
    Oscar George THETFORD, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 13-73072.
    United States Court of Appeals, Ninth Circuit.
    Submitted May 4, 2016.
    
    Filed May 18, 2016.
    Lori Beth Schoenberg, Law Offices of Lori B. Schoenberg, Los Angeles, CA, for Petitioner.
    
      Tracie Nicole Jones, Trial, OIL, U.S. Department of Justice, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
    Before: W. FLETCHER and GOULD, Circuit Judges and LE MELLE, Senior District Judge.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. 
        See Fed. R.App. P. 34(a)(2).
    
    
      
       The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S. District Court for the Eastern District of Louisiana, sitting by designation.
    
   MEMORANDUM

Oscar George Thetford, a native and citizen of Jamaica and lawful permanent resident of the United States, pleaded nolo contendere to violation of Cal. Health & Safety Code § 11359, which criminalizes possession of marijuana for sale. Thereafter, the U.S. Department of Homeland Security initiated removal proceedings under 8 U.S.C. § 1229a. The immigration judge (IJ) ordered Thetford removed, and the Board of Immigration Appeals (BIA) dismissed Thetford’s appeal, deeming him removable as an aggravated felon. 8 U.S.C. § 1227(a)(2)(A)(iii).

In determining whether a state conviction is an aggravated felony, we ask whether the statute of conviction “categorically fits within the generic federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (citation and internal quotation marks omitted). Our precedent holds that “a conviction for possession of marijuana for sale under CHSC § 11359 is categorically an aggravated felony, namely ‘illicit trafficking in a controlled substance.’” Roman-Suaste v. Holder, 766 F.3d 1035, 1037 (9th Cir.2014) (quoting 8 U.S.C. § 1101(a)(43)(B)). Because possession “for sale” under Cal. Health & Safety Code § 11359 “necessarily comprises only possession with intent to distribute marijuana in exchange for remuneration, convictions under that provision categorically qualify as aggravated felonies.” Id. at 1039. The BIA did not err in determining that Thetford’s conviction qualifies as an aggravated felony.

Nor did the BIA err by declining to address whether Thetford deserved a continuance before the IJ. In Thetford’s notice of appeal to the BIA, he claimed that the IJ erred by not giving him another continuance. Thetford did not, however, raise that issue in his brief to the BIA. When a petitioner files a brief in his appeal, he will be “deemed to have exhausted only those issues he raised and argued in his brief before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc). Thetford did not exhaust this claim.

The petition for review is DENIED without prejudice to Thetford’s seeking on a timely basis (a) habeas corpus or other relief from his prior state court conviction of violating Cal. Health & Safety Code § 11359 or (b) the filing with the BIA of a motion to reopen based on ineffective assistance of counsel or any other grounds available to him. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3,
     