NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 07 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MIN CHANG CHEN, AKA Ivy Chang No. 13-73786 Chen, Agency No. A042-556-998 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 17, 2017** Submission Vacated April 4, 2017 Resubmitted September 7, 2018 San Francisco, California Before: WARDLAW and GOULD, Circuit Judges, and SHEA,*** District Judge. Min Chang Chen, a native and citizen of the People’s Republic of China, and a lawful permanent resident of the United States, petitions for review of the * 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). decision of the Board of Immigration Appeals (“BIA”) affirming the denial by the immigration judge (“IJ”) of her applications for asylum and withholding of removal, as well as the BIA’s dismissal of Chen’s ineffective assistance of counsel claim. We have jurisdiction pursuant to 8 U.S.C. § 1252, and deny the petition. 1. We lack jurisdiction to review any final order of removal against a noncitizen who is removable by reason of having committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1252(a)(2)(C). “Nevertheless, we retain jurisdiction to determine our jurisdiction; that is, we have jurisdiction to determine whether an offense is an aggravated felony under the INA.” Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010) (citing 8 U.S.C. § 1252(a)(2)(C)). Chen was convicted of an aggravated felony. Chen pleaded no contest to cultivation of marijuana in violation of California Health and Safety Code (“CHSC”) § 11358 (2011), amended by Initiative Measure (Prop. 64, § 8.2, approved Nov. 8, 2016, eff. Nov. 9, 2016). At the time of her conviction, a violation of CHSC § 11358 was punishable “by a term of imprisonment in a county jail for 16 months, or two or three years.” Cal. Penal Code (“CPC”) § 1170(h). Because Chen’s conviction was punishable “by imprisonment for more than one year under any law of . . . a State,” her conviction qualified as a “felony drug offense” within the meaning of the Controlled Substances Act. 21 U.S.C. § 2 802(44). Any felony punishable under the Controlled Substances Act is a “drug trafficking crime.” 18 U.S.C. § 924(c)(2). Thus, Chen’s conviction was an aggravated felony as defined in the Immigration and Naturalization Act. 8 U.S.C. § 1101(a)(43)(B) (“The term ‘aggravated felony’ means . . . illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” Marijuana is a controlled substance. 21 U.S.C. § 812, Schedule I, (c)(10). Because we conclude that Chen was convicted of an aggravated felony within the meaning of 8 U.S.C. § ...
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