Yovanni Herrera v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 16-71333
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YOVANNI HERRERA, No. 16-71333

Petitioner, Agency No. A088-360-238

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Yovanni Herrera, 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 finding him ineligible for cancellation of removal. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law.

* 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). Retuta v. Holder, 591 F.3d 1181, 1184 (9th Cir. 2010). We dismiss in part and

deny in part the petition for review.

We lack jurisdiction to consider Herrera’s unexhausted contention that the

Arizona Superior Court effectively deferred entry of judgment. See Tijani v.

Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal

claims not presented in an alien’s administrative proceedings before the BIA.”).

The agency did not err in concluding that Herrera’s conviction for

possession of marijuana under Arizona Revised Statutes §§ 13-3401, 13-3405, 13-

3418, 13-604, 13-707, 13-802, 13-901.01 is a conviction for immigration purposes,

where the Arizona Superior Court entered a formal judgment of guilt. See 8 U.S.C.

§ 1101(a)(48)(A); Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011) (“Section

1101(a)(48)(A) provides two different definitions of ‘conviction’ . . . Under the

first definition, a ‘conviction’ means that a court has entered ‘a formal judgment of

guilt of the alien’.”)

Accordingly, we do not reach Herrera’s contentions regarding the nature of

his sentence. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts

and agencies are not required to reach non-dispositive issues).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

2 16-71333