                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 17 2010

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

MIRIAM MONDRAGON-SANCHEZ,                        No. 06-70730

              Petitioner,                        Agency No. A095-592-287

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

              Respondent.


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

                            Submitted May 13, 2010**
                             San Francisco, California

Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***




        *
             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).
        ***
             The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
      Miriam Mondragon-Sanchez is a native and citizen of Mexico who petitions

for review of a final order of removal by the Board of Immigration Appeals (BIA).

We have jurisdiction under 8 U.S.C. § 1252, and deny the petition.

      Mondragon-Sanchez admitted at her hearing that she was convicted of

violating California Health and Safety Code § 11366. This conviction renders

Mondragon-Sanchez ineligible for cancellation of removal pursuant to 8 U.S.C.

§ 1229b(b)(1)(C), as § 11366 is an offense related to a controlled substance that

renders her inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and therefore

ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).

      She claims to be eligible for the “petty offense” exception in 8 U.S.C.

§ 1182(a)(2)(A)(ii)(II). However, this exception applies only to crimes involving

moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I) – not to crimes involving a

controlled substance under § 1182(a)(2)(A)(i)(II) for which she was convicted.

See Cisneros-Perez v. Gonzales, 465 F.3d 386, 390 (9th Cir. 2006) (“[T]he petty

offense exception applies only to crimes of moral turpitude . . . .”).

      Mondragon-Sanchez further argues that her § 11366 conviction does not

qualify as a predicate offense under Taylor v. United States, 495 U.S. 575 (1990),

but she failed to raise this issue before the immigration judge or BIA. Normally

failure to exhaust an issue deprives us of jurisdiction to consider it. See 8 U.S.C.


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§ 1252(d); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). Even were we to

do so here, the full range of conduct covered by § 11366 falls within the meaning

of § 1182(a)(2)(A)(i)(II). See Cisneros-Perez, 465 F.3d at 391. The federal statute

reaches any violation of state law “relating to a controlled substance.” 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). There is no question that Mondragon-Sanchez’s conviction

relates to a controlled substance. Thus, it qualifies.

      Finally, Mondragon-Sanchez submits that she should not have been arrested

in the first place and suggests that § 11366 is overly broad to the extent that it

reaches someone such as she who “maintains” a place for unlawfully selling or

using a controlling substance. Cf. Kepilino v. Gonzales, 454 F.3d 1057, 1061-62

(9th Cir. 2006) (holding that “prostitution” in an Hawaii statute is broader than

“prostitution” in the federal statute). However, we look only to the fact of

conviction, not to the facts underlying the offense. Estrada-Espinoza v. Mukasey,

546 F.3d 1147, 1152 (9th Cir. 2008). As Mondragon-Sanchez admittedly was

convicted of an offense relating to a controlled substance, she is ineligible for

cancellation of removal.

      PETITION FOR REVIEW DENIED.




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