Cristobal Acevedo v. Eric Holder, Jr. ( 2015 )

FILED
NOT FOR PUBLICATION MAR 05 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTOBAL ACEVEDO, No. 11-72584
Petitioner, Agency No. A029-549-846
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
CRISTOBAL ACEVEDO, No. 12-70646
Petitioner, Agency No. A029-549-846
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted March 3, 2015**
Pasadena California
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
Cristobal Acevedo petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision (1) affirming the Immigration Judge’s (“IJ”) order
finding that Acevedo is removable and ineligible for cancellation of removal based
on his conviction under 21 U.S.C. § 856(a)(2), which is categorically an
aggravated felony and (2) denying Acevedo’s motion to reopen or reconsider. We
have jurisdiction under 8 U.S.C. § 1252, and we deny the petitions.
Under 8 U.S.C. § 1101(a)(43)(B), an aggravated felony is defined as “illicit
trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c) of Title 18).”
There are “two possible routes [under § 1101(a)(43)(B)] to qualify as an
aggravated felony.” Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008). A
person can commit an aggravated felony (1) under the phrase “illicit trafficking in
a controlled substance,” if the underlying crime “contains a trafficking element” or
(2) under the phrase “drug trafficking crime[,] . . . if it would be punishable as a
felony under the federal drug laws.” Id. A “drug trafficking crime,” defined under
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
18 U.S.C. § 924(c)(2), includes “any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.).” Section 856 of Title 21 is a drug
trafficking crime under 18 U.S.C. § 924(c)(2), because it is a felony under the
Controlled Substances Act, see 21 U.S.C. § 856(b) (providing that the penalty for
violation is “not more than 20 years”).
The fact that a conviction under 21 U.S.C. § 856(a)(2) may include conduct
not ordinarily considered to be “drug trafficking” does not preclude it from being a
categorical match to an aggravated felony. See Lopez v. Gonzales, 549 U.S. 47, 55
n.6 (2006); Daas v. Holder, 620 F.3d 1050, 1054 n.4 (9th Cir. 2010). Therefore,
the BIA did not err in concluding that Acevedo’s conviction qualified as an
aggravated felony, precluding cancellation of removal.1
The BIA did not abuse its discretion in denying Acevedo’s motion to reopen
or reconsider. The BIA determined that the “true” facts of Acevedo’s conviction
were not relevant, because 21 U.S.C. § 856(a)(2) was categorically an aggravated
felony. Thus, the conduct to which Acevedo pleaded guilty was not relevant.
1
We requested supplemental briefing as to whether the IJ erred in ruling
Acevedo’s conviction constituted an aggravated felony, under the law
of the case doctrine or on the basis of waiver, estoppel, or due process. After
reviewing the supplemental briefs, we find that the government’s change of mind
whether to assert that Acevedo committed an aggravated felony did not prevent the
IJ from making that finding.
3
Section 856(a)(2) is a felony under the Controlled Substances Act, therefore there
is no basis to look beyond the language of the statute. See 18 U.S.C. § 924(c)(2).
PETITIONS FOR REVIEW DENIED.
4