GARCIA ANDRADE v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-08-26No. No. 15-71749

Summary · law.co

Holding. The court denied Garcia-Andrade's petition for review, affirming the Board of Immigration Appeals' dismissal of his appeal and upholding the denial of his applications for cancellation of removal and adjustment of status.

Alejandro Garcia-Andrade, a Mexican citizen, sought review of an immigration board's decision denying his applications for cancellation of removal and adjustment of status. Garcia-Andrade was convicted under California Health & Safety Code section 11550(a) for being under the influence of a controlled substance. He argued that his conviction should not disqualify him from relief and raised equal protection and due process claims.

The court found that Garcia-Andrade failed to meet his burden of proving that his conviction does not constitute a drug-related offense that renders him ineligible for the requested relief. The court rejected his equal protection argument because the extension of favorable federal sentencing treatment to such convictions occurred more than a decade after his own conviction and has since been overturned. Similarly, his due process challenge was unsuccessful because he demonstrated no legal error in the immigration judge's decision.

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

Key issues

Whether a conviction under California Health & Safety Code section 11550(a) for being under the influence of a controlled substance disqualifies an applicant from cancellation of removal
Whether an applicant bears the burden of proving a conviction is not drug-related when the record is ambiguous
Whether retroactive changes in federal sentencing law create equal protection violations in immigration proceedings
Whether due process requires treating expunged state drug convictions the same as federal convictions under the Federal First Offender Act

Procedural posture

Garcia-Andrade petitioned for review of the Board of Immigration Appeals' order dismissing his appeal from an immigration judge's denial of his applications for cancellation of removal and adjustment of status.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Alejandro Garcia-Andrade, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judges decision denying his applications for cancellation of removal and adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, including claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny the petition for review.

The agency properly denied cancellation of removal and adjustment of status, where Garcia-Andrade failed to meet his burden of proof to establish that his conviction under California Health & Safety Code (“CHSC”) section 11550(a) is not a controlled substance violation that renders him ineligible for these forms of relief. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C), 1255(i)(2)(A); see also 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); Tejeda v. Barr, 960 F.3d 1184, 1186 (9th Cir. 2020) (holding CHSC § 11550(a) is divisible with regard to substance); Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir. 2018) (Federal First Offender Act (“FFOA”) treatment “only applies to first time drug offenders convicted of simple possession of a controlled substance”).

Garcia-Andrades equal protection and due process arguments fail, where Garcia-Andrade entered his plea thirteen years before FFOA treatment was extended to vacated convictions for being under the influence of a controlled substance and that extension has since been overruled. See Nunez-Reyes v. Holder, 646 F.3d 684, 690, 695 n.7 (9th Cir. 2011) (holding that “equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA” and considering that there was no evidence that litigants had relied on Rice v. Holder, 597 F.3d 952, 957 (9th Cir. 2010) (holding “that persons convicted of using or being under the influence of a controlled substance, where that offense is less serious than simple drug possession” are eligible for such treatment), in determining that no “substantial inequitable results” arose from the retroactive application of the decision to overrule Rice); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.