                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 27 2016

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



                             FOR THE NINTH CIRCUIT


RAFAEL ALEXANDER GUTIERREZ,                      No. 14-70895

               Petitioner,                       Agency No. A094-146-792

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

               Respondent.


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

                             Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      Rafael Alexander Gutierrez, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

remand and dismissing his appeal from an immigration judge’s decision denying

his applications for asylum, withholding of removal, protection under the


          *
             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).
Convention Against Torture, special rule cancellation of removal under the

Nicaraguan Adjustment and Central American Relief Act (“NACARA”), and

voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

de novo questions of law, Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012),

and review for abuse of discretion the denial of a motion to remand, Movsisian v.

Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny in part and dismiss in part

the petition for review.

      Because § 11351 of the California Health & Safety Code is divisible as to

the substance involved, the agency properly employed the modified categorical

approach by considering both the certificate and order of the magistrate judge and

the felony complaint in Gutierrez’s case. See United States v. Torre-Jimenez, 771

F.3d 1163, 1166-67 (9th Cir. 2014). These documents establish that Gutierrez’s

conviction was for possession for sale or purchase for sale of heroin under §

11351, which is a drug trafficking aggravated felony under 8 U.S.C. §

1101(a)(43)(B) that renders him ineligible for NACARA relief, asylum, and

withholding of removal. See 21 U.S.C. § 812(c), sched. I(b)(10); Rendon v.

Mukasey, 520 F.3d 967, 976 (9th Cir. 2008) (possession of a controlled substance

with the intent to sell contains a trafficking element and is an aggravated felony,

and is presumed to be a particularly serious crime rendering an applicant ineligible


                                           2                                    14-70895
for withholding of removal); 8 C.F.R. § 1240.66(a) (NACARA); 8 U.S.C. §

1158(b)(2)(A)(ii) (asylum). Unlike Medina-Lara v. Holder, 771 F.3d 1106, 1113-

15 (9th Cir. 2014), the record of conviction is not ambiguous as to the controlled

substance involved. We do not reach Gutierrez’s other contentions regarding the

merits of his applications for NACARA relief, asylum, and withholding of removal

in light of this disposition.

       The BIA did not abuse its discretion in denying Gutierrez’s motion to

remand, where his appeal brief did not raise any challenge with regard to voluntary

departure. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc)

(explaining that issues raised in the notice of appeal but not argued in an

appellant’s principal brief are deemed abandoned). Furthermore, we lack

jurisdiction to consider his unexhausted contentions regarding voluntary departure

in the first instance. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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