MacJhay Yagao v. Jefferson Sessions ( 2018 )

FILED
NOT FOR PUBLICATION
MAY 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MACJHAY YAGAO, No. 16-72812
Petitioner, Agency No. A044-946-445
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2018
Pasadena, California
Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.
Macjhay Yagao petitions for review of the determination by the Immigration
Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) (collectively, the
“Agency”) that he is removable based on his conviction of transporting more than
28.5 grams of marijuana. See Cal. Health & Safety Code § 11360(a). He contends
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
that his conviction was for an offense “relating to a controlled substance,” but that
the facts underlying the conviction met the “possession for one’s own use”
exception to removal for only a single prior drug offense. See 8 U.S.C.
§ 1227(a)(2)(B)(i).
Yagao’s transportation of marijuana conviction was his second conviction
under Cal. Health & Safety Code § 11360(a). He was previously convicted of
importing marijuana into California, a felony offense. He is therefore ineligible for
the exemption from removal for “a single offense involving possession for one’s
own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis
added). Yagao argues, however, that because his earlier conviction was not
specified in his notice to appear, and because the Agency did not consider his
earlier conviction, we may not uphold the Agency’s removal finding on this
ground. Even if we assume that he is correct, Yagao is nonetheless removable on
the grounds the Agency addressed.
Yagao contends that the Agency should have applied a categorical instead of
a circumstance-specific approach to determining whether his state conviction for
transportation of marijuana met the federal statute’s personal use exemption from
removal. Yagao cannot show that the state statute of conviction criminalizes
conduct that would qualify for the exemption.
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Under the categorical approach, we determine whether the state statute
criminalizes conduct that extends beyond the bounds of the federal offense, such as
possession for one’s own use of 30 grams or less of marijuana. See Guerrero-Silva
v. Holder, 599 F.3d 1090, 1092 (9th Cir. 2010). The state statute criminalizes
transportation of marijuana, which is a separate offense from possession of
marijuana under California law. Compare Cal. Health & Safety Code § 11357,
with id. § 11360. California treats transportation as a more serious offense than
mere possession for personal use. See People v. Rogers, 486 P.2d 129, 133–34
(Cal. 1971) (In Bank), superseded by statute on other grounds as recognized by
People v. Martinez, 413 P.3d 1125 (Cal. 2018); see also Martinez, 413 P.3d at
1129. Thus, Yagao is not exempted from removal, because his state conviction of
transportation of marijuana is a categorical match to the federal removal statute
that encompasses crimes relating to controlled substances other than a single
offense involving possession for one’s own use of 30 grams or less of marijuana.
There was no abuse of discretion in the Agency’s refusing to grant multiple
continuances. See Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015) (reviewing
denial of continuance for abuse of discretion).
We recently held that we have jurisdiction to review the Agency’s denial of
administrative closure. Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 893 (9th Cir.
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2018). We review for abuse of discretion. See id. at 890–91 (citing 8 C.F.R.
§§ 1003.10(b), 1003.1(d)(1)(ii); Matter of Avetisyan, 25 I. & N. Dec. 688, 694
(BIA 2012)). Here, the Agency denied administrative closure because Yagao had
been denied post-conviction relief in state court and the prospect for federal relief
was speculative at best. There was no abuse of discretion.
Petition DENIED.
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