Emilio Hernandez v. Loretta E. Lynch ( 2015 )

FILED
NOT FOR PUBLICATION NOV 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIO HERNANDEZ, AKA Emilio No. 13-71786
Agustin Hernandez,
Agency No. A079-531-005
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Emilio Hernandez, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for cancellation of removal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and
remand.
At the time the BIA determined that Hernandez was ineligible for
cancellation of removal because his conviction for possession of controlled
substance paraphernalia under Cal. Health & Safety Code § 11364 terminated his
accrual of continuous physical presence, see 8 U.S.C. § 1229b(d)(1), our precedent
held that a conviction under that statute was categorically an offense “relating to a
controlled substance” under 8 U.S.C. § 1182(a)(2)(A)(i)(II), see Estrada v.
Holder, 560 F.3d 1039, 1042 (9th Cir. 2009). However, in Mellouli v. Lynch, –
U.S. – , 135 S. Ct. 1980, 192 L. Ed. 2d 60 (2015), the Supreme Court held that a
conviction for possession of drug paraphernalia does not meet this standard unless
there is “a direct link between an alien’s crime of conviction and a particular
federally controlled drug.” See also Madrigal-Barcenas v. Lynch, 797 F.3d 643
(9th Cir. 2015). We therefore remand for the BIA to reconsider Hernandez’
eligibility for cancellation of removal in light of Mellouli.
In light of this disposition, we do not reach Hernandez’ remaining
contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 13-71786