Gustavo Felipe Perez-Lopez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO FELIPE PEREZ-LOPEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73277
Agency No. A077-099-545
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE and WATFORD, Circuit Judges.
Gustavo Felipe Perez-Lopez, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ order dismissing his appeal from
an immigration judge’s decision finding him removable and denying his
FILED
OCT 22 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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applications for asylum, withholding of removal and protection under the
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review de novo questions of law, Coronado v. Holder, 759 F.3d 977,
982 (9th Cir. 2014), and review for substantial evidence the denial of CAT relief,
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). We deny in part and
dismiss in part the petition for review.
The agency correctly determined that Perez-Lopez’ conviction under
California Health and Safety Code § 11378, for possession for purpose of sale of
methamphetamine, constitutes a drug trafficking aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B). See Coronado, 759 F.3d 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) (under the modified categorical approach, 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.”). This conviction renders him
ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii).
13-73277 2

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The agency used the correct standard and did not err in determining Perez-
Lopez’ drug trafficking offense is presumptively a particularly serious crime that
renders him ineligible for withholding of removal, see 8 U.S.C.§ 1231(b)(3)(B);
Rendon, 520 F.3d at 976 (“[A]n aggravated felony containing a drug trafficking
element is presumed to be a particularly serious crime which would make [the
applicant] ineligible for withholding of removal.”), and to the extent Perez-Lopez
challenges the agency’s determination that he has not rebutted that presumption as
a discretionary matter, we lack jurisdiction to consider that contention, see
Pechenkov v. Holder, 705 F.3d 444, 448-49 (“[8 U.S.C.] § 1252(a)(2)(D) cannot
restore jurisdiction to review a ‘particularly serious crime’ determination where”
the challenge is that the agency “incorrectly assessed the facts”).
Substantial evidence supports the agency’s denial of deferral of removal
under the CAT, where Perez-Lopez failed to show it is more likely than not he will
be tortured by or with the consent, acquiescence or willful blindness of the
government if removed to Mexico. See Silaya, 524 F.3d at 1073 .
Perez-Lopez’ remaining contentions are unavailing.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-73277 3

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