Israel Climaco v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 8, 2020
• Docket: 17-70868
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISRAEL DE JESUS CLIMACO, No. 17-70868

Petitioner, Agency No. A073-930-366

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted May 4, 2020** Pasadena, California

Before: OWENS and BADE, Circuit Judges, and MOSKOWITZ,*** District Judge.

Israel de Jesus Climaco, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to

* 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). *** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. reopen. Climaco sought to reopen removal proceedings to reapply for cancellation

of removal after the expungement of his 1996 conviction for the offense of “offer

to sell marijuana” under California Health & Safety Code (“CHSC”) section

11360(a). As the parties are familiar with the facts, we do not recount them here.

We deny the petition for review.

1. Climaco argues that the BIA’s decision violated his due process rights,

which “is a purely legal issue [that] is reviewed de novo.” Hamazaspyan v.

Holder, 590 F.3d 744, 747 (9th Cir. 2009) (citation omitted). Climaco contends

that the BIA failed to clearly indicate whether it denied his motion to reopen as

untimely, on the merits, or on both grounds. However, this court can discern that

the BIA denied Climaco’s motion as both untimely and on the merits, and the BIA

provided sufficient explanation for each ground. See Delgado v. Holder, 648 F.3d

1095, 1107 (9th Cir. 2011) (en banc) (stating that “[d]ue process and this court’s

precedent require a minimum degree of clarity in dispositive reasoning and in the

treatment of a properly raised argument” (citation omitted)). Thus, the BIA’s

decision did not violate Climaco’s due process rights.

2. Climaco also argues that the BIA erred in determining that his expunged

conviction for offering to sell marijuana under CHSC section 11360(a) was not

eligible for Federal First Offender Act (“FFOA”) treatment. “We review de novo

the BIA’s determination ‘that a controlled substance conviction precludes

2 immigration relief as a matter of law.’” Nunez-Reyes v. Holder, 646 F.3d 684, 688

(9th Cir. 2011) (en banc) (citation omitted).

At the time of Climaco’s offer-to-sell-marijuana conviction, the law in this

circuit provided that, based on the FFOA, an expunged state conviction does not

constitute a “conviction” for immigration purposes if it was a first-time offense for

simple possession of drugs, or an equivalent or lesser offense such as possession of

drug paraphernalia. See Ramirez-Altamirano v. Holder, 563 F.3d 800, 812 (9th

Cir. 2009), overruled prospectively by Nunez-Reyes, 646 F.3d at 690; Lujan-

Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000), overruled prospectively by

Nunez-Reyes, 646 F.3d at 690.

The BIA properly determined that Climaco’s offer-to-sell-marijuana

conviction is not a lesser offense than simple possession, and therefore his

conviction was not subject to FFOA treatment. See Nunez-Reyes, 646 F.3d at 695

(holding that a conviction for “[b]eing under the influence is not a lesser offense to

simple possession because it arguably is more serious than mere possession” and is

“qualitatively different from any federal conviction for which FFOA treatment

would be available” since it “is not a possession crime at all”).

PETITION FOR REVIEW DENIED.