                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 02 2012

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



                            FOR THE NINTH CIRCUIT


GUILLERMO ERNESTO GUEVARA-                       No. 08-71140
CALDERON,
                                                 Agency No. A043-195-665
              Petitioner,

  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 April 11, 2012
                              Pasadena, California

Before: KLEINFELD and M. SMITH, Circuit Judges, and MARBLEY, District
Judge.**

       The Government submitted to the Immigration Judge (“IJ”) two documents

from Guillermo Ernesto Guevara-Calderon’s (“Guevara’s”) record of conviction:



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.
the complaint and the docket printout. Both are cognizable for purposes of the

modified categorical approach. Shepard v. United States, 544 U.S. 13, 16 (2005);

United States v. Strickland, 601 F.3d 963, 968 (9th Cir. 2010).



      The complaint charged Guevara with unlawful possession of “a controlled

substance, to wit, cocaine (base).” The docket sheet says that Guevara pleaded

guilty to this count. There is no indication that he might have pleaded to an

amended charge. This is sufficient to establish that Guevara pleaded guilty to

possession of cocaine base. Cocaine base is a Schedule II drug, which makes

Guevara removable. 8 U.S.C. § 1227(a)(2)(B)(i); 21 U.S.C. §§ 802(6), 812(c);

United States v. Butler, 74 F.3d 916, 922 (9th Cir. 1996).



      Substantial evidence supports the IJ’s finding that Guevara’s beating by

soldiers was not on account of his political opinion, but rather because he

participated in a violent attack on the soldiers’ air force base, and therefore was not

past persecution. Kozulin v. INS, 218 F.3d 1112, 1116 (9th Cir. 2000). Even if

past persecution had created a rebuttable presumption of a well-founded fear of

future persecution, the rebuttal was sufficient. See Garcia-Martinez v. Ashcroft,

371 F.3d 1066, 1073–74 (9th Cir. 2004). Thirty years has passed since the beating,


                                           2
Guevara traveled back to El Salvador for several weeks without incident, and the

2006 country report said that there were no reports of the Salvadoran government

committing any politically motivated killings, and no reports of politically

motivated disappearances. The record supports the finding that Guevara failed to

meet the burden for withholding, for the same reasons that Guevara did not

demonstrate a well-founded fear of future persecution on account of his political

opinion. Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th Cir. 2001). Likewise, he

failed to carry his burden for Convention Against Torture relief. 8 C.F.R. §

1208.16(c)(2).



      DENIED.




                                          3
