Roel Sterling v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED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).
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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
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. . . 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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