Jose Ramirez Carrazco v. Eric Holder, Jr. ( 2014 )

FILED
NOT FOR PUBLICATION MAR 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALFREDO RAMIREZ No. 12-70902
CARRAZCO, AKA Alfredo Ramirez,
AKA Alfredo Joe Ramirez, AKA Alfredo Agency No. A036-898-312
Jose Ramirez, AKA Jose Ramirez,
Petitioner, MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2014
San Francisco, California
Before: FARRIS, TASHIMA, and McKEOWN, Circuit Judges.
The Petitioner, Jose Alfredo Ramirez Carrazco, appeals his final order of
removal from the Board of Immigration Appeals. We have jurisdiction under 8
U.S.C. § 1252(a)(2)(D).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ramirez was not denied due process when the Immigration Judge failed to
order an independent assessment of his mental competence. The BIA’s leading
case on this issue is Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), and no
plausible reading of M-A-M- makes an independent medical evaluation required
once indicia of incompetency present themselves. Assessment is required, but the
form of that assessment is not rigidly specified. Id. at 480. Ramirez’s argument
fails.
The Immigration Judge used Ramirez’s § 11359 marijuana conviction,
which allegedly took place before the effective date of the Illegal Immigration
Reform and Immigrant Responsibility Act, to render him ineligible for cancellation
of removal. This was not an impermissible retroactive application of the Act. This
argument is foreclosed by Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007), the
relevant facts of which are nearly identical to this case.
The recent Supreme Court case Moncrieffe v. Holder, 133 S.Ct. 1678 (2013),
does not indicate that the Petitioner’s marijuana conviction cannot be an
“aggravated felony” under the immigration laws. For Moncrieffe to apply, a state
statute must punish the distribution of (1) a small amount of marijuana, for (2) no
remuneration. Id. at 1686. The California statute in contention here punishes
“possess[ion] for sale” of any amount of marijuana, and no California cases
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suggest that “sale” does not mean remuneration (as a plain reading would indicate).
CAL. HEALTH & SAFETY CODE § 11359. The Moncrieffe exception does not apply,
and § 11359 is categorically an “aggravated felony.”
Finally, the Petitioner argues that the Immigration Judge improperly
considered certain documents when establishing the Petitioner’s identity with
respect to the marijuana conviction, thereby violating Shepard v. United States,
544 U.S. 13 (2005). In making this argument, Ramirez questioned the reliability
and sufficiency of the evidence that the Immigration Judge used to determine that
Ramirez committed the offense in question. Ramirez raised this issue to the BIA,
but there is nothing in the Board’s final opinion showing that it considered the
issue. Because this is a factual question that has been entrusted to the Agency by
Congress, it is inappropriate for this Court to decide whether Ramirez has met his
burden of proving that he has not been convicted of an aggravated felony, and a
remand limited to this issue is appropriate. INS v. Orlando Ventura, 537 U.S. 12,
16 (2002).
The petition is DENIED with respect to all claims except the identity claim.
The matter is REMANDED to the Board of Immigration Appeals for the sole
purpose of considering the Petitioner’s identity argument.
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