Ismael Rivas Cotas v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ISMAEL RIVAS COTAS, AKA Ismael No. 20-70219 Rivas Cota, Agency No. A205-272-235 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 13, 2023** San Francisco, California Before: MILLER, SANCHEZ, and MENDOZA, Circuit Judges. Ismael Rivas Cotas, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision, affirming the Immigration Judge’s (“IJ”) denial of his motion for reconsideration. 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). 8 U.S.C. § 1252, and we deny the petition. Petitioner contends the BIA erred in denying sua sponte reconsideration based on our decision in Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), withdrawn on denial of reh’g sub nom. Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), and superseded sub nom. Lorenzo v. Whitaker, 752 F. App’x 482 (9th Cir. 2019). Because Lorenzo v. Sessions was withdrawn and superseded by a non- precedential memorandum disposition, the BIA did not err in concluding that petitioner’s motion for reconsideration is not supported by binding circuit precedent. See Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th Cir. 2020). Moreover, United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020), forecloses petitioner’s claim. Rodriguez-Gamboa held “as a matter of law, that California’s definition of methamphetamine is a categorical match to the definition under the federal [Controlled Substances Act].” Id. at 1154 n.5. The BIA did not abuse its discretion in denying the petitioner’s motion for reconsideration. See Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017). PETITION DENIED. 2