John Bumatay v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2019
• Docket: 16-74044
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN MORLA BUMATAY, No. 16-74044

Petitioner, Agency No. A046-564-058

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

Respondent.

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

Submitted October 21, 2019** Honolulu, Hawaii

Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.

1. The Board of Immigration Appeals (BIA) correctly determined that John

Bumatay is removable based on his conviction for a controlled substance offense.

See 8 U.S.C. § 1227(a)(2)(B)(i). Bumatay was convicted under a Hawaii statute

prohibiting the knowing possession of certain drugs. Haw. Rev. Stat.

* 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). Page 2 of 2

§ 712-1243(1). Although that statute criminalizes the possession of at least two

drugs that are not similarly proscribed by the Controlled Substances Act, the

Hawaii statute is divisible based on the drug at issue. See Ragasa v. Holder, 752

F.3d 1173, 1176 (9th Cir. 2014). Here, under the modified categorical approach, it

is apparent that the drug underlying Bumatay’s conviction was methamphetamine,

a substance covered by the Controlled Substances Act. See 21 U.S.C. § 812(c).

Count One of the amended felony information charged Bumatay with

knowing possession of “methamphetamine,” and the judgment of conviction

reflects that he pleaded guilty to that count. The relevant conviction documents

refer to only one substance, so no reasonable possibility exists that Bumatay’s

conviction was based on the possession of another drug. United States v.

Leal-Vega, 680 F.3d 1160, 1169 (9th Cir. 2012). The fact that the relevant

conviction documents contain references to different police report numbers is

irrelevant to the analysis under the modified categorial approach.

2. Bumatay appears to challenge the immigration judge’s denial of his

application for cancellation of removal. Because Bumatay failed to raise that

challenge before the BIA, we lack jurisdiction to consider it. See 8 U.S.C.

§ 1252(d)(1); Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).

PETITION FOR REVIEW DENIED IN PART and DISMISSED IN

PART.