                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAY 18 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
OSCAR GEORGE THETFORD,                           No. 13-73072

              Petitioner,                        Agency No. A037-049-837

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

              Respondent.


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

                             Submitted May 4, 2016**
                               Pasadena, California

Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,*** Senior
District Judge.

      Oscar George Thetford, a native and citizen of Jamaica and lawful

permanent resident of the United States, pleaded nolo contendere to violation of

        *
             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).
        ***
             The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
Cal. Health & Safety Code § 11359, which criminalizes possession of marijuana

for sale. Thereafter, the U.S. Department of Homeland Security initiated removal

proceedings under 8 U.S.C. § 1229a. The immigration judge (IJ) ordered Thetford

removed, and the Board of Immigration Appeals (BIA) dismissed Thetford’s

appeal, deeming him removable as an aggravated felon. 8 U.S.C. §

1227(a)(2)(A)(iii).

      In determining whether a state conviction is an aggravated felony, we ask

whether the statute of conviction “categorically fits within the generic federal

definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 133 S. Ct.

1678, 1684 (citation and internal quotation marks omitted). Our precedent holds

that “a conviction for possession of marijuana for sale under CHSC § 11359 is

categorically an aggravated felony, namely ‘illicit trafficking in a controlled

substance.’” Roman-Suaste v. Holder, 766 F.3d 1035, 1037 (9th Cir. 2014)

(quoting 8 U.S.C. § 1101(a)(43)(B)). Because possession “for sale” under Cal.

Health & Safety Code § 11359 “necessarily comprises only possession with intent

to distribute marijuana in exchange for remuneration, convictions under that

provision categorically qualify as aggravated felonies.” Id. at 1039. The BIA did

not err in determining that Thetford’s conviction qualifies as an aggravated felony.




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      Nor did the BIA err by declining to address whether Thetford deserved a

continuance before the IJ. In Thetford’s notice of appeal to the BIA, he claimed

that the IJ erred by not giving him another continuance. Thetford did not,

however, raise that issue in his brief to the BIA. When a petitioner files a brief in

his appeal, he will be “deemed to have exhausted only those issues he raised and

argued in his brief before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th

Cir. 2009) (en banc). Thetford did not exhaust this claim.

      The petition for review is DENIED without prejudice to Thetford’s seeking

on a timely basis (a) habeas corpus or other relief from his prior state court

conviction of violating Cal. Health & Safety Code § 11359 or (b) the filing with

the BIA of a motion to reopen based on ineffective assistance of counsel or any

other grounds available to him.




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