                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             MAR 17 2010

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

ANDRES GARCIA-RUESGA, aka                        No. 07-73531
Andres Ruesga,
                                                 Agency No. A035-705-787
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

              Respondent.


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

                            Submitted March 12, 2010**
                             San Francisco, California

Before: HUG and BYBEE, Circuit Judges, and GWIN, *** District Judge.

       Petitioner Andres Garcia-Ruesga petitions for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing his appeal of an Immigration


        *
             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).
        ***
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Judge’s decision ordering him removed to Mexico. He argues that his conviction

for “sale/transportation/offer to sell controlled substance” in violation of California

Health and Safety Code Section 11352(a) does not render him removable under 8

U.S.C. § 1227(a)(2)(B)(i). We hold that the BIA correctly determined that Garcia-

Ruesga committed a removable offense, and dismiss his petition for review for

lack of jurisdiction.

      An alien is removable if, after admission into the United States, he is

“convicted of a violation of (or a conspiracy or attempt to violate) any law or

regulation of a State . . . relating to a controlled substance (as defined in Section

802 of Title 21) . . . .” 8 U.S.C. § 1227(a)(2)(B)(i). In 2004, Garcia-Ruesga was

convicted under California Health and Safety Code Section 11352(a), which

punishes a person “who transports, imports into this state, sells, furnishes,

administers, or gives away, or offers to transport, import into this state, sell,

furnish, administer or give away, or attempts to import into this state or transport

[ ] any controlled substance specified in [various provisions].” CAL. HEALTH &

SAFETY CODE § 11352(a) (emphasis added). In order to determine whether

Garcia-Ruesga’s California conviction qualifies under this removal statute, we use

“the analytical model constructed by the Supreme Court in Taylor v. United States,

495 U.S. 575 [(1990)].” Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009).


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      Under the categorical approach, California Health and Safety Code Section

11352(a) does not meet the requirements for removability under 8 U.S.C.

§ 1227(a)(2)(B)(i) because the California statute includes controlled substances not

covered by the federal Controlled Substances Act. See id. at 995. However, under

the modified categorical approach, the indictment from Garcia-Ruesga’s California

case clearly demonstrates that the controlled substance involved in Garcia-

Ruesga’s crime was cocaine, which is covered by the Controlled Substances Act.

See 21 U.S.C. §§ 802(6), 812 Schedule II(a)(4).

      Garcia-Ruesga does not dispute that he was convicted of an offense

involving a federally controlled substance, and argues only that because the

California statute covers solicitation to commit a controlled substance violation,

see CAL. HEALTH & SAFETY CODE § 11352(a), and because the conviction

documents do not clarify whether he was convicted of solicitation, the government

has not established that Garcia-Ruesga was convicted of a controlled substance

offense as defined in 8 U.S.C. § 1227(a)(2)(B)(i). He is incorrect. We explicitly

held in Mielewczyk that a conviction under the exact California statute at issue in

Garcia-Ruesga’s case renders an alien removable under 8 U.S.C.

§ 1227(a)(2)(B)(i) because the California statute is not a generic solicitation statute

but rather a statute that, “by its own terms[,] is a state law ‘relating to a controlled


                                            3
substance.’” 575 F.3d at 993; cf. Coronado-Durazo v. INS, 123 F.3d 1322, 1324

(9th Cir. 1997) (holding that petitioner’s state conviction under a generic

solicitation statute did not render him removable under 8 U.S.C.

§ 1227(a)(2)(B)(i)).

      Thus, under Mielewczyk, Garcia-Ruesga’s California offense qualifies as a

violation of a law “relating to a controlled substance” under the modified

categorical approach, making Garcia-Ruesga removable under 8 U.S.C.

§ 1227(a)(2)(B)(i). And because Garcia-Ruesga has not raised any other

constitutional claims or questions of law, see 8 U.S.C. § 1252(a)(2)(D), his

removability under 8 U.S.C. § 1227(a)(2)(B)(i) strips this court of jurisdiction over

his petition for review, see 8 U.S.C. § 1252(a)(2)(C); Luu-Le v. INS, 224 F.3d 911,

914, 916 (9th Cir. 2000).

      DISMISSED.




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