ROBLES CALVILLO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-07-23No. No. 14-73197

Summary · law.co

Holding. The petition for review is denied. The Board of Immigration Appeals properly applied the modified categorical approach to Robles-Calvillo's convictions and correctly determined that his criminal history rendered him removable and ineligible for cancellation of removal.

Jose Robles-Calvillo, a Mexican citizen, sought review of a Board of Immigration Appeals decision that found him removable and denied his application for cancellation of removal. The court examined whether his convictions under California Health and Safety Code section 11377(a) qualified as controlled substance offenses under immigration law. The court upheld the agency's conclusion that the statute is divisible, meaning courts can look beyond the conviction record to determine which specific drugs were involved in each offense.

Regarding Robles-Calvillo's two convictions—one from 2007 and one from 1994—the court found no error in the agency's determinations. For the 2007 conviction, the agency properly concluded it involved a controlled substance, making him removable. For the 1994 conviction, the court agreed that Robles-Calvillo failed to prove the offense did not involve a controlled substance, leaving him ineligible for cancellation of removal because his conviction record did not clearly establish which controlled substance, if any, was involved.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether California Health and Safety Code § 11377(a) is a divisible statute subject to the modified categorical approach
Whether Robles-Calvillo's 2007 conviction constitutes an offense relating to a controlled substance
Whether Robles-Calvillo established eligibility for cancellation of removal given an inconclusive 1994 conviction record

Procedural posture

Robles-Calvillo petitioned for review of a Board of Immigration Appeals decision affirming an immigration judge's removal order and denial of cancellation of removal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Jose Robles-Calvillo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges decision finding him removable and denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). We deny the petition for review.

The BIA did not err in concluding that California Health and Safety Code (“CHSC”) § 11377(a) is divisible and in applying the modified categorical approach to its analysis of Robles-Calvillos conviction under the section. See id. at 984-85 (holding that CHSC § 11377(a) is divisible and subject to the modified categorical approach); see also United States v. Martinez-Lopez, 864 F.3d 1034, 1040-41 (9th Cir. 2017) (en banc) (holding that a similar California controlled substance statute is divisible with respect to the listed substances). Thus, the agency did not err in concluding that Robles-Calvillos 2007 conviction under CHSC § 11377(a) is an offense relating to a controlled substance that renders him removable. See 8 U.S.C. § 1227(a)(2)(B)(i).

The agency did not err in determining that Robles-Calvillo failed to establish that his 1994 offense under CHSC § 11377(a) was not a controlled substance violation that renders him ineligible for cancellation of removal. See 8 U.S.C. § 1229b(d)(1); Pereida v. Wilkinson, ––– U.S. ––––, 141 S.Ct. 754, 766, 209 L.Ed.2d 47 (2021) (an applicant for relief from removal cannot establish eligibility where a conviction record is inconclusive as to which elements of a divisible statute formed the offense). Thus, Robles-Calvillos cancellation of removal claim fails.

PETITION FOR REVIEW DENIED.