MEMORANDUM

Ricardo Zavala-Ramirez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252 . We review de novo questions of law, Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004), and for substantial evidence the agency’s factual findings, Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1092 (9th Cir.2005). We deny the petition for review.

Zavala-Ramirez’s conviction for violating Cal. Health and Safety Code § 11378 is an aggravated felony under 8 U.S.C. § 1101 (a)(43)(B). See Cazarez-Gutierrez, 382 F.3d at 919 (a state drug offense is an aggravated felony for immigration purposes if it contains a trafficking element). Contrary to Zavala-Ramirez’s contention, the record of conviction establishes that he was convicted of selling methamphetamine. See Shepard v. United States, 544 U.S. 13, 16 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005) (charging document and transcript of plea colloquy may be used for modified categorical analysis).

The agency properly denied Zavala-Ramirez’s claim to derivative citizenship where Zavala-Ramirez’s United States citizen mother testified that she was not physically present in the United States for the requisite five years after turning 14 in order to pass citizenship to Zavala-Ramirez. See 8 U.S.C. § 1401 (a)(7) (1959) (a person shall be a citizen of the United States at birth who is “born outside the geographical limits of the United States ... of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States ... for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years”). It follows that Zavala-Ramirez’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process claim).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.