                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 30 2015

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



                             FOR THE NINTH CIRCUIT


JOSE LOMELI BECERRA,                             No. 10-73201

               Petitioner,                       Agency No. A092-122-323

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

               Respondent.


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

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Jose Lomeli Becerra, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s removal order. 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.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo questions of law. Coronado v. Holder, 759 F.3d 977, 982 (9th

Cir. 2014). We deny the petition for review.

      Under the modified categorical approach, the abstract of judgment and the

felony complaint, considered together, establish by clear and convincing evidence

that Lomeli Becerra pleaded guilty to possession for sale and purchase for sale of

cocaine under California Health & Safety Code § 11351. See id. at 984-86;

Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir. 2013) (per curiam) (“[Where]

the abstract of judgment or minute order specifies that a defendant pleaded guilty

to a particular count of the criminal complaint or indictment, we can consider the

facts alleged in that count.”). Accordingly, the agency properly concluded that

Lomeli Becerra is removable for having committed an offense “relating to a

controlled substance.” 8 U.S.C. § 1227(a)(2)(B)(i).

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

      PETITION FOR REVIEW DENIED.




                                          2                                  10-73201
