                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 29 2015

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



                             FOR THE NINTH CIRCUIT


MILTON LOMELI-CAPETILLO,                         No. 10-70944

               Petitioner,                       Agency No. A037-429-761

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

               Respondent.


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

                                 January 21, 2015**

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

       Milton Lomeli-Capetillo, a native and citizen of Mexico, petitions for review

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

immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.

We review de novo questions of law. Coronado v. Holder, 759 F.3d 977, 982 (9th


          *
             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).
Cir. 2014). We deny the petition for review. We review de novo questions of law.

      As Lomeli-Capetillo conceded in his appeal brief before the BIA, an abstract

of judgment is a judicially noticeable document that can be used in a modified

categorical analysis. See Kwong v. Holder, 671 F.3d 872, 879-80 (9th Cir. 2011).

We are not persuaded by Lomeli-Capetillo’s contention that the felony complaint

is not a judicially noticeable document and cannot be used in the modified

categorical analysis. See 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.”).

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

felony complaint, taken together, show that Lomeli-Capetillo pled guilty to two

counts of violating California Health & Safety Code § 11379(a), transportation of

methamphetamine. See id.; Coronado, 759 at 984-86. Accordingly, the agency

properly concluded that the Department of Homeland Security presented clear and

convincing evidence that Lomeli-Capetillo is removable under 8 U.S.C.

§ 1227(a)(2)(B)(i).

      We deny the government’s renewed motion for remand.




                                          2                                     10-70944
      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.




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