                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 11 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

ROBERT STEVEN KANG,                              No. 12-70676

              Petitioner,                        Agency No. A035-375-789

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted July 8, 2013**
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Petitioner Robert Steven Kang petitions for review from the Board of

Immigration Appeals’ ("BIA") dismissal of his appeal from the immigration

judge’s entry of a final order of removal. Reviewing de novo the BIA’s legal

determinations, including whether Petitioner’s conviction is a removable offense,


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Cabantac v. Holder, 693 F.3d 825, 826 (9th Cir. 2012) (per curiam), we deny the

petition.

       1. The BIA correctly held that, under the modified categorical approach,

Petitioner’s conviction qualified as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(E). The abstract of judgment states that Petitioner pleaded guilty to

count 8 of the criminal complaint, and the criminal complaint alleged, in count 8,

that Petitioner did "commit the crime of POSSESSION OF FIREARM BY A

FELON" and that he was "previously convicted" of a specified felony. See

Cabantac, 693 F.3d at 827 ("We hold that where, as here, the abstract of judgment

or minute order specifies that a defendant pleaded guilty to a particular count of the

criminal complaint or indictment, we can consider the facts alleged in that count.").

       2. The BIA correctly applied the long-standing legal rule that the pendency

of a collateral attack on an alien’s conviction has no effect on immigration

proceedings. E.g., Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993). Nothing in

the Supreme Court’s decision Padilla v. Kentucky, 559 U.S. 356 (2010), is "clearly

irreconcilable" with that rule. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc).

       Petition DENIED.




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