Arturo Villa Rodriguez v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTURO VILLA RODRIGUEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-71562
Agency No. A077-973-372
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2013**
Pasadena, California
Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.
Petitioner Arturo Villa Rodriguez petitions for review of the Board of
Immigration Appeals decision dismissing his appeal. The BIA affirmed the denial
of Villa Rodriguez’s application for an adjustment of status on the ground that he
FILED
MAR 01 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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did not qualify for a waiver under INA § 212(h) of his prior conviction for a
controlled substance offense. 8 U.S.C. § 1182(h). We agree with the BIA that
Villa Rodriguez did not qualify for the section 212(h) waiver and therefore deny
his petition for review.
An individual convicted of a controlled substances offense may qualify for a
section 212(h) waiver only if the conviction was for “a single offense of simple
possession of 30 grams or less of marijuana.” INA § 212(h), 8 U.S.C. § 1182(h).
Villa Rodriguez failed to demonstrate that his conviction under California Health
and Safety Code § 11360(a) – which pertains to the transport, import, sale,
furnishing, administering, and giving away of marijuana – was a conviction for
simple possession of marijuana.
In Young v. Holder, 697 F.3d 976, 988–90 (9th Cir. 2012) (en banc), we held
that a noncitizen bears the burden of showing eligibility for cancellation of
removal. This case concerns a waiver of inadmissibility rather than cancellation of
removal, but the same principle applies here, because Villa Rodriguez’s ultimate
goal was to avoid removal, and a section 212(h) waiver is a “benefit or privilege.”
Id. at 988 (quoting 8 C.F.R. § 1240.8(d)). It was therefore Villa Rodriguez’s
burden to demonstrate his eligibility for the section 212(h) wavier.

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The inconclusive record of conviction failed to satisfy Villa Rodriguez’s
burden. See id. at 989 (“[A]n inconclusive record of conviction does not
demonstrate eligibility for cancellation of removal.”). The only judicially
noticeable document in the record, see Aguilar-Turcios v. Holder, 691 F.3d 1025,
1032 (9th Cir. 2012), the complaint, merely tracked the language of section
11360(a). It gave no indication of the facts on which Villa Rodriguez’s conviction
necessarily rested. See id.; see also Young, 697 F.3d at 990.
Having concluded that Villa Rodriguez did not qualify for a section 212(h)
waiver because he failed to establish that he was convicted of simple possession of
marijuana, we need not reach the issues of whether the BIA erred in concluding
that the amount of marijuana in issue was not less than 30 grams, and whether
Villa Rodriguez was convicted of an aggravated felony.
PETITION DENIED.

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