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Roman-Suaste v. Holder

United States Court of Appeals, Ninth Circuit

September 4, 2014

ROBERTO ROMAN-SUASTE, AKA Roberto Roman, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted, Pasadena, California July 10, 2014

Page 1036

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-354-044.

Immigration

The panel denied Roberto Roman-Suaste's petition for review of the Board of Immigration Appeals' decision finding him removable and ineligible for relief based on his conviction for possession of marijuana for sale, in violation of California Health & Safety Code § 11359.

The panel affirmed the Board of Immigration Appeals' finding that a conviction under California Health & Safety Code § 11359 is a categorical aggravated felony. The panel held that the conviction contemplates distribution of marijuana in exchange for remuneration, and that aiding and abetting liability is no different under California law than under federal law. The panel held that the conviction therefore constitutes illicit trafficking in a controlled substance, an aggravated felony under 8 U.S.C. § 1101(a)(43)(B).

Yonaton M. Rosenzweig (argued) and Nicole Shimoda, Katten Muchin Rosenman LLP, Los Angeles, California, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Linda S. Wernery, Assistant Director, James E. Grimes, Senior Litigation Counsel, and Susan Bennett Green (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Fortunato P. Benavides,[*] Kim McLane Wardlaw, and Richard R. Clifton, Circuit Judges. Opinion by Judge Clifton.

OPINION

Page 1037

CLIFTON, Circuit Judge

Roberto Roman-Suaste, a native and citizen of Mexico, was charged with being a removable alien on the basis of a conviction for possession of marijuana for sale under California Health & Safety Code (" CHSC" ) § 11359. The Board of Immigration Appeals held that a conviction under CHSC § 11359 is categorically an aggravated felony. Roman-Suaste was therefore found to be removable and ineligible for various discretionary forms of relief from removal.

We agree with the BIA. Possession of marijuana for sale under CHSC § 11359 contemplates a sale--that is, distribution of marijuana in exchange for remuneration. Furthermore, aiding and abetting liability under California law is no different from aiding and abetting liability under federal law. We therefore hold that a conviction for possession of marijuana for sale under CHSC § 11359 is categorically an aggravated felony, namely " illicit trafficking in a ...


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