LEOS REYES v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-08-20No. No. 15-71607

Summary · law.co

Holding. The petition for review was dismissed in part and denied in part. The court dismissed the challenge to Federal First Offender Act treatment eligibility due to inadequate exhaustion of administrative remedies and denied the remaining petition because Leos-Reyes's controlled substance conviction renders him ineligible for cancellation of removal.

Mauricio Leos-Reyes, a Mexican citizen, sought judicial review of an immigration board decision that upheld a denial of his cancellation of removal application. The central question involved whether Leos-Reyes's conviction under California law for being under the influence of a controlled substance disqualified him from relief and whether he adequately raised certain arguments before the immigration agency.

The court found that Leos-Reyes failed to properly present one of his arguments—regarding Federal First Offender Act treatment—to the immigration agency before seeking review. The court also determined that even if this argument had been properly preserved, it would not have succeeded because the federal statute does not extend first-offender protections to convictions for being under the influence, only to simple possession convictions. Additionally, the court upheld the agency's conclusion that Leos-Reyes's specific California conviction for being under the influence constitutes a controlled substance violation that renders him statutorily ineligible for cancellation of removal.

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

Key issues

Whether petitioner exhausted administrative remedies by presenting his Federal First Offender Act argument to the Board of Immigration Appeals
Whether Federal First Offender Act protections extend to convictions for being under the influence of controlled substances
Whether a California Health & Safety Code conviction constitutes a controlled substance violation barring cancellation of removal

Procedural posture

Leos-Reyes petitioned for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of his cancellation of removal application.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Mauricio Leos-Reyes, 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 denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law. See Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). We dismiss in part and deny in part the petition for review.

Leos-Reyes failed to exhaust his challenge to the IJs determination that Federal First Offender Act (“FFOA”) treatment was unavailable under Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir. 2009). See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Leos-Reyes contends he was not required to exhaust contentions based on changes in law that occurred after the filing of his BIA brief, but even if he is correct, his contentions fail because FFOA treatment does not extend to convictions for being under the influence of a controlled substance. See Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir. 2018) (“[T]he FFOA only applies to first time drug offenders convicted of simple possession of a controlled substance.”).

The agency did not err in concluding that Leos-Reyess conviction under California Health & Safety Code (“CHSC”) § 11550(a) is a controlled substance violation that renders him ineligible for cancellation of removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C); Tejeda v. Barr, 960 F.3d 1184, 1186-87 (9th Cir. 2020) (holding CHSC § 11550(a) is divisible and applying the modified categorical approach); Coronado v. Holder, 759 F.3d 977, 986 (9th Cir. 2014) (“Where the minute order or other equally reliable document specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint.”).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.