Oscar George Thetford v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR GEORGE THETFORD,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73072
Agency No. A037-049-837
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 4, 2016**
Pasadena, California
Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,*** Senior
District Judge.
Oscar George Thetford, a native and citizen of Jamaica and lawful
permanent resident of the United States, pleaded nolo contendere to violation of
FILED
MAY 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.

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Cal. Health & Safety Code § 11359, which criminalizes possession of marijuana
for sale. Thereafter, the U.S. Department of Homeland Security initiated removal
proceedings under 8 U.S.C. § 1229a. The immigration judge (IJ) ordered Thetford
removed, and the Board of Immigration Appeals (BIA) dismissed Thetford’s
appeal, deeming him removable as an aggravated felon. 8 U.S.C. §
1227(a)(2)(A)(iii).
In determining whether a state conviction is an aggravated felony, we ask
whether the statute of conviction “categorically fits within the generic federal
definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 133 S. Ct.
1678, 1684 (citation and internal quotation marks omitted). Our precedent holds
that “a conviction for possession of marijuana for sale under CHSC § 11359 is
categorically an aggravated felony, namely ‘illicit trafficking in a controlled
substance.’” Roman-Suaste v. Holder, 766 F.3d 1035, 1037 (9th Cir. 2014)
(quoting 8 U.S.C. § 1101(a)(43)(B)). Because possession “for sale” under Cal.
Health & Safety Code § 11359 “necessarily comprises only possession with intent
to distribute marijuana in exchange for remuneration, convictions under that
provision categorically qualify as aggravated felonies.” Id. at 1039. The BIA did
not err in determining that Thetford’s conviction qualifies as an aggravated felony.
-2-

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Nor did the BIA err by declining to address whether Thetford deserved a
continuance before the IJ. In Thetford’s notice of appeal to the BIA, he claimed
that the IJ erred by not giving him another continuance. Thetford did not,
however, raise that issue in his brief to the BIA. When a petitioner files a brief in
his appeal, he will be “deemed to have exhausted only those issues he raised and
argued in his brief before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th
Cir. 2009) (en banc). Thetford did not exhaust this claim.
The petition for review is DENIED without prejudice to Thetford’s seeking
on a timely basis (a) habeas corpus or other relief from his prior state court
conviction of violating Cal. Health & Safety Code § 11359 or (b) the filing with
the BIA of a motion to reopen based on ineffective assistance of counsel or any
other grounds available to him.
-3-

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