Jaime Efrain Sanchez Ramirez v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME EFRAIN SANCHEZ RAMIREZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-70970
Agency No. A071-864-495
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Jaime Efrain Sanchez Ramirez, a native and citizen of Mexico and legal
permanent resident, petitions pro se for review of the Board of Immigration
Appeals’ (“BIA”) decision denying his motion to remand and dismissing his
appeal from an immigration judge’s removal order. We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
remand, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d
785, 791-92 (9th Cir. 2005). We deny the petition for review.
Sanchez Ramirez’s contention that he is not removable because his
conviction is a misdemeanor fails, where he pleaded guilty to a felony charge of
use of a communication facility to facilitate distribution of cocaine under 21 U.S.C.
§ 843(b). See 21 U.S.C. § 843(d)(1) (punishment for a conviction under § 843 is
imprisonment of not more than 4 years); 18 U.S.C. § 3559(a)(4) (a Class E felony
is an offense that carries a maximum authorized term of imprisonment of less than
five years, but more than one year). His reliance on Abuelhawa v. United States,
556 U.S. 816 (2009), to contend his conviction was for a misdemeanor is
misplaced, where the court in that case did not determine that a conviction under
§ 843(b) is categorically a misdemeanor, but determined that the facts of
Abuelhawa’s case did not support a conviction under § 843(b). Accordingly, the
BIA did not err in declining to remand in light of that decision.
To the extent Sanchez Ramirez challenges his criminal conviction, that
collateral attack is not properly considered in a petition for review of a BIA
decision. See Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. 2011).
The BIA did not err or abuse its discretion in declining to remand for
Sanchez Ramirez to seek a § 212(h) waiver of inadmissibility in order to pursue

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adjustment of status and cancellation of removal, where the agency correctly
determined that his conviction is a drug trafficking offense, which cannot be
waived. See 8 U.S.C. § 1182(h) (waiver only available for a single controlled
substance offense for simple possession involving 30 grams or less of marijuana);
United States v. Jimenez, 533 F.3d 1110 (9th Cir. 2008) (21 U.S.C. § 843(b) is a
drug trafficking offense).
Sanchez Ramirez did not raise in his opening brief, and therefore waives,
any challenge to the agency’s denial of his motion to remand based on ineffective
assistance of counsel and to seek withholding of removal and protection under the
Convention Against Torture. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-
80 (9th Cir. 2013) (issues not specifically and distinctly argued in an opening brief
are waived); Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (“Issues raised for
the first time in the reply brief are waived.”).
We do not consider the extra-record documents included with Sanchez
Ramirez’s opening brief because the court’s review is generally limited to the
administrative record. See 8 U.S.C. § 1252(b)(4)(A); Dent v. Holder, 627 F.3d 365,
371 (9th Cir. 2010) (stating standard for review of out-of-record evidence).
PETITION FOR REVIEW DENIED.

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