Jorge Rodriguez Rea v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2020
• Docket: 17-70229
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE RODRIGUEZ REA, No. 17-70229

Petitioner, Agency No. A091-719-640

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Jorge Rodriguez Rea, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying voluntary departure. We have jurisdiction

under 8 U.S.C. § 1252. We review de novo questions of law. Cabantac v. Holder,

736 F.3d 787, 792 (9th Cir. 2013). We deny the petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The agency did not err in concluding that California Health and Safety Code

(“CHSC”) § 11377(a) is divisible and in applying the modified categorical

approach to determine that Rodriguez Rea’s conviction is an offense relating to a

controlled substance that makes him ineligible for voluntary departure. See

8 U.S.C. §§ 1229c(b)(1)(B), 1101(f)(3), 1182(a)(2)(A)(i)(II); Coronado v. Holder,

759 F.3d 977, 984-85 (9th Cir. 2014) (holding that CHSC § 11377(a) is divisible

and subject to the modified categorical approach); United States v. Martinez-

Lopez, 864 F.3d 1034, 1040-41 (9th Cir. 2017) (en banc) (holding that a similar

California controlled substance statute is divisible with respect to the listed

substances). Rodriguez Rea asks us to reconsider Martinez-Lopez, but we are

bound by that decision given the absence of any “intervening higher authority” that

is “clearly irreconcilable” with it. See Miller v. Gammie, 335 F.3d 889, 892-93

(9th Cir. 2003) (en banc).

We deny Rodriguez Rea’s request to remand in light of United States v.

Rodriguez-Gamboa, 972 F.3d 1148, 1154 (9th Cir. 2020).

On May 17, 2017, the court granted a stay of removal. The stay of removal

remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.

2 17-70229