                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 15 2015

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



                            FOR THE NINTH CIRCUIT


MARIO ARREDONDO FIERRO, AKA                      No. 12-70131
Mario Arredondo, AKA Mario
Arrendondo-Fierro,                               Agency No. A091-033-070

              Petitioner,
                                                 MEMORANDUM*
 v.

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.

      Mario Arredondo Fierro (“Fierro”), a native and citizen of Mexico, and a

lawful permanent resident of the United States, petitions for review of the Board of

Immigration Appeals’ (“BIA”) order finding removability based, in part, on the

        *
             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).
BIA’s determination that Fierro’s state convictions for attempted sale or

transportation of marijuana, in violation of Ariz. Rev. Stat. §§ 13-1001 and

13-3405, are aggravated felonies under 8 U.S.C. § 1101(a)(43)(U).1 We have

jurisdiction under 8 U.S.C. § 1252 to review whether his conviction constituted an

aggravated felony, and we deny in part and dismiss in part the petition.

1.    Under the modified categorical approach, Fierro’s state convictions are

aggravated felonies under 8 U.S.C. § 1101(a)(43)(U); see Cazarez–Gutierrez v.

Ashcroft, 382 F.3d 905, 912 (9th Cir.2004) (“[A] state drug offense is an

aggravated felony for immigration purposes . . . if . . . the crime contains a

trafficking element.”). During Fierro’s change of plea hearing, he admitted he

attempted to “transfer a sizeable amount of marijuana . . . to another individual” on

two separate occasions. Fierro admitted he acted as a “broker or . . . a middle man”

for the drug transactions. These admissions sufficiently establish Fierro was

convicted of a federal drug trafficking offense. See 21 U.S.C. § 841(a)(1); United

States v. Ahumada-Avalos, 875 F.2d 681, 683 (9th Cir. 1989) (holding

“distribution” of a controlled substance can be established by showing the

defendant “participat[ed] in the [drug] transaction viewed as a whole” (internal



      1
       Although Fierro sought relief under the Convention Against Torture, he
does not challenge the BIA’s denial of CAT relief.

                                           2
quotation marks omitted)). Therefore, the BIA did not err by concluding that

Fierro’s state convictions amounted to aggravated felonies under 8 U.S.C.

§ 1101(a)(43)(U).

2.    Fierro also argues that his convictions are not aggravated felonies because

Arizona’s definition of “attempt” is broader than the federal definition. Fierro’s

claim lacks merit. See United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir.

2008) (“[I]t is clear that Arizona’s definition of attempt is coextensive with the

federal definition.”). However, because Fierro failed to raise any argument about

the scope of Ariz. Rev. Stat. § 13-1001 before the BIA, we lack jurisdiction to

consider the issue. 8 U.S.C. § 1252(d)(1); see Zhang v. Ashcroft, 388 F.3d 713,

721 (9th Cir. 2004) (“The petitioner’s failure to raise an issue to the BIA

constitutes a failure to exhaust, depriving this court of jurisdiction.”).

      DISMISSED in part and DENIED in part.




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