Martinez-Rosas v. Gonzales, 424
F.3d 926, 930 (9th Cir. 2005) (recognizing that we lack
jurisdiction to review the agency’s discretionary
determination regarding the granting of cancellation of
removal).

                        Conclusion

    The petition for review is DENIED in part as to the
BIA’s determination that Coronado is inadmissible due to his
convictions for possession of methamphetamine; GRANTED
in part and REMANDED as to Coronado’s due process
claims; and DISMISSED in part as to Coronado’s equal
protection claim.

   The parties shall bear their own costs on appeal.
20   CORONADO V. HOLDER




         Appendix 1
                      CORONADO V. HOLDER                              21

     California Health and Safety Code § 11377(a)(1)

         CALIFORNIA                             FEDERAL
 Schedule III (§ 11056)               generally* 21 C.F.R.
                                      § 1308.13
 Schedule IV (§ 11057)                generally 21 C.F.R.
                                      § 1308.14
 Schedule V (§ 11058)                 generally 21 C.F.R.
                                      § 1308.15

    * California Schedules III–V are nearly identical to the
federal Schedules III–V.5 However, there are five substances
that are enumerated in a different portion of California’s
schedules than their federal counterpart:

         CALIFORNIA                             FEDERAL
 § 11056(b)(5)                        21 C.F.R. § 1308.14(f)(5)
 § 11056(c)(11)                       21 C.F.R. § 1308.11(e)(1)
 § 11056(d)(1)                        21 C.F.R. § 1308.13(f)(1)
 § 11057(b)(c)(3)                     21 C.F.R. § 1308.14(g)(2)
 § 11058(d)                           21 C.F.R.
                                      § 1308.13(e)(2)(i)




 5
    As previously noted, chorionic gonadotropin (HGC), which is listed in
California Schedule III, Cal. Health & Safety Code § 11056(f)(32), is not
listed in the federal schedules.
22                CORONADO V. HOLDER

     California Health and Safety Code § 11377(a)(2)

        CALIFORNIA                   FEDERAL
 § 11054(d)(1)               21 C.F.R. § 1308.11(d)(2)
 § 11054(d)(2)               21 C.F.R. § 1308.11(d)(4)
 § 11054(d)(3)               21 C.F.R. § 1308.11(d)(7)
 § 11054(d)(4)               21 C.F.R. § 1308.11(d)(8)
 § 11054(d)(5)               21 C.F.R. § 1308.11(d)(9)
 § 11054(d)(6)               21 C.F.R. § 1308.11(d)(10)
 § 11054(d)(7)               21 C.F.R. § 1308.11(d)(14)
 § 11054(d)(8)               21 C.F.R. § 1308.11(d)(17)
 § 11054(d)(9)               21 C.F.R. § 1308.11(d)(18)
 § 11054(d)(10)              21 C.F.R. § 1308.11(d)(19)
 § 11054(d)(11)              21 C.F.R. § 1308.11(d)(21)
 § 11054(d)(12)              21 C.F.R. § 1308.11(d)(22)
 § 11054(d)(16)              21 C.F.R. § 1308.11(d)(27)
 § 11054(d)(17)              21 C.F.R. § 1308.11(d)(28)
 § 11054(d)(18)              21 C.F.R. § 1308.11(d)(29)
 § 11054(d)(19)              21 C.F.R. § 1308.11(d)(30)
 § 11054(d)(21)              21 C.F.R. § 1308.11(d)(32)
 § 11054(d)(22)              21 C.F.R. § 1308.11(d)(33)
                 CORONADO V. HOLDER                   23

§ 11054(d)(23)            21 C.F.R. § 1308.11(d)(34)


  California Health and Safety Code § 11377(a)(3)

      CALIFORNIA                  FEDERAL
§ 11056(c)(11)            21 C.F.R. § 1308.11(e)(3)

  California Health and Safety Code § 11377(a)(4)

      CALIFORNIA                  FEDERAL
§ 11054(f)(2)             21 C.F.R. § 1308.11(f)(4)
§ 11054(f)(3)             21 C.F.R. § 1308.11(f)(7)

  California Health and Safety Code § 11377(a)(5)

      CALIFORNIA                  FEDERAL

§ 11055(d)(1)             21 C.F.R. § 1308.12(d)(1)

§ 11055(d)(2)             21 C.F.R. § 1308.12(d)(2)
§ 11055(d)(3)             21 C.F.R. § 1308.11(f)(8)
§ 11055(d)(4)             NONE
§ 11055(d)(5)             21 C.F.R. § 1308.12(d)(3)
§ 11055(d)(6)             21 C.F.R. § 1308.12(d)(4)
§ 11055(d)(7)             NONE
24                   CORONADO V. HOLDER

 § 11055(d)(8)                     21 C.F.R. § 1308.11(f)(3)
 § 11055(e)(1)                     21 C.F.R.
                                   § 1308.13(c)(2)(i)
 § 11055(e)(2)                     21 C.F.R.
                                   § 1308.13(c)(2)(iii)
 § 11055(e)(3)                     21 C.F.R. § 1308.12(e)(4)
 § 11055(e)(3)(A)                  21 C.F.R. § 1308.11(d)(33)
 § 11055(e)(3)(B)                  NONE
 § 11055(e)(3)(C)                  21 C.F.R. § 1308.12(e)(4)6
 § 11055(e)(4)                     21 C.F.R. § 1308.12(e)(5)
 § 11055(e)(5)                     21 C.F.R. § 1308.12(e)(2)
 § 11055(f)(1)                     21 C.F.R. § 1308.12(g)(1)
 § 11055(f)(1)(A)                  21 C.F.R.
                                   § 1308.12(g)(1)(i)
 § 11055(f)(2)                     21 C.F.R. § 1308.12(g)(2)
 § 11055(f)(2)(A)                  21 C.F.R.
                                   § 1308.12(g)(2)(i)
 § 11055(f)(2)(B)                  21 C.F.R.
                                   § 1308.12(g)(2)(ii)




  6
    The CSA does not cover additional forms of phencyclidine that the
Attorney General may add.
