                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 15 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
FERNANDO GUILLEN-GUTIERREZ,                      No. 13-74320

              Petitioner,                        Agency No. A092-235-199

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

              Respondent.


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

                    Argued and Submitted November 16, 2015
                            San Francisco, California

Before: THOMAS, Chief Judge and IKUTA and HURWITZ, Circuit Judges.

      Guillen-Gutierrez appeals the Board of Immigration Appeals’ (BIA)

decision that Guillen-Gutierrez is removable and not eligible for cancellation of

removal. He also appeals the BIA’s decision on the grounds that the administrative

proceedings violated his right to due process. We have jurisdiction under 8 U.S.C.

§ 1252.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Because § 11351 of the California Health & Safety Code is a divisible

statute, United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014), the

BIA correctly employed the modified categorical approach and considered both the

minute entry and plea colloquy in Guillen-Gutierrez’s case, see Nijhawan v.

Holder, 557 U.S. 29, 35 (2009). These documents establish that Guillen-Gutierrez

was convicted for possession for sale of cocaine under § 11351, which is an

“aggravated felony” drug trafficking offense.1 See Perez-Mejia v. Holder, 663

F.3d 403, 414 (9th Cir. 2011). The fact that Guillen-Gutierrez’s criminal

complaint charged him with a different offense does not alter this conclusion, in

light of California’s informal amendment doctrine. See People v. Sandoval, 140

Cal. App. 4th 111, 132–33 (2006). Because Guillen-Gutierrez was convicted of an

aggravated felony, the BIA did not err in determining that he was removable under

8 U.S.C. § 1227(a)(2)(A)(iii), and that he was not eligible for cancellation of

removal under 8 U.S.C. § 1229b(a). See Fuentes v. Lynch, 788 F.3d 1177, 1183

(9th Cir. 2015).

      We lack jurisdiction over Guillen-Gutierrez’s argument that the

administrative proceedings violated his due process rights because Guillen-

      1
       Although the BIA opinion refers to Guillen-Gutierrez’s conviction for
“possession for sale of cocaine base,” this scrivener’s error is harmless. See Szalai
v. Holder, 572 F.3d 975, 982 (9th Cir. 2009).

                                          2
Gutierrez did not administratively exhaust the claims. See 8 U.S.C. § 1252(d)(1);

Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir. 2014). Nor did Guillen-

Gutierrez administratively exhaust his claim that the Immigration Judge erred in

holding that he was removable for being convicted of a controlled substance

violation.

PETITION DENIED IN PART AND DISMISSED IN PART.




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