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Ramirez-Rivera v. United States

United States District Court, D. Nevada

April 22, 2019

JAVIER RAMIREZ-RIVERA, Petitioner,
v.
THE UNITED STATES OF AMERICA, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         Ramirez-Rivera 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 paraphernalia.

         According 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).[1]Third, once those obstacles are set aside, he must obtain a favorable decision on the petitions to adjust his status.

         The 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).[2] 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 state statute.

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.

         Mellouli 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 categorical approach:

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.

         I do 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.

         Even if 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.

         I do 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.

         Faced 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 ...


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