                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 02 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARIO ORTEGA,                                    No. 08-71045

              Petitioner,                        Agency No. A092-329-282

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,

              Respondent.



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

                            Submitted January 17, 2012 **
                              San Francisco, California

Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.

       Mario Ortega petitions for review of the Board of Immigration Appeals’

(BIA) final order finding Ortega ineligible for cancellation of removal under

§ 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a), as an alien




        *
             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).
convicted of an aggravated felony, specifically his 1992 conviction for possession

of cocaine base for sale in violation of California Health and Safety Code

§ 11351.5. Because the parties are familiar with the factual and procedural history

of this case, we repeat only those facts necessary to resolve the issues raised on

appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny Ortega’s

petition for review.

      Ortega first argues that the BIA erred in relying on the document entitled,

“Disposition of Arrest and Court Action,” to establish that Ortega was convicted of

possession of cocaine base for sale. In relying on the Disposition of Arrest and

Court Action, the BIA cited to 8 C.F.R. § 1003.41(d), which provides that in a

proceeding before an immigration judge, “[a]ny other evidence that reasonably

indicates the existence of a criminal conviction may be admissible as evidence

thereof.” The Disposition of Arrest and Court Action reasonably indicated that

Ortega was convicted of violating § 11351.5, and Ortega did not present any

evidence contradicting or discrediting this evidence. See Rojas-Garcia v. Ashcroft,

339 F.3d 814, 823 (9th Cir. 2003) (holding that the sole test for admission of

evidence in immigration proceedings is whether the evidence is probative and its

admission is fundamentally fair). Thus, it was not error for the BIA to consider the




                                           2
Disposition of Arrest and Court Action as evidence of Ortega’s conviction for

possession of cocaine base for sale.

      The cases cited by Ortega do not compel a contrary result; instead, they

establish that certain documents may be insufficient to demonstrate that a

particular conviction constitutes an aggravated felony when using the “modified

categorical” approach. See Penuliar v. Aschroft, 435 F.3d 961, 968-69 (9th Cir.

2006); Martinez-Perez v. Ashcroft, 417 F.3d 1022, 1028-29 (9th Cir. 2005); Li v.

Ashcroft, 389 F.3d 892, 898 (9th Cir. 2004). A modified categorical analysis is not

required here because the full range of conduct covered by § 11351.5 falls within

the meaning of an aggravated felony. See United States v. Morales-Perez, 467

F.3d 1219, 1223 (9th Cir. 2006) (holding that the federal crime of attempted

possession of a controlled substance with the intent to sell encompasses the

California-defined crime of purchasing cocaine base for purposes of sale). No

additional documentation was required to establish that Ortega’s conviction

constituted an aggravated felony.

      Ortega’s second challenge—that relief under 8 U.S.C. § 1182(c) should

extend to his 2004 offense, which was committed after the passage of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110

Stat. 3009-546—is belied by the plain language of the statute. See INS v. St. Cyr,


                                          3
533 U.S. 289, 297 (2001) (IIRIRA, “inter alia, repealed § 212(c), see § 304(b), 110

Stat. 3009-597, and replaced it with a new section that gives the Attorney General

the authority to cancel removal for a narrow class of inadmissible or deportable

aliens, see id., at 3009-594 (creating 8 U.S.C. § 1229b (1994 ed., Supp. V))”).

Even if Ortega could have obtained a § 212(c) waiver for his 1992 conviction, his

2004 conviction post-dates IIRIRA, thus making him ineligible for § 212(c) relief.

Consequently, the BIA did not err when it concluded that Ortega remained

removable as charged based upon his 1992 and 2004 controlled substance

convictions.

      PETITION DENIED.




                                          4
