Sawyers v. Mukasey

Ninth Circuit

Sawyers v. Mukasey

684 F.3d 911, 2012 WL 2507513, 2012 U.S. App. LEXIS 13338

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 29, 2012

Docket08-70181

StatusPublished

Cited by12 cases

This text of 684 F.3d 911 (Sawyers v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sawyers v. Mukasey, 684 F.3d 911, 2012 WL 2507513, 2012 U.S. App. LEXIS 13338 (9th Cir. 2012).

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Opinion

OPINION

PER CURIAM:

Petitioner Damien Antonio Sawyers petitions for review from the Board of Immi *912 gration Appeals’ (“BIA”) denial of cancellation of removal under 8 U.S.C. § 1229b(a). The BIA held that Petitioner could not demonstrate that he met the seven-year continuous residence requirement, id. § 1229b(a)(2). In our original decision, we followed Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), and Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir.2009), to hold that the years of residence of Petitioner’s mother were imputed to him. Sawyers v. Holder, 399 Fed.Appx. 313 (9th Cir.2010) (unpublished decision). We therefore granted the petition. Id. at 314. The Supreme Court granted certiorari, Holder v. Sawyers, -U.S.-, 132 S.Ct. 71, 180 L.Ed.2d 939 (2011), and reversed our decision, Holder v. Martinez Gutierrez, —U.S.-, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012). Because Cuevas-Gaspar and Mercado-Zazueta are no longer valid precedent on the issue of imputation under 8 U.S.C. § 1229b, we now reject Petitioner’s imputation argument concerning his mother’s residence.

In the alternative, 1 Petitioner challenges the BIA’s determination that his 2002 conviction terminated his continuous residence. See 8 U.S.C. § 1229b(d)(1). Specifically, Petitioner argues that his conviction for “maintaining a dwelling for keeping controlled substances,” in violation of 16 Delaware Code section 4755(a)(5) (2002), might have qualified as “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. § 1227(a)(2)(B)®. We disagree. The indictment alleged that Petitioner maintained a specific dwelling that was used for keeping controlled substances as described in one or more of the five other counts. Four of those counts involve cocaine, not marijuana. The fifth count alleges possession of marijuana with intent to distribute. Accordingly, it is not possible that Petitioner’s conviction involved only “possession for one’s own use of 30 grams or less of marijuana.” Id. (emphasis added).

Petition DENIED.

1

. Because we granted the petition in our original decision, we did not reach this alternative argument.

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OPINION

PER CURIAM:

Petitioner Damien Antonio Sawyers petitions for review from the Board of Immi *912 gration Appeals’ (“BIA”) denial of cancellation of removal under 8 U.S.C. § 1229b(a). The BIA held that Petitioner could not demonstrate that he met the seven-year continuous residence requirement, id. § 1229b(a)(2). In our original decision, we followed Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), and Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir.2009), to hold that the years of residence of Petitioner’s mother were imputed to him. Sawyers v. Holder, 399 Fed.Appx. 313 (9th Cir.2010) (unpublished decision). We therefore granted the petition. Id. at 314. The Supreme Court granted certiorari, Holder v. Sawyers, -U.S.-, 132 S.Ct. 71, 180 L.Ed.2d 939 (2011), and reversed our decision, Holder v. Martinez Gutierrez, —U.S.-, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012). Because Cuevas-Gaspar and Mercado-Zazueta are no longer valid precedent on the issue of imputation under 8 U.S.C. § 1229b, we now reject Petitioner’s imputation argument concerning his mother’s residence.

In the alternative, 1 Petitioner challenges the BIA’s determination that his 2002 conviction terminated his continuous residence. See 8 U.S.C. § 1229b(d)(1). Specifically, Petitioner argues that his conviction for “maintaining a dwelling for keeping controlled substances,” in violation of 16 Delaware Code section 4755(a)(5) (2002), might have qualified as “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. § 1227(a)(2)(B)®. We disagree. The indictment alleged that Petitioner maintained a specific dwelling that was used for keeping controlled substances as described in one or more of the five other counts. Four of those counts involve cocaine, not marijuana. The fifth count alleges possession of marijuana with intent to distribute. Accordingly, it is not possible that Petitioner’s conviction involved only “possession for one’s own use of 30 grams or less of marijuana.” Id. (emphasis added).

Petition DENIED.

1

. Because we granted the petition in our original decision, we did not reach this alternative argument.

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684 F.3d 911, 2012 WL 2507513, 2012 U.S. App. LEXIS 13338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sawyers-v-mukasey-ca9-2012.

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