Harvey Antonio Salazar v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARVEY ANTONIO SALAZAR,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-70001
Agency No. A039-729-372
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 5, 2015**
Pasadena, California
Before: BYBEE and BEA, Circuit Judges and FOOTE,*** District Judge.
FILED
JUN 09 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).
*** The Honorable Elizabeth E. Foote, District Judge for the U.S. District
Court for the Western District of Louisiana, sitting by designation.

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Harvey Antonio Salazar petitions for review of the Board of Immigration
Appeals’s (“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”)
order of removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1).
Salazar argues the government failed to prove his conviction under
California Health & Safety Code § 11352(a) was for a crime “relating to a
controlled substance” so as to render him removable. See Mielewczyk v. Holder,
575 F.3d 992, 994–95 (9th Cir. 2009). We review the IJ’s decision because the
BIA adopted that decision without expressing disagreement with it. See
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1174 (9th Cir. 2007). The IJ
correctly applied the modified categorical approach and correctly held the criminal
information in Salazar’s case, Salazar’s plea agreement, and the trial court’s
register proved Salazar was convicted of offering to transport cocaine, which is a
crime “relating to a controlled substance.” Mielewczyk, 575 F.3d at 995–96; 21
C.F.R. § 1308.12(b)(4). Salazar was therefore removable. Mielewczyk, 575 F.3d
at 998–99.
Salazar also argues the BIA abused its discretion in denying his motion to
remand to the IJ to assert an ineffective assistance of counsel claim. Salazar did
not comply with the BIA’s procedures for asserting such a claim, see
Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013), and it is not
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“undisputed on the face of the record” that counsel was ineffective, Reyes v.
Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004). The BIA therefore did not abuse its
discretion.
DENIED.
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