The panel unanimously concludes this case is suitable for decision *

without oral argument. See Fed. R. App. P. 34(a)(2).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAMON MACIAS-CARREON,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 10-70380

Agency No.

A072-300-102

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 8, 2013*

Pasadena, California

Filed May 30, 2013

Before: John T. Noonan, Kim McLane Wardlaw,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia
2 MACIAS-CARREON V. HOLDER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Immigration

The panel denied Ramon Macias-Carreon’s petition for

review of the Board of Immigration Appeals’ decision finding

that his conviction for possession of marijuana for sale, in

violation of California Health & Safety Code § 11359, is

categorically a crime relating to a controlled substance.

The panel found that Macias-Carreon failed to meet his

burden of proving a “realistic probability” that California

would apply § 11359 to conduct not related to a controlled

substance, and held that the conviction is thus a categorical

crime relating to a controlled substance under the

Immigration and Nationality Act. 

COUNSEL

Elsa Ines Martinez, Law Offices of Elsa Martinez, PLC, Los

Angeles, California, for Petitioner.

Matt Crapo, Department of Justice, Civil Division,

Washington, D.C., for Respondent.
MACIAS-CARREON V. HOLDER 3

OPINION

MURGUIA, Circuit Judge:

We have held that California Health & Safety Code

§ 11359 is categorically a “controlled substance offense” for

sentencing purposes. United States v. Sandoval-Venegas,

292 F.3d 1101, 1107 (9th Cir. 2002). We now hold that

§ 11359 is categorically a crime “relating to a controlled

substance” under the Immigration and Nationality Act.

I. Background

Petitioner Ramon Macias-Carreon, a native and citizen of

Mexico, entered the United States in 1988 without inspection

and without being admitted or paroled. On July 1, 1992,

Macias-Carreon pled guilty in California state court to

violating California Health & Safety Code § 11359 and was

sentenced to 120 days imprisonment and three years of

probation. Section 11359 provides that “[e]very person who

possesses for sale any marijuana . . . shall be punished by

imprisonment.”

On February 20, 2007, the Department of Homeland

Security served Macias-Carreon with a Notice to Appear

(“NTA”). The NTA alleged Macias-Carreon was removable

pursuant to (1) 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present

in the United States without being admitted or paroled and (2)

8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of

violating a law relating to a controlled substance. The latter

charge was based on Macias-Carreon’s 1992 conviction

under California Health & Safety Code § 11359 for

possessing marijuana for purposes of sale: marijuana is a

“controlled substance” under federal law. 21 U.S.C. § 812,
4 MACIAS-CARREON V. HOLDER

Schedule I (c)(10); see also id. § 802(6). An immigration

judge found Macias-Carreon was removable on both charges

alleged in the NTA.

Macias-Carreon appealed to the Board of Immigration

Appeals (“BIA”), where he proposed that California Health

& Safety Code § 11359 prohibits the possession not only of

marijuana for purposes of sale, but the possession for

purposes of sale of other drugs that are not “controlled

substances” under federal law. Thus, Macias-Carreon argued,

§ 11359 is a divisible statute and the government could not

meet its burden of proving under the modified categorical

approach that he had violated a law relating to a controlled

substance. Macias-Carreon also asked the BIA to remand his

case because, absent a conviction for a crime relating to a

controlled substance, he was eligible to adjust his status. See

8 U.S.C. § 1229b(b)(1). The BIA determined that § 11359 is

categorically a crime relating to a controlled substance and

denied Macias-Carreon’s motion to remand.

Macias-Carreon petitions for review, again contending

that § 11359 is not categorically a crime relating to a

controlled substance. We have jurisdiction pursuant to

8 U.S.C. § 1252.

II. Discussion

We review de novo the BIA’s interpretation of an alien’s

statute of conviction. Nunez v. Holder, 594 F.3d 1124, 1129

(9th Cir. 2010). When conducting a categorical analysis, we

compare the alien’s statute of conviction with the federal

ground for removal to determine whether conduct proscribed

by the statute categorically falls within the range of conduct
MACIAS-CARREON V. HOLDER 5

covered by the federal ground. Sanchez-Avalos v. Holder,

693 F.3d 1011, 1014 (9th Cir. 2012).

California Health & Safety Code § 11359 prohibits the

possession of marijuana for purposes of sale, and marijuana

is a controlled substance under federal law. MaciasCarreon’s assertion that someone could be convicted of

violating § 11359 without possessing marijuana for purposes

of sale is facially implausible and unaccompanied by a single

citation to a case in which this has occurred. Accordingly, he

fails to meet his burden of proving a “realistic probability”

that California would apply § 11359 to conduct not related to

a controlled substance. See Gonzalez-Cervantes v. Holder,

709 F.3d 1265, 1266 (9th Cir. 2013)(internal quotation marks

omitted). Just as § 11359 is categorically a “controlled

substance offense” for sentencing purposes, SandovalVenegas, 292 F.3d at 1107, it is categorically a crime

“relating to a controlled substance” for immigration purposes.

PETITION DENIED.