                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 15 2015

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

ANDREW MARK ANTHONY USHER,                       No. 14-71734

              Petitioner,                        Agency No. A058-968-415

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     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.

      Andrew Mark Anthony Usher, a native and citizen of Jamaica, petitions for

review of the BIA’s decision ordering him removed and finding him ineligible for

relief from removal. Usher challenges the BIA’s determination that his conviction

for attempted possession for sale of marijuana constitutes a “crime involving moral

        *
             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).
turpitude.” Usher also challenges the BIA’s determination that his conviction

constitutes a “particularly serious crime” rendering him ineligible for asylum and

withholding of removal.

      1. Finding Usher removable based on his conviction for both an aggravated

felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and a violation relating to a controlled

substance, 8 U.S.C. § 1227(a)(2)(B)(i), the BIA did not order Usher removed for

having committed a crime involving moral turpitude. Because the BIA did not

reach this issue, this court lacks jurisdiction to review it. Najmabadi v. Holder,

597 F.3d 983, 986 (9th Cir. 2010).

      2. Because Usher raises a legal question challenging whether his offense

constitutes a “particularly serious crime” in light of “evolving societal standards”

about marijuana, we have jurisdiction to review this portion of the petition. See

Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir. 2011) (en banc). The BIA did

not abuse its discretion when adopting the IJ’s conclusion—based on Usher’s

testimony, the police report, and the pre-sentence investigation report—that the

circumstances of Usher’s conviction did not rebut the presumption that trafficking

in marijuana is a particularly serious crime. See Arbid v. Holder, 700 F.3d 379,

385 (9th Cir. 2012) (per curiam); Matter of Y-L-, 23 I. & N. Dec. 270 (A.G. 2002).

      DISMISSED IN PART, DENIED IN PART.


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