                                                                           FILED
                            NOT FOR PUBLICATION                            APR 14 2014

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



                            FOR THE NINTH CIRCUIT


ESTEBAN BARRAGAN-ZEPEDA,                         No. 13-71296

              Petitioner,                        Agency No. A030-531-897

  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 7, 2014
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Esteban Barragan-Zepeda (“Barragan”), a lawful permanent resident,

petitions for review of the Board of Immigration Appeals’ decision affirming an

immigration judge’s determination that he was removable and denial of his

applications for asylum and cancellation of removal. We have jurisdiction




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 8 U.S.C. § 1252, and we grant the petition with respect to asylum and

cancellation of removal and remand.

                                          I

      Contrary to the government’s contention, Barragan’s removability, asylum,

and cancellation of removal claims have been exhausted. “[W]hen the BIA cites

Burbano in its decision, all issues presented before the IJ are deemed to have been

presented to the BIA.” Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th

Cir. 2008) (citing Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en

banc)). Here, Barragan raised his challenge to removability and his asylum and

cancellation of removal claims before the IJ, and the BIA cited Burbano. All

issues are therefore exhausted.

                                         II

      The IJ properly determined that Barragan was removable. Our precedent

establishes that California Health and Safety Code § 11379(a) is overbroad and

divisible. Coronado v. Holder, --- F.3d ---, 2014 WL 983621, at *4 n.3 (9th Cir.

2014); S-Yong v. Holder, 600 F.3d 1028, 1034 n.5 (9th Cir. 2010); Hernandez-

Aguilar v. Holder, 594 F.3d 1069, 1073 (9th Cir. 2010). Thus, the IJ correctly

used the modified categorical approach to determine whether the substance

involved in Barragan’s conviction was a controlled substance under the Controlled


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Substances Act. Descamps v. United States, 133 S. Ct. 2276, 2284–85 (2013);

Hernandez-Aguilar, 594 F.3d at 1073. Because Barragan’s permissible conviction

record established that the substance was methamphetamine, which is a controlled

substance under the Act, see 21 U.S.C. § 812 scheds. II(c), III(a)(3), Barragan was

removable.

                                          III

      The IJ based her determination that Barragan’s proposed social groups were

not legally cognizable on case law that pre-dated and has been distinguished and

overruled by our recent opinion in Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th

Cir. 2013) (en banc), and by the BIA’s recent opinions in Matter of W-G-R-, 26

I&N Dec. 208 (BIA 2014), and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA

2014). Accordingly, we grant the petition and remand for consideration of

Barragan’s proposed social groups of government informants and individuals who

resist gang recruitment under Henriquez-Rivas, Matter of W-G-R-, and Matter of

M-E-V-G-.

                                          IV

      Although we lack jurisdiction to review a discretionary “judgment regarding

the granting of relief under section . . . 1229b,” 8 U.S.C. § 1252(a)(2)(B)(i), we

retain jurisdiction over “constitutional claims or questions of law,” 8 U.S.C. §


                                          3
1252(a)(2)(D). Because Barragan argues that the IJ failed to consider certain

factors and the record as a whole in making her discretionary determination, we

have jurisdiction to hear his claim. Vilchez v. Holder, 682 F.3d 1195, 1200–01

(9th Cir. 2012).

       The IJ committed legal error in making her discretionary determination that

Barragan did not warrant cancellation of removal. The IJ considered

impermissible evidence of Barragan’s criminal history, failed to consider all

relevant factors in relation to his criminal history, failed to comprehensively

consider his family ties and character, and failed to consider his substantial service

to the community as a DEA informant, all of which were relevant to this case.

Xiao Fei Zheng v. Holder, 644 F.3d 829, 833–34 (9th Cir. 2011). Accordingly, we

grant the petition and remand for consideration of all relevant factors and all record

evidence.

      We need not, and do not, reach any other issues urged by the parties.

      Each party shall bear their own costs for this petition review.

      PETITION DENIED in part, GRANTED in part, and REMANDED.




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