                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 06 2014

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

OSCAR MANUEL SANTANA,                            No. 11-73033

              Petitioner,                        Agency No. A019-988-422

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

              Respondent.


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

                     Argued and Submitted February 13, 2014
                            San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and GARBIS, Senior
District Judge.**

       Oscar Santana (Santana), a native and citizen of Mexico, petitions for review

of an order of the Board of Immigration Appeals (BIA) holding that Santana was

removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
aggravated felony (illicit trafficking in a controlled substance), and pursuant to 8

U.S.C. § 1227(a)(2)(B)(I), as an alien convicted of violating a law related to a

controlled substance.

      Santana challenges the immigration judge’s (IJ’s) amendment to the notice to

appear to include the words “on or about” a certain date, asserting that the amendment

violated 8 C.F.R. §§ 1003.30 and 1240.10(e). However, we will not grant relief on

petitioner’s “allegations that an agency has violated its own regulation . . . [unless the

petitioner can] show that he was prejudiced by the agency’s mistake . . . .” Kohli v.

Gonzales, 473 F.3d 1061, 1066 (9th Cir. 2007) (citation and internal quotation marks

omitted). Because Santana “has not shown, and on this record cannot show, that the

alleged defect obscured the charges against [him] or obstructed [his] ability to respond

to the charges . . . the alleged defect was not prejudicial.” Id. at 1068-69.

      Santana also argues that the record of conviction was not included in the

administrative record. This argument is belied by the record.

      The charges of removability required the Department of Homeland Security

(DHS) only to prove that Santana was convicted after his admission to the United

States. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). The conviction records

submitted by DHS included Santana’s Guilty Plea to and Judgment of Conviction for

knowingly using a telephone to facilitate a conspiracy to possess and distribute


                                      Page 2 of 3
methamphetamine, in violation of 21 U.S.C. § 843(b). These documents adequately

established Santana’s conviction of a law relating to a controlled substance that

occurred well after his admission. See 8 U.S.C. § 1229a(c)(3)(B). Moreover, a

conviction for violating 21 U.S.C. § 843 is categorically an aggravated felony. See

Daas v. Holder, 620 F.3d 1050, 1054 (9th Cir. 2010).

      Finally, Santana challenges the BIA’s conclusion that he failed to meet the

requirements for termination of removal proceedings under 8 C.F.R. § 1239.2(f). An

alien must secure an affirmative statement from the DHS confirming the alien’s prima

facie eligibility to naturalize before the IJ may terminate the proceedings. See In re

Hidalgo, 24 I&N Dec. 103, 105-06 (BIA 2007); see also Hernandez de Anderson v.

Gonzales, 497 F.3d 927, 934 (9th Cir. 2007). Santana contends that the 1996 order

administratively closing his naturalization application is an affirmative statement of

his prima facie eligibility. We disagree. The regulation requires an affirmative

statement from the DHS. See Hernandez de Anderson, 897 F.3d at 934. Nothing in

the 1996 order approximates the required affirmative statement.

      PETITION DENIED.




                                    Page 3 of 3
