Roel Sterling v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROEL ROBERTO STERLING, AKA Roel No. 15-70237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). 2 15-70237 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 ...

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