                                                                             FILED
                             NOT FOR PUBLICATION                             DEC 14 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


AVIGAIL LEYNES PARAS, AKA                        No. 14-71622
Avigail Paras,
                                                 Agency No. A042-421-832
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Avigail Leynes Paras, a native and citizen of the Philippines, petitions pro se

for review of the Board of Immigration Appeals’ order affirming, without opinion,

an immigration judge’s decision determining that Paras failed to establish

derivative citizenship, and that Paras is removable. Our jurisdiction is governed by

          *
             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).
8 U.S.C. § 1252. We review de novo constitutional challenges and questions of

law. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We deny in

part and dismiss in part the petition for review.

      To prevail on her derivative citizenship claim, Paras must show by a

preponderance of the evidence that “there has been a legal separation of the

[biological] parents.” See 8 U.S.C. § 1432(a)(3) (repealed 2000). We conclude

that because Paras has not established that her parents had married, she cannot

show that they legally separated, and therefore her derivative citizenship claim

fails. See Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir. 2003) (holding

that a petitioner did not “enjoy derivative citizenship under . . . [8 U.S.C.]

§ 1432(a)(3) because his natural parents never married and thus could not legally

separate” (emphasis in original)).

      Paras’s equal protection challenges to former 8 U.S.C. § 1432(a) are

foreclosed by our holdings in Barthelemy v. Ashcroft. See id. at 1066-68 (legal

separation requirement had rational basis because it was consistent with

§ 1432(a)’s general statutory scheme to protect parental rights; § 1432(a)(3) does

not discriminate on the basis of sex where a child is legitimated, because in that

case, neither the child’s father nor mother could pass citizenship onto a child unless

both parents naturalized, one parent had died, or the parents legally separated and


                                            2                                    14-71622
the naturalized parent retained legal custody of the child). We reject Paras’s

contention that the court in Barthelemy misapplied deference under Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

      The agency correctly determined that Paras’s conviction under California

Health and Safety Code § 11378, for possession for purpose of sale of

methamphetamine, constitutes a controlled substance trafficking aggravated felony

under 8 U.S.C. § 1101(a)(43)(B) that renders her removable. See Padilla-

Martinez, 770 F.3d at 831 n.3 (Cal. Health & Safety Code § 11378 is divisible and

subject to the modified categorical approach); Cabantac v. Holder, 736 F.3d 787,

793-94 (9th Cir. 2013) (per curiam) (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.”).

      Paras failed to exhaust her contention regarding her plea of nolo contendere.

See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks

jurisdiction to consider legal claims not presented in an alien’s administrative

proceedings before the agency).


                                           3                                     14-71622
In light of this disposition we do not reach Paras’s remaining contention.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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