Robert Kang v. Eric Holder, Jr. , 533 F. App'x 711 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT STEVEN KANG, No. 12-70676
Petitioner, Agency No. A035-375-789
v.
MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2013**
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Petitioner Robert Steven Kang petitions for review from the Board of
Immigration Appeals’ ("BIA") dismissal of his appeal from the immigration
judge’s entry of a final order of removal. Reviewing de novo the BIA’s legal
determinations, including whether Petitioner’s conviction is a removable offense,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Cabantac v. Holder, 693 F.3d 825, 826 (9th Cir. 2012) (per curiam), we deny the
petition.
1. The BIA correctly held that, under the modified categorical approach,
Petitioner’s conviction qualified as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(E). The abstract of judgment states that Petitioner pleaded guilty to
count 8 of the criminal complaint, and the criminal complaint alleged, in count 8,
that Petitioner did "commit the crime of POSSESSION OF FIREARM BY A
FELON" and that he was "previously convicted" of a specified felony. See
Cabantac, 693 F.3d at 827 ("We hold that where, as here, the abstract of judgment
or minute order specifies that a defendant pleaded guilty to a particular count of the
criminal complaint or indictment, we can consider the facts alleged in that count.").
2. The BIA correctly applied the long-standing legal rule that the pendency
of a collateral attack on an alien’s conviction has no effect on immigration
proceedings. E.g., Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993). Nothing in
the Supreme Court’s decision Padilla v. Kentucky, 559 U.S. 356 (2010), is "clearly
irreconcilable" with that rule. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc).
Petition DENIED.
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