Renato Romero-Frisby v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 22 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RENATO ROMERO-FRISBY, AKA No. 09-73093
Renato Romero Frisby,
Agency No. A041-317-867
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2013**
San Francisco, California
Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.
Renato Romero-Frisby petitions for review of a BIA determination that
Romero is removable and ineligible for withholding of removal. We affirm the
BIA and dismiss the petition for lack of jurisdiction.
*
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).
Romero’s conviction under Arizona law for attempted possession of
methamphetamine with the intent to sell, Ariz. Rev. Stat. §§ 13-1001,
13-3407(A)(2), is a drug trafficking crime and therefore an aggravated felony
under 8 U.S.C. § 1101(a)(43)(B). Possession of methamphetamine with the intent
to sell is categorically a drug trafficking crime because it is a “felony punishable
under the Controlled Substances Act [CSA].” 18 U.S.C. § 924(c)(2); 21 U.S.C.
§§ 802(8), 802(11), 841(a)(1), (b)(1)(C). The CSA criminalizes any attempt to
violate its prohibitions, 21 U.S.C. § 846, and “Arizona’s definition of attempt is
coextensive with the federal definition.” United States v. Gomez, 732 F.3d 971,
984 n.10 (9th Cir. 2013); see also United States v. Gomez-Hernandez, 680 F.3d
1171, 1175 (9th Cir. 2012); United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir.
2008). Although these cases arose in the criminal context, “where a statute ‘has
both criminal and noncriminal applications,’ the statute should be consistently
interpreted in both criminal and noncriminal, i.e., immigration, applications.”
Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 n.3 (9th Cir. 2004) (quoting
Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004)). Because the CSA criminalizes
“attempt,” 21 U.S.C. § 846, it is irrelevant that the government did not reallege that
Romero was removable under 8 U.S.C. § 1101(a)(43)(U).
2
Because Romero was convicted of an aggravated felony, we lack jurisdiction
to review the agency’s order of removal. 8 U.S.C. § 1252(a)(2)(C);
Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010).
PETITION DISMISSED.
3