Esteban Barragan-Zepeda v. Eric Holder, Jr. , 568 F. App'x 522 ( 2014 )

FILED
NOT FOR PUBLICATION APR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTEBAN BARRAGAN-ZEPEDA, No. 13-71296
Petitioner, Agency No. A030-531-897
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 7, 2014
Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
Esteban Barragan-Zepeda (“Barragan”), a lawful permanent resident,
petitions for review of the Board of Immigration Appeals’ decision affirming an
immigration judge’s determination that he was removable and denial of his
applications for asylum and cancellation of removal. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 8 U.S.C. § 1252, and we grant the petition with respect to asylum and
cancellation of removal and remand.
I
Contrary to the government’s contention, Barragan’s removability, asylum,
and cancellation of removal claims have been exhausted. “[W]hen the BIA cites
Burbano in its decision, all issues presented before the IJ are deemed to have been
presented to the BIA.” Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th
Cir. 2008) (citing Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en
banc)). Here, Barragan raised his challenge to removability and his asylum and
cancellation of removal claims before the IJ, and the BIA cited Burbano. All
issues are therefore exhausted.
II
The IJ properly determined that Barragan was removable. Our precedent
establishes that California Health and Safety Code § 11379(a) is overbroad and
divisible. Coronado v. Holder, --- F.3d ---, 2014 WL 983621, at *4 n.3 (9th Cir.
2014); S-Yong v. Holder, 600 F.3d 1028, 1034 n.5 (9th Cir. 2010); Hernandez-
Aguilar v. Holder, 594 F.3d 1069, 1073 (9th Cir. 2010). Thus, the IJ correctly
used the modified categorical approach to determine whether the substance
involved in Barragan’s conviction was a controlled substance under the Controlled
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Substances Act. Descamps v. United States, 133 S. Ct. 2276, 2284–85 (2013);
Hernandez-Aguilar, 594 F.3d at 1073. Because Barragan’s permissible conviction
record established that the substance was methamphetamine, which is a controlled
substance under the Act, see 21 U.S.C. § 812 scheds. II(c), III(a)(3), Barragan was
removable.
III
The IJ based her determination that Barragan’s proposed social groups were
not legally cognizable on case law that pre-dated and has been distinguished and
overruled by our recent opinion in Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th
Cir. 2013) (en banc), and by the BIA’s recent opinions in Matter of W-G-R-, 26
I&N Dec. 208 (BIA 2014), and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA
2014). Accordingly, we grant the petition and remand for consideration of
Barragan’s proposed social groups of government informants and individuals who
resist gang recruitment under Henriquez-Rivas, Matter of W-G-R-, and Matter of
M-E-V-G-.
IV
Although we lack jurisdiction to review a discretionary “judgment regarding
the granting of relief under section . . . 1229b,” 8 U.S.C. § 1252(a)(2)(B)(i), we
retain jurisdiction over “constitutional claims or questions of law,” 8 U.S.C. §
3
1252(a)(2)(D). Because Barragan argues that the IJ failed to consider certain
factors and the record as a whole in making her discretionary determination, we
have jurisdiction to hear his claim. Vilchez v. Holder, 682 F.3d 1195, 1200–01
(9th Cir. 2012).
The IJ committed legal error in making her discretionary determination that
Barragan did not warrant cancellation of removal. The IJ considered
impermissible evidence of Barragan’s criminal history, failed to consider all
relevant factors in relation to his criminal history, failed to comprehensively
consider his family ties and character, and failed to consider his substantial service
to the community as a DEA informant, all of which were relevant to this case.
Xiao Fei Zheng v. Holder, 644 F.3d 829, 833–34 (9th Cir. 2011). Accordingly, we
grant the petition and remand for consideration of all relevant factors and all record
evidence.
We need not, and do not, reach any other issues urged by the parties.
Each party shall bear their own costs for this petition review.
PETITION DENIED in part, GRANTED in part, and REMANDED.
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