Andrew Usher v. Loretta E. Lynch , 609 F. App'x 521 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANDREW MARK ANTHONY USHER, No. 14-71734
Petitioner, Agency No. A058-968-415
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2015**
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.
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