Pedro Madrigal-Barcenas v. Eric Holder, Jr. , 507 F. App'x 715 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO MADRIGAL-BARCENAS, aka No. 10-72049
Juan Reynosa-Varsenas,
Agency No. A088-914-486
Petitioner,
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 January 14, 2013
San Francisco, California
Before: NOONAN, TASHIMA, and GRABER, Circuit Judges.
Pedro Madrigal-Barcenas petitions for review of the Board of Immigration
Appeals’ denial of his application for cancellation of removal on account of his
conviction for possession of drug paraphernalia in violation of section 453.566 of
the Nevada Revised Statutes. Reviewing de novo, Ruiz-Vidal v. Gonzales, 473
F.3d 1072, 1076 n.2 (9th Cir. 2007), we deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. A nonpermanent resident may be eligible for cancellation of removal
only if he "has not been convicted of an offense under [8 U.S.C. § 1182(a)(2)]." 8
U.S.C. § 1229b(b)(1)(C). The offenses listed under § 1182(a)(2) include violations
of "any law . . . relating to a controlled substance (as defined in section 802 of Title
21)." 8 U.S.C. § 1182(a)(2)(A)(i)(II). A state statute that criminalizes possession
of paraphernalia for use with drugs may be a law "relating to a controlled
substance" for these purposes. Minh Duc Luu-Le v. INS, 224 F.3d 911, 916 (9th
Cir. 2000).
2. The facts of this case are analogous to those in previous decisions
regarding other states’ drug paraphernalia statutes: United States v. Oseguera-
Madrigal, 700 F.3d 1196, 1199–200 (9th Cir. 2012); Bermudez v. Holder, 586 F.3d
1167, 1168–69 (9th Cir. 2009) (per curiam); Estrada v. Holder, 560 F.3d 1039,
1042 (9th Cir. 2009); and Luu-Le, 224 F.3d at 915–16. Those cases require denial
of the petition because Nevada’s drug-paraphernalia statute is materially identical
to the statutes that we considered there.
3. Because the waiver to inadmissibility under § 1182(h) does not affect
eligibility for cancellation, In re Bustamante, 25 I. & N. Dec. 564, 567 (B.I.A.
2011), interpretations of that provision, e.g., In re Espinoza, 25 I. & N. Dec. 118,
123–26 (B.I.A. 2009), and of the "personal use" exception to deportability under
2
§ 1227, e.g., In re Davey, 26 I. & N. Dec. 37, 38–41 (B.I.A. 2012), are not relevant
here.
PETITION DENIED.
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