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 the petition for review, upholding the agency's denial of cancellation of removal and adjustment of status where Garcia-Andrade failed to prove his conviction was not a controlled substance violation, and rejecting his equal protection and due process challenges.

Alejandro Garcia-Andrade, a Mexican citizen, sought review of the Board of Immigration Appeals' dismissal of his appeal challenging an immigration judge's denial of his applications for cancellation of removal and adjustment of status. Garcia-Andrade's primary obstacle was a conviction under California Health & Safety Code section 11550(a) for being under the influence of a controlled substance, which rendered him statutorily ineligible for the relief he requested. The court found that Garcia-Andrade failed to meet his burden of proving that his conviction did not constitute a controlled substance violation, particularly given that the relevant statute is divisible and the record did not establish which element of the offense supported his conviction.

Garcia-Andrade also raised constitutional challenges, arguing that equal protection and due process principles supported his eligibility despite the conviction. The court rejected these arguments, noting that Garcia-Andrade entered his guilty plea thirteen years before federal law was temporarily extended to cover his type of conviction, and that this extension was later overruled. The court determined that equal protection doctrine does not require identical treatment of state and federal drug convictions for immigration purposes, and that no substantial inequitable results flowed from the retroactive application of the law change.

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

Key issues

Whether a divisible conviction for being under the influence of a controlled substance renders an applicant ineligible for cancellation of removal
Burden of proof required to establish eligibility when a conviction statute is divisible
Equal protection challenge to differential treatment of state and federal drug convictions in immigration proceedings
Due process claim based on retroactive application of changed federal law regarding controlled substance convictions

Procedural posture

Garcia-Andrade petitioned for review of the Board of Immigration Appeals' decision dismissing his appeal from an immigration judge's denial of relief.

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.