                                                                            FILED
                             NOT FOR PUBLICATION                            OCT 22 2015

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



                             FOR THE NINTH CIRCUIT


GUSTAVO FELIPE PEREZ-LOPEZ,                      No. 13-73277

               Petitioner,                       Agency No. A077-099-545

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted October 14, 2015**

Before:        SILVERMAN, BYBEE and WATFORD, Circuit Judges.

      Gustavo Felipe Perez-Lopez, a native and citizen of Mexico, petitions pro se

for review of the Board of Immigration Appeals’ order dismissing his appeal from

an immigration judge’s decision finding him removable and denying his




          *
             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).
applications for asylum, withholding of removal and protection under the

Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review de novo questions of law, Coronado v. Holder, 759 F.3d 977,

982 (9th Cir. 2014), and review for substantial evidence the denial of CAT relief,

Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). We deny in part and

dismiss in part the petition for review.

      The agency correctly determined that Perez-Lopez’ conviction under

California Health and Safety Code § 11378, for possession for purpose of sale of

methamphetamine, constitutes a drug trafficking aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B). See Coronado, 759 F.3d at 984-86 (holding that similarly

structured statute, Cal. Health & Safety Code § 11377(a), is divisible and subject to

the modified categorical approach); Cabantac v. Holder, 736 F.3d 787, 793-94 (9th

Cir. 2013) (per curiam) (under the modified categorical approach, where “the

abstract of judgment or minute order specifies that a defendant pleaded guilty to a

particular count of the criminal complaint or indictment, we can consider the facts

alleged in that count”); Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir. 2008)

(“[P]ossession of a controlled substance with the intent to sell contains a

trafficking element and is an aggravated felony.”). This conviction renders him

ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii).


                                           2                                   13-73277
      The agency used the correct standard and did not err in determining Perez-

Lopez’ drug trafficking offense is presumptively a particularly serious crime that

renders him ineligible for withholding of removal, see 8 U.S.C.§ 1231(b)(3)(B);

Rendon, 520 F.3d at 976 (“[A]n aggravated felony containing a drug trafficking

element is presumed to be a particularly serious crime which would make [the

applicant] ineligible for withholding of removal.”), and to the extent Perez-Lopez

challenges the agency’s determination that he has not rebutted that presumption as

a discretionary matter, we lack jurisdiction to consider that contention, see

Pechenkov v. Holder, 705 F.3d 444, 448-49 (“[8 U.S.C.] § 1252(a)(2)(D) cannot

restore jurisdiction to review a ‘particularly serious crime’ determination where”

the challenge is that the agency “incorrectly assessed the facts”).

      Substantial evidence supports the agency’s denial of deferral of removal

under the CAT, where Perez-Lopez failed to show it is more likely than not he will

be tortured by or with the consent, acquiescence or willful blindness of the

government if removed to Mexico. See Silaya, 524 F.3d at 1073 .

      Perez-Lopez’ remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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