PEDRO MADRIGAL-BARCENAS, AKA Juan Reynosa-Varsenas, Petitioner,
LORETTA E. LYNCH, Attorney General, Respondent
On Remand from the United States Supreme Court. B.I.A. No. A088-914-486.
On remand from the United States Supreme Court, the panel granted Pedro Madrigal-Barcenas' petition for review of the Board of Immigration Appeals' decision finding him inadmissible on the ground that his Nevada state law conviction for possessing drug paraphernalia constituted a conviction for violation of a law relating to a controlled substance.
In Madrigal-Barcenas v. Lynch, 135 S.Ct. 2828 (2015), the Supreme Court vacated this court's decision for further consideration in light of Mellouli v. Lynch, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015) (holding that a drug paraphernalia possession conviction did not render an alien categorically removable), the panel held that petitioner's conviction is not a categorical controlled substance offense. The panel held that the Nevada statute is overbroad because it penalizes possession of paraphernalia in connection with substances not controlled under federal law. The panel held that petitioner was thus not inadmissible, and remanded for the agency to consider in the first instance the potential application of the modified categorical approach and the merits of petitioner's cancellation of removal application.
The panel also held in light of Mellouli that Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny (holding that it was irrelevant whether a specific drug paraphernalia conviction involved a federally controlled substance) are no longer good law, and rejected as effectively overruled the holdings in United States v. Oseguera-Madrigal, 700 F.3d 1196, 1199-1200 (9th Cir. 2012); Bermudez v. Holder, 586 F.3d 1167, 1168-69 (9th Cir. 2009) (per curiam); Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir. 2009); Luu-Le, 224 F.3d at 916.
Jon Dean, Pantea Ahmadi, Jessica Mariani, and Saurish Bhattacharjee, McDermott Will & Emery LLP, Los Angeles, California, for Petitioner.
W. Manning Evans, Senior Litigation Counsel, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Donald E. Keener, Deputy Director, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: John T. Noonan, A. Wallace Tashima, and Susan P. Graber, Circuit Judges. Opinion by Judge Graber.
GRABER, Circuit Judge
Petitioner Pedro Madrigal-Barcenas, a native and citizen of Mexico, applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b). He petitions for review of the Board of Immigration Appeals' (" BIA" ) denial of that application.
Petitioner was convicted of possessing drug paraphernalia in violation of section 453.566 of the Nevada Revised Statutes. The question on review is whether that misdemeanor conviction renders Petitioner ineligible for cancellation of removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (" Section 1182" ), which provides that an applicant is inadmissible if the applicant stands convicted under " any law or regulation . . . relating to a controlled substance (as defined in section 802 of [the Federal Controlled Substances Act])." In ruling that Petitioner was inadmissible, the BIA relied on In re Martinez-Espinoza, 25 I. & N. Dec. 118 (B.I.A. 2009), to hold that the conviction
was for violation of a law relating to a controlled substance. Applying our extant precedent to the same effect, United States v. Oseguera-Madrigal, 700 F.3d 1196, 1199-1200 (9th Cir. 2012); Bermudez v. Holder, 586 F.3d 1167, 1168-69 (9th Cir. 2009) (per curiam); Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir. 2009); Luu-Le v. INS, 224 F.3d 911, 916 (9th Cir. 2000), we ...