Jose Zepeda v. Eric H. Holder Jr.

MEMORANDUM

Jose Ernesto Zepeda petitions for review of an order of the Board of Immigration Appeals (“BIA”) finding him ineligible for asylum or withholding of removal under the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”), 8 C.F.R. § 1208.16 , and ineligible for deferral of removal under CAT, 8 C.F.R. § 1208.17 . Zepeda also argues that the government has violated his substantive and procedural due process rights. For the reasons stated below, Zepeda’s petition is DENIED.

1. Zepeda is not eligible for asylum or withholding under either the INA or CAT because he was convicted of a particularly serious crime, possession of marijuana “for sale,” in violation of California Health and Safety Code § 11359. See 8 U.S.C. § 1158 (b)(2)(A)(ii). For asylum purposes, an aggravated felony counts as a particularly serious crime, id. § 1158(b)(2)(B)(i), and “illicit trafficking in a controlled substance” qualifies as an aggravated felony, id. § 1101(a)(43)(B). This court has held that “possession of a controlled substance with the intent to sell contains a trafficking element and is an aggravated felony.” Rendon v. Mukasey, 520 F.3d 967, 976 (9th…