RENATO ROMERO-FRISBY V. ERIC HOLDER, JR., No. 09-73093 (9th Cir. 2013)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 22 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS RENATO ROMERO-FRISBY, AKA Renato Romero Frisby, No. 09-73093 Agency No. A041-317-867 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 6, 2013** San Francisco, California Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges. Renato Romero-Frisby petitions for review of a BIA determination that Romero is removable and ineligible for withholding of removal. We affirm the BIA and dismiss the petition for lack of jurisdiction. * 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). Romero s conviction under Arizona law for attempted possession of methamphetamine with the intent to sell, Ariz. Rev. Stat. §§ 13-1001, 13-3407(A)(2), is a drug trafficking crime and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Possession of methamphetamine with the intent to sell is categorically a drug trafficking crime because it is a felony punishable under the Controlled Substances Act [CSA]. 18 U.S.C. § 924(c)(2); 21 U.S.C. §§ 802(8), 802(11), 841(a)(1), (b)(1)(C). The CSA criminalizes any attempt to violate its prohibitions, 21 U.S.C. § 846, and Arizona s definition of attempt is coextensive with the federal definition. United States v. Gomez, 732 F.3d 971, 984 n.10 (9th Cir. 2013); see also United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012); United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008). Although these cases arose in the criminal context, where a statute has both criminal and noncriminal applications, the statute should be consistently interpreted in both criminal and noncriminal, i.e., immigration, applications. Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 n.3 (9th Cir. 2004) (quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004)). Because the CSA criminalizes attempt, 21 U.S.C. § 846, it is irrelevant that the government did not reallege that Romero was removable under 8 U.S.C. § 1101(a)(43)(U). 2 Because Romero was convicted of an aggravated felony, we lack jurisdiction to review the agency s order of removal. 8 U.S.C. § 1252(a)(2)(C); Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010). PETITION DISMISSED. 3

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