MARIO ARREDONDO FIERRO, AKA Mario Arredondo, AKA Mario Arrendondo-Fierro v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO ARREDONDO FIERRO, AKA
Mario Arredondo, AKA Mario
Arrendondo-Fierro,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-70131
Agency No. A091-033-070
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2015 **
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
Mario Arredondo Fierro (“Fierro”), a native and citizen of Mexico, and a
lawful permanent resident of the United States, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order finding removability based, in part, on the
FILED
JUL 15 2015
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).

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BIA’s determination that Fierro’s state convictions for attempted sale or
transportation of marijuana, in violation of Ariz. Rev. Stat. §§ 13-1001 and
13-3405, are aggravated felonies under 8 U.S.C. § 1101(a)(43)(U). 1 We have
jurisdiction under 8 U.S.C. § 1252 to review whether his conviction constituted an
aggravated felony, and we deny in part and dismiss in part the petition.
1. Under the modified categorical approach, Fierro’s state convictions are
aggravated felonies under 8 U.S.C. § 1101(a)(43)(U); see Cazarez–Gutierrez v.
Ashcroft, 382 F.3d 905, 912 (9th Cir.2004) (“[A] state drug offense is an
aggravated felony for immigration purposes . . . if . . . the crime contains a
trafficking element.”). During Fierro’s change of plea hearing, he admitted he
attempted to “transfer a sizeable amount of marijuana . . . to another individual” on
two separate occasions. Fierro admitted he acted as a “broker or . . . a middle man”
for the drug transactions. These admissions sufficiently establish Fierro was
convicted of a federal drug trafficking offense. See 21 U.S.C. § 841(a)(1); United
States v. Ahumada-Avalos, 875 F.2d 681, 683 (9th Cir. 1989) (holding
“distribution” of a controlled substance can be established by showing the
defendant “participat[ed] in the [drug] transaction viewed as a whole” (internal
1 Although Fierro sought relief under the Convention Against Torture, he
does not challenge the BIA’s denial of CAT relief.
2

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quotation marks omitted)). Therefore, the BIA did not err by concluding that
Fierro’s state convictions amounted to aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(U).
2. Fierro also argues that his convictions are not aggravated felonies because
Arizona’s definition of “attempt” is broader than the federal definition. Fierro’s
claim lacks merit. See United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir.
2008) (“[I]t is clear that Arizona’s definition of attempt is coextensive with the
federal definition.”). However, because Fierro failed to raise any argument about
the scope of Ariz. Rev. Stat. § 13-1001 before the BIA, we lack jurisdiction to
consider the issue. 8 U.S.C. § 1252(d)(1); see Zhang v. Ashcroft, 388 F.3d 713,
721 (9th Cir. 2004) (“The petitioner’s failure to raise an issue to the BIA
constitutes a failure to exhaust, depriving this court of jurisdiction.”).
DISMISSED in part and DENIED in part.
3

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