NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MIN CHANG CHEN, AKA Ivy Chang Chen, Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 13-73786 Agency No. A042-556-998

MEMORANDUM *

On Petition for Review of an Order of the Board of Im m igration Appeals Subm itted March 17, 2017 * * Subm ission Vacated April 4, 2017 R esubm itted Septem

ber 7, 2018 San Francisco, California Before: WARDLAW and GOULD, Circuit Judges, and SHEA, * * * District Judge. Min Chang Chen, a native and citizen of the People’s Republic of China, and a lawful perm anent resident of the United States, petitions for review of the 

# FILED
SEP 07 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).decision of the Board of Im m igration Appeals (“BIA”) affirm ing the denial by the

imm igration judge (“IJ”) of her applications for asylum and withholding of

rem oval, as well as the BIA’s dism issal of Chen’s ineffective assistance of counsel claim . We have jurisdiction pursuant to 8 U.S.C. § 1252, and deny the petition. 1. We lack jurisdiction to review any final order of rem oval against a noncitizen who is rem ovable by reason of having com m itted an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1252(a)(2)(C). “Nevertheless, we retain jurisdiction to determ ine our jurisdiction; that is, we have jurisdiction to determ ine whether an offense is an aggravated felony under the INA.” Daas v. Holder , 620 F.3d 1050, 1053 (9th Cir. 2010) (citing 8 U.S.C. § 1252(a)(2)(C)). Chen was convicted of an aggravated felony. Chen pleaded no contest to cultivation of m arijuana in violation of California Health and Safety Code (“CHSC”) § 11358 (2011), amended by Initiative Measure (Prop. 64, § 8.2, approved Nov. 8, 2016, eff. Nov. 9, 2016). At the tim e of her conviction, a violation of CHSC § 11358 was punishable “by a term of im prisonm ent in a county jail for 16 m onths, or two or three years.” Cal. Penal Co de (“CPC”) § 1170(h). Because Chen’s conviction was punishable “by im prisonm ent for m ore than one year under any law of . . . a State,” her conviction qualified as a “felony drug offense” within the m eaning of the Controlled Substances Act. 21 U.S.C. §

2802(44). Any felony punishable under the Controlled Substances Act is a “drug

trafficking crim e.” 18 U.S.C. § 924(c)(2). Thus, Chen’s conviction was an aggravated felony as defined in the Im m igration and Naturalization Act. 8 U.S.C. § 1101(a)(43)(B) (“The term ‘aggravated felony’ m eans . . . illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crim e (as defined in section 924(c) of Title 18).” Marijuana is a controlled substance. 21 U.S.C. § 812, Schedule I, (c)(10). Because we conclude that Chen was convicted of an aggravated felony within the m eaning of 8 U.S.C. § 1101(a)(43)(B), we lack jurisdiction to review the BIA’s order of rem oval to the extent that it reflects Chen’s rem ovability for having com m itted an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). Accordingly, we lack jurisdiction to review Chen’s asylum claim

. See 8 U.S.C. § 1158(b)(2)(B)(i). 2. “[D] eterm ining whether a crim e is particularly serious is an inherently discretionary decision, and we will review such decisions for abuse of discretion.” Arbid v. Holder , 700 F.3d 379, 383 (9th Cir. 2012) (per curiam ), as amended (Nov. 9, 2012). Under this standard of review, “we m ay disturb the BIA’s ruling if the BIA acted arbitrarily, irrationally, or contrary to law.” Alphonsus v. Holder , 705 F.3d 1031, 1043 (9th Cir. 2013) (internal quotation m arks om itted).

3The BIA did not abuse its discretion when it affirm ed the IJ’s conclusion

that Chen had been convicted of a particularly serious crim e. The BIA reasoned that even if new evidence dem onstrated that Chen did not own the involved property, the other reasons the IJ relied upon were “sufficient” to conclude that Chen had been convicted of a particularly serious crim e. The BIA reasoned that “the seriousness and recency of the respondent’s crim inal offense and the large quantity of m arijuana plants involved” were sufficient to m ake the crim e particularly serious. We conclude that the BIA’s conclusion was not arbitrary, irrational, or contrary to law. Because the BIA did not abuse its discretion in affirm ing the IJ’s determ ination that Chen had been convicted of a particularly serious crim e, we dism iss her claim

for withholding of rem oval. See 8 U.S.C. § 1231(b)(3)(B)(ii). 3. We lack jurisdiction to consider Chen’s claim that she suffered ineffective assistance of counsel under P adilla v. Kentucky , 559 U.S. 356, 369 (2010) (holding that “when the deportation consequence [of a particular plea] is truly clear, as it was in this case, the duty to give correct advice is equally clear”), because her crim inal defense lawyer failed to advise her that pleading no contest to an aggravated felony “m eant virtually autom atic, unavoidable deportation.” United States v. Kwan , 407 F.3d 1005, 1015 (9th Cir. 2005) (internal quotation

4m ark om itted), abrogated by Padilla , 559 U.S. at 369–74. Chen’s claim is not

properly before us because it is well established that “[a] petitioner m ay not collaterally attack his state court conviction on a petition for review of a BIA decision.” R amirez-Villalpando v. Holder , 645 F.3d 1035, 1041 (9th Cir. 2011). Chen’s “conviction was final as presented to the BIA, and the question of its validity under California law is not before us.” Id. Accordingly, if Chen’s claim of ineffective assistance of counsel is to be addressed on the m erits, it must be by application for a writ of error coram nobis in California state court pursuant to CPC § 1473.7, or any other postconviction rem edy that m ay be available to her. DENIED.

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