Ronulfo Vicente v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2020
• Docket: 17-73319
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RONULFO ADAN CIFUENTES No. 17-73319 VICENTE, Agency No. A070-916-907 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 18, 2020** Pasadena, California

Before: FERNANDEZ, PAEZ, and OWENS, Circuit Judges.

Petitioner Ronulfo Adan Cifuentes Vicente, a citizen of Guatemala, petitions

for review of the Board of Immigration Appeals (BIA)’s decisions dismissing his

appeal of the Immigration Judge (IJ)’s denial of his application for cancellation of

removal. “We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to 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). questions of law when a final order of removal is predicated on a criminal

offense.” Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009). “Whether a

particular conviction is a removable offense is a question of law we review de

novo.” Id. (citation and brackets omitted). For the reasons explained below, we

grant the petition and remand.

1. Our prior decisions dictate the outcome of Cifuentes’ petition.

Although a non-citizen may generally seek cancellation of removal under 8 U.S.C.

§ 1229b, such relief is prohibited if the non-citizen has been convicted of an

offense enumerated in 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3). See

§ 1229b(b)(1)(C). Sections 1182(a)(2)(A)(i)(II) and 1227(a)(2)(B)(i) include

convictions for “a violation of (or a conspiracy or attempt to violate) any law or

regulation of a State . . . relating to a controlled substance (as defined in section

802 of Title 21).”

We have repeatedly held that generic solicitation statutes are not laws

“relating to a controlled substance.” Leyva-Licea v. INS, 187 F.3d 1147, 1149 (9th

Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir 1997); see

Mielewczyk, 575 F.3d at 996 (“[C]onvictions under generic solicitation statutes do

not render [a non-citizen] removable under 8 U.S.C. § 1227(a)(2)(B)(i), ‘even

when the underlying solicited conduct is a narcotics violation.’” (quoting Leyva-

Licea, 187 F.3d at 1149)). And we previously determined in Mielewczyk that

2 California Penal Code (CPC) section 653f(d) is a generic solicitation statute, and

thus not a law relating to a controlled substance. 575 F.3d at 998. Therefore,

Cifuentes’ conviction under CPC section 653f(d) does not render him removable

under 8 U.S.C. §§ 1227(a)(2)(B)(i) or 1182(a)(2)(A)(i)(II).

2. The BIA erred by characterizing our statement in Mielewczyk as

nonbinding dicta. When “a panel confronts an issue germane to the eventual

resolution of the case, and resolves it after reasoned consideration in a published

opinion, that ruling becomes the law of the circuit, regardless of whether doing so

is necessary in some strict logical sense.” United States v. McAdory, 935 F.3d 838,

843 (9th Cir. 2019) (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th

Cir. 2004)). “In other words, ‘well-reasoned dicta is the law of the circuit.’” Id.

(quoting Enying Li v. Holder, 738 F.3d 1160, 1164 n.2 (9th Cir. 2013)).

In Mielewczyk, we considered whether a conviction under California Health

and Safety Code (CHSC) section 11352(a) for offering to transport heroin

constituted a violation of a law “relating to a controlled substance” under 8 U.S.C.

§ 1227(a)(2)(B)(i). 575 F.3d at 993. We distinguished CHSC section 11352 from

CPC section 653f(d), concluding that only the latter is a “generic solicitation

statute.” Id. at 998. Thus, the petitioner’s conviction rendered him removable

under § 1227(a)(2)(B)(i). Id.; see also Guerrero-Silva v. Holder, 599 F.3d 1090,

1093 (9th Cir. 2010).

3 Our conclusion regarding CPC section 653f(d) was “germane to the eventual

resolution of the case.” McAdory, 935 F.3d at 843 (citation omitted). And the

issue was resolved “after reasoned consideration,” id., as the analysis compared

California and Arizona’s solicitation and controlled substance laws to determine

which were generic solicitation statutes. We are therefore bound by our prior

conclusion that CPC section 653f(d) is a generic solicitation statute, and not a law

relating to a controlled substance. The BIA erred by concluding otherwise.

Accordingly, for the above reasons, we grant Cifuentes’ petition for review

and remand to the agency for further proceedings consistent with this disposition.

Petition for review GRANTED and REMANDED.