                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            MAR 19 2014

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

JORGE ALEJANDRO ROMERO-                          No. 11-71793
MENDEZ, a.k.a. Jorge Alejandro Romero,
                                                 Agency No. A077-103-812
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, JR., Attorney General,

              Respondent.


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

                            Submitted February 10, 2014**
                                Pasadena, California

Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges.

       Jorge Alejandro Romero-Mendez (“Romero-Mendez”) petitions for review

of a decision of the Board of Immigration Appeals (“BIA”) finding him removable




        *
             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).
under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony

after admission to the United States. We deny in part and dismiss in part.

      1.    The BIA correctly found Romero-Mendez removable based on his

conviction under California Penal Code Section 273.5(a) and the two-year state

prison sentence he received following violation of probation. The former qualifies

categorically as a “crime of violence” under 18 U.S.C. § 16(a). See Banuelos-Ayon

v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010). The latter constitutes a “term of

imprisonment [of] at least one year” under 8 U.S.C. § 1101(a)(48)(B).1 Because

we find this conclusion clear based on the current administrative record, we deny

Romero-Mendez’s motion to supplement the administrative record.

      We also reject Romero-Mendez’s contention that the two-year state prison

sentence he received was imposed as punishment for his violation of probation,

and not for his conviction under Section 273.5(a). The record shows that Romero-

Mendez admitted that he violated the terms of his probation, had his prior

probationary sentence vacated, and received a two-year state prison sentence for

his conviction under Section 273.5(a)—something clearly permitted under




      1
       Romero-Mendez’s suggestion that the sentencing court did not suspend the
imposition of sentence when granting him probation is wrong as a matter of
California law. See Cal. Penal Code § 1203(a).

                                         2
California Penal Code Section 1203.1(j). See also Cal. Penal Code § 273.5(a)

(permitting punishment by imprisonment in state prison for up to four years).

      Because Romero-Mendez is removable based on his conviction under

Section 273.5(a) and his two-year state prison sentence, we lack jurisdiction over

his petition and dismiss the petition in part. See Prakash v. Holder, 579 F.3d 1033,

1039 (9th Cir. 2009).

      2.     Romero-Mendez cannot establish a viable claim of ineffective

assistance of counsel. In order to succeed on a claim of ineffective assistance of

counsel during removal proceedings, a petitioner must demonstrate prejudice. Ray

v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006). “[W]here counsel’s performance

was inadequate but the petitioner still had an opportunity to present his claim,

‘[p]rejudice is found when the performance of counsel was so inadequate that it

may have affected the outcome of the proceedings.’” Id. (quoting Ortiz v. INS, 179

F.3d 1148, 1153 (9th Cir. 1999)) (second alteration in original). This is a hurdle

Romero-Mendez cannot surmount because, as noted above, the record establishes

his removability on the basis of his conviction under California Penal Code Section

273.5(a) and the two-year state prison sentence he received. Thus, we deny

Romero-Mendez’s petition in part.




                                          3
       3.     Romero-Mendez’s argument that 8 U.S.C. § 1227(a)(2)(A)(iii), as

applied in his case, is unconstitutionally broad lacks merit. As a preliminary

matter, Romero-Mendez fails to identify any portion of the Federal Constitution

that the statute purportedly violates. Moreover, his assertion that Congress

intended removability under 8 U.S.C. § 1227(a)(2)(A)(iii) to be limited to “the

most egregious offenses” is contradicted by the plain language of the statute and

the various definitions it incorporates. See 8 U.S.C. § 1101(a)(43)(F); 8 U.S.C. §

1227(a)(2)(A)(iii); 18 U.S.C. § 16(a). We therefore deny Romero-Mendez’s

petition in part.

       DISMISSED in part and DENIED in part.




                                         4
                                                                            FILED
Romero-Mendez v. Holder, No. 11-71793                                       MAR 19 2014

                                                                         MOLLY C. DWYER, CLERK
Circuit Judge NGUYEN, concurring in part and concurring in the judgment: COURT OF APPEALS
                                                                     U.S.



      For the reasons offered in my concurrence in Perez Ramirez v. Holder, No.

10-71198, 2014 WL 961883 (9th Cir. Mar. 13, 2014), as to Part 1 of the

memorandum disposition, I concur only in the judgment.
