Andrew Usher v. Loretta E. Lynch

609 F. App'x 521

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2015
• Docket: 14-71734
• Status: Unpublished

Opinion

MEMORANDUM **

Andrew Mark Anthony Usher, a native and citizen of Jamaica, petitions for review of the BIA’s decision ordering him removed and finding him ineligible for relief from removal. Usher challenges the BIA’s determination that his conviction for attempted possession for sale of marijuana constitutes a “crime involving moral turpitude.” Usher also challenges the BIA’s determination that his conviction constitutes a “particularly serious crime” rendering him ineligible for asylum and withholding of removal.

1. Finding Usher removable based on his conviction for both an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and a violation relating to a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i), the BIA did not order Usher removed for having committed a crime involving moral turpitude. Because the BIA did not reach this issue, this court lacks jurisdiction to review it. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.2010).

2. Because Usher raises a legal question challenging whether his offense constitutes a “particularly serious crime” in light of “evolving societal standards” about marijuana, we have jurisdiction to review this portion of the petition. See Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir.2011) (en banc). The BIA did not abuse its discretion when adopting the IJ’s conclusion — based on Usher’s testimony, the police report, and the pre-sentence investigation report — that the circumstances of Usher’s conviction did not rebut the presumption that trafficking in marijuana is a particularly serious crime. See Arbid v. Holder, 700 F.3d 379, 385 (9th Cir.2012) (per curiam); Matter of Y-L-, 23 I. & N. Dec. 270 (A.G.2002).

DISMISSED IN PART, DENIED IN PART.

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