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United States Court of Appeals, Ninth Circuit.

Jorge RODRIGUEZ REA, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 17-70229

Decided: October 29, 2020

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges. Monica Rottermann, Law Office of Monica Rottermann, Santa Ana, CA, for Petitioner Surell Brady, Esquire, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent


Jorge Rodriguez Rea, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge's decision denying voluntary departure. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013). We deny the petition for review.

The agency did not err in concluding that California Health and Safety Code (“CHSC”) § 11377(a) is divisible and in applying the modified categorical approach to determine that Rodriguez Rea's conviction is an offense relating to a controlled substance that makes him ineligible for voluntary departure. See 8 U.S.C. §§ 1229c(b)(1)(B), 1101(f)(3), 1182(a)(2)(A)(i)(II); Coronado v. Holder, 759 F.3d 977, 984-85 (9th Cir. 2014) (holding that CHSC § 11377(a) is divisible and subject to the modified categorical approach); United States v. Martinez-Lopez, 864 F.3d 1034, 1040-41 (9th Cir. 2017) (en banc) (holding that a similar California controlled substance statute is divisible with respect to the listed substances). Rodriguez Rea asks us to reconsider Martinez-Lopez, but we are bound by that decision given the absence of any “intervening higher authority” that is “clearly irreconcilable” with it. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc).

We deny Rodriguez Rea's request to remand in light of United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1154 (9th Cir. 2020).

On May 17, 2017, the court granted a stay of removal. The stay of removal remains in place until issuance of the mandate.


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