United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
Javier Ramirez-Rivera has filed a reply to the response. ECF
No. 12. I will stay this action while Ramirez-Rivera pursues
his administrative remedies.
is a Mexican citizen who entered the United States without
authorization. He is removable from the United States for
that reason. Ramirez-Rivera also has two criminal convictions
that immigration authorities have ruled also make him
removable from the United States. See 8 U.S.C.
§ 1227(a)(2)(B)(i). One conviction is for misdemeanor
possession of 30 grams or less of marijuana. The second
conviction is for misdemeanor possession of drug
to Ramirez-Rivera, he has a path to remaining in the United
States. First, he must obtain a ruling that the conviction
for misdemeanor possession of drug paraphernalia is not a
removable offense. Second, he must obtain a waiver of the
conviction of misdemeanor possession of 30 grams or less of
marijuana as a removable offense. See 8 U.S.C.
§ 1182(h).Third, once those obstacles are set aside,
he must obtain a favorable decision on the petitions to
adjust his status.
Supreme Court has held that, under the categorical approach,
a Kansas conviction for possession of drug paraphernalia is
not a removable offense. Mellouli v. Lynch, 130
S.Ct. 1980 (2015). The Ninth Circuit has held that, under the
categorical approach, a Nevada conviction for possession of
drug paraphernalia is not a removable offense.
Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir.
2015). The Supreme Court in Mellouli
described the categorical approach:
Because Congress predicated deportation “on
convictions, not conduct, ” the approach looks to the
statutory definition of the offense of conviction, not to the
particulars of an alien's behavior. . . . The state
conviction triggers removal only if, by definition, the
underlying crime falls within a category of removable
offenses defined by federal law. . . . An alien's actual
conduct is irrelevant to the inquiry, as the adjudicator must
“presume that the conviction rested upon nothing more
than the least of the acts criminalized” under the
Mellouli, 135 S.Ct. at 1986 (citations omitted). A
conviction for possession of drug paraphernalia in Kansas, as
in Mellouli, or in Nevada, as in
Madrigal-Barcenas, is not a removable offense under
the categorical approach because the state schedules of
controlled substances in both Kansas and Nevada list
substances that the federal schedules of controlled
substances do not list. 135 S.Ct. at 1988, 797 F.3d at 645.
Instead, the conviction for possession of drug paraphernalia
must have some connection to a drug listed in the federal
schedule of controlled substances. Mellouli, 135
S.Ct. at 1990-91.
and Madrigal-Barcenas do not hold that no conviction
for possession of drug paraphernalia is a removable offense.
Both Mellouli and Madrigal-Barcenas left
open the question whether a conviction for possession of drug
paraphernalia could be a removable offense under the modified
In such cases, “a court may determine which particular
offense the noncitizen was convicted of by examining the
charging document and jury instructions, or in the case of a
guilty plea, the plea agreement, plea colloquy, or some
comparable judicial record of the factual basis for the
plea.” . . . Off limits to the adjudicator, however, is
any inquiry into the particular facts of the case.
Mellouli, 135 S.Ct. at 1986 n.4 (citations omitted).
The Ninth Circuit remanded its case to the Board of
Immigration Appeals for consideration whether the modified
categorical approach would apply to a Nevada
drug-paraphernalia conviction. Madrigal-Barcenas,
797 F.3d at 645.
not have the necessary information to rule upon the potential
application of the modified categorical approach.
Ramirez-Rivera did not attach any state-court documents of
his drug-paraphernalia case. Likewise, the respondents did
not attach any of those documents to their response.
I had the necessary information rule under the modified
categorical approach, and even if I ruled in
Ramirez-Rivera's favor, this would not be the end of his
efforts to obtain relief from removal. First, Ramirez-Rivera
still would need to obtain a waiver of his
marijuana-possession conviction as a reason for removal.
Second, the petitions to adjust his status still would need
to be approved.
not have jurisdiction to rule on those two issues. 8 U.S.C.
§ 1252(g). Ramirez-Rivera would need to present those
issues through the administrative process. Judicial review
would then occur through the procedures outlined in 8 U.S.C.
§ 1252. Habeas corpus is not part of those procedures.
Ramirez-Rivera must return to the Board of Immigration
Appeals to obtain relief, whether now or later.
with a similar situation in Madrigal-Barcenas-a
question whether the modified categorical approach worked for
a drug-paraphernalia conviction and a request for a
cancellation of removal-the Ninth Circuit remanded the case
to the Board of Immigration Appeals. 797 F.3d at 645. Remand
is not ...