AVIGAIL LEYNES PARAS, AKA Avigail Paras v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AVIGAIL LEYNES PARAS, AKA
Avigail Paras,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-71622
Agency No. A042-421-832
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Avigail Leynes Paras, a native and citizen of the Philippines, petitions pro se
for review of the Board of Immigration Appeals’ order affirming, without opinion,
an immigration judge’s decision determining that Paras failed to establish
derivative citizenship, and that Paras is removable. Our jurisdiction is governed by
FILED
DEC 14 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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8 U.S.C. § 1252. We review de novo constitutional challenges and questions of
law. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We deny in
part and dismiss in part the petition for review.
To prevail on her derivative citizenship claim, Paras must show by a
preponderance of the evidence that “there has been a legal separation of the
[biological] parents.” See 8 U.S.C. § 1432(a)(3) (repealed 2000). We conclude
that because Paras has not established that her parents had married, she cannot
show that they legally separated, and therefore her derivative citizenship claim
fails. See Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir. 2003) (holding
that a petitioner did not “enjoy derivative citizenship under . . . [8 U.S.C.]
§ 1432(a)(3) because his natural parents never married and thus could not legally
separate” (emphasis in original)).
Paras’s equal protection challenges to former 8 U.S.C. § 1432(a) are
foreclosed by our holdings in Barthelemy v. Ashcroft. See id. at 1066-68 (legal
separation requirement had rational basis because it was consistent with
§ 1432(a)’s general statutory scheme to protect parental rights; § 1432(a)(3) does
not discriminate on the basis of sex where a child is legitimated, because in that
case, neither the child’s father nor mother could pass citizenship onto a child unless
both parents naturalized, one parent had died, or the parents legally separated and
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the naturalized parent retained legal custody of the child). We reject Paras’s
contention that the court in Barthelemy misapplied deference under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The agency correctly determined that Paras’s conviction under California
Health and Safety Code § 11378, for possession for purpose of sale of
methamphetamine, constitutes a controlled substance trafficking aggravated felony
under 8 U.S.C. § 1101(a)(43)(B) that renders her removable. See Padilla-
Martinez, 770 F.3d at 831 n.3 (Cal. Health & Safety Code § 11378 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”); Rendon
v. Mukasey, 520 F.3d 967, 976 (9th Cir. 2008) (“[P]ossession of a controlled
substance with the intent to sell contains a trafficking element and is an aggravated
felony.”).
Paras failed to exhaust her contention regarding her plea of nolo contendere.
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).
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In light of this disposition we do not reach Paras’s remaining contention.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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