Emilio Hernandez v. Loretta E. Lynch

623 F. App'x 454

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 2015
• Docket: 13-71786
• Status: Unpublished

Opinion

MEMORANDUM **

Emilio Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand.

At the time the BIA determined that Hernandez was ineligible for cancellation of removal because his conviction for possession of controlled substance paraphernalia under Cal. Health & Safety Code § 11364 terminated his accrual of continuous physical presence, see 8 U.S.C. § 1229b(d)(1), our precedent held that a conviction under that statute was categorically an offense “relating to a controlled substance” under 8 U.S.C. § 1182(a)(2)(A)(i)(II), see Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir.2009). However, in Mellouli v. Lynch, — U.S. -, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015), the Supreme Court held that a conviction for possession of drug paraphernalia does not meet this standard unless there is “a direct link between an alien’s crime of conviction and a particular federally controlled drug.” See also Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015). We therefore remand for the BIA to reconsider Hernandez’ eligibility for cancellation of removal in light of Mellouli.

In light of this disposition, we do not reach Hernandez’ remaining contentions.

PETITION FOR REVIEW GRANTED; REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.