                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             July 22, 2005
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    JOSE FLORES-VERDE,

                Petitioner,

    v.                                                   No. 04-9578
                                                        (A93-224-978)
    ALBERTO R. GONZALES,        *
                                                     (Petition for Review)

                Respondent.




                              ORDER AND JUDGMENT         **




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

*
      On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Jose Flores-Verde seeks review of a decision of the Board of

Immigration Appeals (BIA) dismissing his appeal of a removal order based on a

state conviction of a controlled-substance offense. Because we conclude that we

lack jurisdiction, we dismiss the petition for review.

       I.     Background

       Petitioner, a native and citizen of Mexico, was admitted as a lawful

permanent resident to the United States in 1988. He traveled outside of the

United States and presented himself for inspection on February 7, 2002. He was

stopped at the border based on a Colorado arrest warrant charging him with

knowingly distributing, selling, and possessing methamphetamine in violation of

Colo. Rev. Stat. § 18-18-405(1)(a), a class three felony.   1
                                                                Petitioner was paroled

into the United States. After plea negotiations, he entered a plea of guilty to

possession of a controlled substance, a class four felony. The state district court



1
       Section 18-18-405 provides, in pertinent part:

       (1)(a) Except as authorized by part 3 of article 22 of title 12, C.R.S.,
       or by part 2 or 3 of this article, it is unlawful for any person
       knowingly to manufacture, dispense, sell, distribute, possess, or to
       possess with intent to manufacture, dispense, sell, or distribute a
       controlled substance; or induce, attempt to induce, or conspire with
       one or more other persons, to manufacture, dispense, sell, distribute,
       possess, or possess with intent to manufacture, dispense, sell, or
       distribute a controlled substance; or possess one or more chemicals
       or supplies or equipment with intent to manufacture a controlled
       substance.

                                            -2-
accepted the plea, entered judgment, and sentenced Petitioner to three years’

imprisonment and three years’ parole.

        On September 10, 2003, Petitioner was served with a Notice to Appear,

charging that he was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II),

which describes as inadmissible aliens convicted of a state offense arising from a

controlled substance as defined by the federal Controlled Substance Act.     2
                                                                                 Any

substance that contains methamphetamine constitutes a Schedule II controlled

substance under the federal act.   See United States v. Killion , 7 F.3d 927, 935

(10th Cir. 1993).

       In proceedings before the Immigration Judge (IJ), Petitioner claimed that he

understood his criminal case to be about marijuana and that the Department of

Homeland Security (DHS) had not provided clear and convincing evidence that he

had been convicted of a methamphetamine offense.       3
                                                           Petitioner claimed that the

2
       Section 1182(a)(2)(A)(i)(II) states:

       [A]ny alien convicted of, or who admits having committed, or who
       admits committing acts which constitute the essential elements of . . .
       a violation of (or a conspiracy or attempt to violate) any law or
       regulation of a State, the United States, or a foreign country relating
       to a controlled substance (as defined in section 802 of Title 21) is
       inadmissible.
3
       Possession of marijuana is also “a controlled substance offense under
section 1182(a)(2).” Okeke v. Gonzales, 407 F.3d 585, 598 (3rd. Cir. 2005).
However, § 1182(h) provides that the Attorney General, in some circumstances,
has the discretion to waive the application of this provision to “a single offense of
                                                                       (continued...)

                                           -3-
certified charging documents proffered by the DHS were inadmissible and

insufficient to show the state court’s intent. He based his argument on two facts:

(1) the judgment of conviction did not identify the controlled substance

underlying his conviction and (2) the information, which specified

methamphetamine, included handwritten amendments and interlineations.

      The IJ carefully considered Petitioner’s argument. In reviewing the

certified documents of conviction, he noted that the judgment established that

Petitioner had pled guilty to a violation of Colo. Rev. Stat. § 18-18-405, which is

a categorical statute. The information was more detailed. It showed that initially

Petitioner had been charged with unlawfully distributing, selling, or dispensing

methamphetamine. The handwritten, initialed, and dated amendments reflected an

amendment to possession of methamphetamine. The IJ determined that, though

the information “contain[ed] some rather messy entries,” it “clearly established”

that the controlled substance involved in Petitioner’s offense was

methamphetamine. Admin. R. at 63. Because methamphetamine is listed on the

federal schedule of controlled substances, he concluded that Petitioner was

removable as charged and that no other relief was available to Petitioner.




3
 (...continued)
simple possession of 30 grams or less of marijuana.”


                                         -4-
      Petitioner then sought review by the Board of Immigration Appeals,

repeating his contention that the information was inadmissible. “[L]ike the

Immigration Judge,” the Board found the information “reliable,” in that the

handwritten “notations . . . indicate[d] that the respondent pled guilty to the lesser

offense of possession of methamphetamine.”              Id. at 3. It therefore dismissed

Petitioner’s appeal.

      II.    Discussion

      On judicial review, Petitioner continues to argue that the agency’s

admission of the “clearly flawed, marked, crossed out, and handwritten”

information was erroneous. Aplt. Br. at 11.         4
                                                        Before we address this issue, we

must examine our jurisdiction. As a general matter, judicial review of removal

orders is barred by 8 U.S.C. § 1252(a)(2)(C), which abrogates our jurisdiction

when the conditions for removal under § 1182(a)(2) are met. However,

§ 1252(a)(2)(C) “requires that we determine whether [those] conditions exist

before dismissing the appeal.”    Tapia Garcia v. INS , 237 F.3d 1216, 1220 (10th



4
      At every stage of agency proceedings, Petitioner also maintained that his
conviction did not amount to an aggravated felony, see 8 U.S.C. § 1101(a)(43),
which could warrant deportation pursuant to § 1227(a). His appellate briefs
reassert this argument. Petitioner, however, was not charged with deportability as
an aggravated felon. Instead, he was charged with inadmissibility under
§ 1182(a)(2)(A)(i)(II). Thus, his argument concerning the definition of an
aggravated felony is irrelevant and we do not consider it in this order and
judgment.

                                              -5-
Cir. 2001). We therefore have jurisdiction to determine whether a petitioner is

removable for conviction of an offense encompassed within

§ 1182(a)(2)(A)(i)(II).   See id .; see also Fernandez-Bernal v. Attorney Gen.   ,

257 F.3d 1304, 1310 (11th Cir. 2001) (stating that “so long as [the petitioner] is

in fact removable under § 1182(a)(2), we lack jurisdiction to review his final

order of removal”) . Because Petitioner claims that the DHS did not show that his

offense involved a federally defined controlled substance, the merits of his case

coincide with the jurisdictional question.     See Cruz-Garza v. Ashcroft,   396 F.3d

1125, 1127 n.2 (10th Cir. 2005).

       Again, Petitioner’s sole substantive challenge to the order of removal is his

contention that the information was inadmissible to prove conviction of a

methamphetamine-related offense. In evaluating this challenge, we must keep in

mind that “administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary,” and “a decision that

an alien is not eligible for admission to the United States is conclusive unless

manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(B), (C).

       We have carefully reviewed the record. Based on that review, we

determine that the agency’s evidentiary ruling is reasonable, its findings are

supported by the evidence, and its ultimate conclusion comports with the law.

Petitioner is removable by reason of his conviction of a controlled-substance


                                             -6-
offense. And § 1252(a)(2)(C) precludes us from reviewing the BIA’s final order

of removal. Because we lack jurisdiction to review Petitioner’s petition,

Respondent’s motion to dismiss is GRANTED and Petitioner's petition for review

is DISMISSED. Petitioner’s Motion for Leave to Proceed on Appeal Without

Prepayment of Costs or Fees is GRANTED.



                                                   Entered for the Court


                                                   Monroe G. McKay
                                                   Circuit Judge




                                        -7-
