                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 01 2013

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




                            FOR THE NINTH CIRCUIT



ARTURO VILLA RODRIGUEZ,                          No. 09-71562

              Petitioner,                        Agency No. A077-973-372

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

              Respondent.



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

                            Submitted February 7, 2013 **
                               Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

       Petitioner Arturo Villa Rodriguez petitions for review of the Board of

Immigration Appeals decision dismissing his appeal. The BIA affirmed the denial

of Villa Rodriguez’s application for an adjustment of status on the ground that he




        *
             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).
did not qualify for a waiver under INA § 212(h) of his prior conviction for a

controlled substance offense. 8 U.S.C. § 1182(h). We agree with the BIA that

Villa Rodriguez did not qualify for the section 212(h) waiver and therefore deny

his petition for review.

      An individual convicted of a controlled substances offense may qualify for a

section 212(h) waiver only if the conviction was for “a single offense of simple

possession of 30 grams or less of marijuana.” INA § 212(h), 8 U.S.C. § 1182(h).

Villa Rodriguez failed to demonstrate that his conviction under California Health

and Safety Code § 11360(a) – which pertains to the transport, import, sale,

furnishing, administering, and giving away of marijuana – was a conviction for

simple possession of marijuana.

      In Young v. Holder, 697 F.3d 976, 988–90 (9th Cir. 2012) (en banc), we held

that a noncitizen bears the burden of showing eligibility for cancellation of

removal. This case concerns a waiver of inadmissibility rather than cancellation of

removal, but the same principle applies here, because Villa Rodriguez’s ultimate

goal was to avoid removal, and a section 212(h) waiver is a “benefit or privilege.”

Id. at 988 (quoting 8 C.F.R. § 1240.8(d)). It was therefore Villa Rodriguez’s

burden to demonstrate his eligibility for the section 212(h) wavier.




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      The inconclusive record of conviction failed to satisfy Villa Rodriguez’s

burden. See id. at 989 (“[A]n inconclusive record of conviction does not

demonstrate eligibility for cancellation of removal.”). The only judicially

noticeable document in the record, see Aguilar-Turcios v. Holder, 691 F.3d 1025,

1032 (9th Cir. 2012), the complaint, merely tracked the language of section

11360(a). It gave no indication of the facts on which Villa Rodriguez’s conviction

necessarily rested. See id.; see also Young, 697 F.3d at 990.

      Having concluded that Villa Rodriguez did not qualify for a section 212(h)

waiver because he failed to establish that he was convicted of simple possession of

marijuana, we need not reach the issues of whether the BIA erred in concluding

that the amount of marijuana in issue was not less than 30 grams, and whether

Villa Rodriguez was convicted of an aggravated felony.

      PETITION DENIED.




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