Roel Sterling v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 15-70237
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROEL ROBERTO STERLING, AKA Roel No. 15-70237 R. Sterling, AKA Roel Roberto Sterling Jackson, Agency No. A098-060-136

Petitioner, MEMORANDUM* v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Roel Roberto Sterling, a native and citizen of Costa Rica, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

remand and dismissing his appeal from an immigration judge’s decision denying

his application for cancellation of removal. Our jurisdiction is governed by

* 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). 8 U.S.C. § 1252. We review de novo questions of law. Mohammed v. Gonzales,

400 F.3d 785, 791-92 (9th Cir. 2005). We review for abuse of discretion the denial

of a motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).

We deny in part and dismiss in part the petition for review.

Sterling’s contention that his conviction under California Health & Safety

Code (“CHSC”) § 11359(a) is not an aggravated felony is foreclosed by Roman-

Suaste v. Holder, 766 F.3d 1035, 1039 (9th Cir. 2014) (“Because ‘possession for

sale’ under CHSC § 11359 necessarily comprises only possession with intent to

distribute marijuana in exchange for remuneration, convictions under that

provision categorically qualify as aggravated felonies.”). Sterling urges us to

reconsider our holding in Roman-Suaste v. Holder, but a three-judge panel cannot

overrule circuit precedent in the absence of an intervening decision from a higher

court or en banc decision of this court. See Avagyan v. Holder, 646 F.3d 672, 677

(9th Cir. 2011). Accordingly, the agency did not err in finding him ineligible for

cancellation of removal. See 8 U.S.C. § 1229b(a).

The BIA did not err in finding Sterling’s contention that he did not actually

possess marijuana for sale to be an impermissible collateral attack on his

conviction. See Leal v. Holder, 771 F.3d 1140, 1148 n. 5 (9th Cir. 2014) (a

petitioner cannot collaterally attack his criminal conviction in removal

proceedings).

2 15-70237 The BIA did not abuse its discretion in declining to remand in order for

Sterling to withdraw his prior attorney’s concession of removability, where

Sterling has not shown an egregious circumstance. See Santiago-Rodriguez v.

Holder, 657 F.3d 820, 830-31 (9th Cir. 2011) (absent egregious circumstances, an

attorney’s admission or concession is binding on an alien; egregious circumstances

include circumstances where binding the alien to the concession would be unjust,

such as if the propriety of the concession has been undercut by intervening law).

Sterling has waived any challenge to the agency’s determination regarding

the Federal First Offender Act. See Corro-Barragan v. Holder, 718 F.3d 1174,

1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in

waiver).

We lack jurisdiction to consider Sterling’s unexhausted contentions

regarding his alleged eligibility for a waiver under 8 U.S.C. § 1182(h)(1)(B),

procedural irregularities, and ineffective assistance of counsel. 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). We reject Sterling’s contention that he exhausted his ineffective

assistance of counsel contention by mentioning it in the declarations supporting his

motion, where he failed to allege ineffective assistance in either of his briefs to the

BIA. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (“Petitioner will

3 15-70237 . . . be deemed to have exhausted only those issues he raised and argued in his brief

before the BIA.”)

We deny Sterling’s motion to take judicial notice of out of record evidence

(Docket Entry No. 17). See 8 U.S.C.A. § 1252(b)(4)(A) (judicial review is limited

to the administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010)

(stating standard of review for out of record evidence). We deny as unnecessary

Sterling’s motion to correct omissions and misstatements in the record (Docket

Entry No. 18), and his motion to supplement and correct omissions and

misstatements in the record (Docket Entry No. 19).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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