                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 16 2013

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



                            FOR THE NINTH CIRCUIT


ROHAN ANTHONY COOMBS,                            No. 10-72922

              Petitioner,                        Agency No. A037-333-016

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

              Respondent.


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

                       Argued and Submitted August 9, 2013
                               Pasadena, California

Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.

       Rohan Anthony Coombs, a Jamaican citizen, petitions for review of a

decision of the Board of Immigration Appeals dismissing an appeal from an order

of removal entered by an immigration judge based upon a finding that Coombs is

an alien convicted in California state court of possession of marijuana with intent

to sell, an aggravated felony. Because (1) we lack jurisdiction to review his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
collateral attack upon his underlying state conviction and (2) neither his partial

completion of the naturalization process nor his military service conferred

nationality upon him, we DISMISS in part and DENY in part his petition for

review.

      First, Coombs argues that his underlying 2008 California criminal

conviction was unconstitutional because his defense lawyer failed to inform him of

the immigration consequences of his plea agreement.1 We determine that we lack

jurisdiction to consider the merits of this claim because it functions as an

impermissible collateral attack upon his conviction. Lopez-Jacuinde v. Holder,

600 F.3d 1215, 1217 (9th Cir. 2010) (“[T]his Court retains jurisdiction to

determine its jurisdiction.”); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041

(9th Cir. 2010) (holding that petitioner could not collaterally attack his state court

conviction on a petition for review of a BIA decision); Urbina-Mauricio v. INS,

989 F.2d 1085, 1089 (9th Cir. 1993).




      1
              We do not take judicial notice of Coombs’ California Superior Court
filings, including his unsuccessful petition for writ of error coram nobis, in light of
8 U.S.C. § 1252(b)(4)(A) and the fact that neither of the conditions in Fisher
allowing for the consideration of external evidence were met. See Fisher v. INS,
79 F.3d 955, 964 (9th Cir. 1996) (en banc).


                                           2
      Even if we had jurisdiction to consider this argument, Coombs would not

prevail. Because his 2008 conviction took place two years prior to the Supreme

Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), Coombs’

defense attorney had no obligation to inform him of the potential immigration

consequences of his plea agreement at that time. Chaidez v. United States, 133 S.

Ct. 1103, 1105 (2013) (holding that Padilla does not have retroactive effect

because it announces a new rule of law).

      Second, Coombs is subject to removal because he is an alien—neither a

citizen nor a national—convicted of an aggravated felony. A citizen of Jamaica,

Coombs nonetheless argues that he is a national of the United States under the

Rome Statute of the International Criminal Court (Rome Statute) due to his

commencement of the naturalization process and his service in the United States

Marine Corps, for which he swore an oath of allegiance to this country. The

United States never ratified, and so is not legally bound by, the Rome Statute; thus,

it affords no relief to Coombs. See Rome Statute of the International Criminal

Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002).

      Additionally, our precedent precludes Coombs’ second claim. He is not a

national, despite his military service, because he failed to complete the

naturalization process. Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 940 (9th Cir.


                                           3
2004) (reinforcing Perdomo-Padilla by declaring that neither service in the United

States military nor the taking of an oath of allegiance transforms an alien into a

United States national); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir.

2003) (holding that an alien only becomes a national through birth or completion

of the naturalization process).

      For the reasons set forth above, Coombs is an alien, and, in light of his

aggravated felony drug conviction, he is removable without discretion. 8 U.S.C.

§§ 1227(a)(2)(A)(iii), (B)(i).

      Petition for review DISMISSED in part and DENIED in part.




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