Rafael Alexander Gutierrez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL ALEXANDER GUTIERREZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-70895
Agency No. A094-146-792
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Rafael Alexander Gutierrez, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
remand and dismissing his appeal from an immigration judge’s decision denying
his applications for asylum, withholding of removal, protection under the
FILED
JAN 27 2016
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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Convention Against Torture, special rule cancellation of removal under the
Nicaraguan Adjustment and Central American Relief Act (“NACARA”), and
voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
de novo questions of law, Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012),
and review for abuse of discretion the denial of a motion to remand, Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny in part and dismiss in part
the petition for review.
Because § 11351 of the California Health & Safety Code is divisible as to
the substance involved, the agency properly employed the modified categorical
approach by considering both the certificate and order of the magistrate judge and
the felony complaint in Gutierrez’s case. See United States v. Torre-Jimenez, 771
F.3d 1163, 1166-67 (9th Cir. 2014). These documents establish that Gutierrez’s
conviction was for possession for sale or purchase for sale of heroin under §
11351, which is a drug trafficking aggravated felony under 8 U.S.C. §
1101(a)(43)(B) that renders him ineligible for NACARA relief, asylum, and
withholding of removal. See 21 U.S.C. § 812(c), sched. I(b)(10); Rendon v.
Mukasey, 520 F.3d 967, 976 (9th Cir. 2008) (possession of a controlled substance
with the intent to sell contains a trafficking element and is an aggravated felony,
and is presumed to be a particularly serious crime rendering an applicant ineligible
14-70895 2

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for withholding of removal); 8 C.F.R. § 1240.66(a) (NACARA); 8 U.S.C. §
1158(b)(2)(A)(ii) (asylum). Unlike Medina-Lara v. Holder, 771 F.3d 1106, 1113-
15 (9th Cir. 2014), the record of conviction is not ambiguous as to the controlled
substance involved. We do not reach Gutierrez’s other contentions regarding the
merits of his applications for NACARA relief, asylum, and withholding of removal
in light of this disposition.
The BIA did not abuse its discretion in denying Gutierrez’s motion to
remand, where his appeal brief did not raise any challenge with regard to voluntary
departure. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc)
(explaining that issues raised in the notice of appeal but not argued in an
appellant’s principal brief are deemed abandoned). Furthermore, we lack
jurisdiction to consider his unexhausted contentions regarding voluntary departure
in the first instance. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
14-70895 3

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