Opinion
No. 13-72340
08-03-2016
EDGAR GABRIEL GONZALEZ, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A095-013-211 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Edgar Gabriel Gonzalez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' order dismissing his appeal from an immigration judge's decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc), and we deny the petition for review.
The agency correctly concluded that Gonzalez's California Health & Safety Code § 11550(a) conviction remains a conviction for immigration purposes. Gonzalez's contention that the dismissal of his conviction under California Penal Code § 1203.4 eliminates the immigration consequences is foreclosed by our decision in Nunez-Reyes, 646 F.3d at 695 ("Being under the influence is not a lesser crime than simple possession" and "is not a possession crime at all, and it is thus qualitatively different from any federal conviction for which [Federal First Offender Act] treatment would be available."). Gonzalez's contention that the relevant portion of Nunez-Reyes should not apply retroactively is also foreclosed by the decision itself. See id. at 695 & n.7.
It follows that Gonzalez failed to establish a due process violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must show error and prejudice).
PETITION FOR REVIEW DENIED.