                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 27 2014

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



                            FOR THE NINTH CIRCUIT


JOSE ALFREDO RAMIREZ                             No. 12-70902
CARRAZCO, AKA Alfredo Ramirez,
AKA Alfredo Joe Ramirez, AKA Alfredo             Agency No. A036-898-312
Jose Ramirez, AKA Jose Ramirez,

              Petitioner,                        MEMORANDUM*

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted March 14, 2014
                           San Francisco, California

Before: FARRIS, TASHIMA, and McKEOWN, Circuit Judges.

       The Petitioner, Jose Alfredo Ramirez Carrazco, appeals his final order of

removal from the Board of Immigration Appeals. We have jurisdiction under 8

U.S.C. § 1252(a)(2)(D).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         Ramirez was not denied due process when the Immigration Judge failed to

order an independent assessment of his mental competence. The BIA’s leading

case on this issue is Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), and no

plausible reading of M-A-M- makes an independent medical evaluation required

once indicia of incompetency present themselves. Assessment is required, but the

form of that assessment is not rigidly specified. Id. at 480. Ramirez’s argument

fails.

         The Immigration Judge used Ramirez’s § 11359 marijuana conviction,

which allegedly took place before the effective date of the Illegal Immigration

Reform and Immigrant Responsibility Act, to render him ineligible for cancellation

of removal. This was not an impermissible retroactive application of the Act. This

argument is foreclosed by Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007), the

relevant facts of which are nearly identical to this case.

         The recent Supreme Court case Moncrieffe v. Holder, 133 S.Ct. 1678 (2013),

does not indicate that the Petitioner’s marijuana conviction cannot be an

“aggravated felony” under the immigration laws. For Moncrieffe to apply, a state

statute must punish the distribution of (1) a small amount of marijuana, for (2) no

remuneration. Id. at 1686. The California statute in contention here punishes

“possess[ion] for sale” of any amount of marijuana, and no California cases


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suggest that “sale” does not mean remuneration (as a plain reading would indicate).

CAL. HEALTH & SAFETY CODE § 11359. The Moncrieffe exception does not apply,

and § 11359 is categorically an “aggravated felony.”

      Finally, the Petitioner argues that the Immigration Judge improperly

considered certain documents when establishing the Petitioner’s identity with

respect to the marijuana conviction, thereby violating Shepard v. United States,

544 U.S. 13 (2005). In making this argument, Ramirez questioned the reliability

and sufficiency of the evidence that the Immigration Judge used to determine that

Ramirez committed the offense in question. Ramirez raised this issue to the BIA,

but there is nothing in the Board’s final opinion showing that it considered the

issue. Because this is a factual question that has been entrusted to the Agency by

Congress, it is inappropriate for this Court to decide whether Ramirez has met his

burden of proving that he has not been convicted of an aggravated felony, and a

remand limited to this issue is appropriate. INS v. Orlando Ventura, 537 U.S. 12,

16 (2002).

      The petition is DENIED with respect to all claims except the identity claim.

The matter is REMANDED to the Board of Immigration Appeals for the sole

purpose of considering the Petitioner’s identity argument.




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