Alejandro Garcia-Andrade v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2021
• Docket: 15-71749
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEJANDRO GARCIA-ANDRADE, No. 15-71749

Petitioner, Agency No. A091-857-082

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Alejandro Garcia-Andrade, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his applications for cancellation of removal

and adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review

* 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). de novo questions of law, including claims of due process violations in

immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We

deny the petition for review.

The agency properly denied cancellation of removal and adjustment of

status, where Garcia-Andrade failed to meet his burden of proof to establish that

his conviction under California Health & Safety Code (“CHSC”) section 11550(a)

is not a controlled substance violation that renders him ineligible for these forms of

relief. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C), 1255(i)(2)(A); see

also Pereida v. Wilkinson, 141 S. Ct. 754, 766 (2021) (an applicant for relief from

removal cannot establish eligibility where a conviction record is inconclusive as to

which elements of a divisible statute formed the offense); Tejeda v. Barr, 960 F.3d

1184, 1186 (9th Cir. 2020) (holding CHSC § 11550(a) is divisible with regard to

substance); Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir. 2018) (Federal First

Offender Act (“FFOA”) treatment “only applies to first time drug offenders

convicted of simple possession of a controlled substance”).

Garcia-Andrade’s equal protection and due process arguments fail, where

Garcia-Andrade entered his plea thirteen years before FFOA treatment was

extended to vacated convictions for being under the influence of a controlled

substance and that extension has since been overruled. See Nunez-Reyes v. Holder,

646 F.3d 684, 690, 695 n.7 (9th Cir. 2011) (holding that “equal protection does not

2 15-71749 require treating, for immigration purposes, an expunged state conviction of a drug

crime the same as a federal drug conviction that has been expunged under the

FFOA” and considering that there was no evidence that litigants had relied on Rice

v. Holder, 597 F.3d 952, 957 (9th Cir. 2010) (holding “that persons convicted of

using or being under the influence of a controlled substance, where that offense is

less serious than simple drug possession” are eligible for such treatment), in

determining that no “substantial inequitable results” arose from the retroactive

application of the decision to overrule Rice); see also Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.

3 15-71749