Cesar Eduardo Perez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR EDUARDO PEREZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73226
Agency No. A089-325-825
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Cesar Eduardo Perez, 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. Our jurisdiction is governed by 8 U.S.C.
FILED
NOV 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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§ 1252. We review de novo questions of law. Coronado v. Holder, 759 F.3d 977,
982 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.
Under the modified categorical approach, the criminal complaint and minute
order, considered together, establish by clear and convincing evidence that Perez
pleaded guilty to the sale of methamphetamine under California Health & Safety
Code § 11379(a). See id. at 984-86 (holding that similarly structured statute, Cal.
Health & Safety Code § 11377(a), is divisible and subject to the modified
categorical approach); 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 Perez is removable for having committed an
offense “relating to a controlled substance.” 8 U.S.C. § 1227(a)(2)(B)(i).
Perez contends that this court’s decision in Coronado v. Holder should be
reexamined, but in the absence of an intervening Supreme Court or en banc
decision, “[a] three-judge panel cannot reconsider or overrule circuit precedent.”
Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011).
Perez contends that the criminal court’s reference, in post-conviction
proceedings, to Perez’ arrest report casts doubt on whether his conviction involved
13-73226 2

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a federally-controlled substance and that, accordingly, the agency could not
identify the controlled substance involved without reviewing the related police
report. This argument fails because the criminal court did not incorporate the
arrest report into the record of conviction and, therefore, the agency properly
concluded that it could not consider it. See Fregozo v. Holder, 576 F.3d 1030,
1033 n.1 (9th Cir. 2009) (where police reports were not incorporated by reference
into petitioner’s plea or the record of conviction, they could not be considered
under the modified categorical approach).
We lack jurisdiction to consider Perez’ unexhausted contention that the
federal and California definitions of methamphetamine are not coextensive. See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction
to consider legal claims not presented in an alien’s administrative proceedings
before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-73226 3

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