Maria Carballo-Miranda v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA EUGENIA CARBALLO- No. 19-70637
MIRANDA, AKA Maria Eugenia Carvallo,
AKA Maria Del Rosario Ramirez, Agency No. A092-675-655
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.
Maria Eugenia Carballo-Miranda petitions for review of the Board of
Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) decision
ordering her removed from the United States and finding her ineligible for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
cancellation of removal under 8 U.S.C. § 1229b.1 We have jurisdiction under 8
U.S.C. § 1252. Dominguez v. Barr, 975 F.3d 725, 733–34 (9th Cir. 2020).
The question of whether a conviction is an aggravated felony is a legal
question that we review de novo. See id.; Jauregui-Cardenas v. Barr, 946 F.3d
1116, 1118 (9th Cir. 2020). An alien is ineligible for cancellation of removal if she
has been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3).
Carballo-Miranda was convicted of conspiracy to sell, transport, or offer to sell
heroin under California Penal Code § 182(a)(1) and California Health & Safety Code
§ 11352(a). The BIA determined that Carballo-Miranda had not met her burden of
demonstrating her conviction was not an aggravated felony and therefore had not
shown she was eligible for cancellation of removal.
We agree. The statutes under which Carballo-Miranda was convicted,
California Penal Code § 182(a)(1) and California Health & Safety Code § 11352(a),
are divisible statutes covering both offenses that qualify as aggravated felonies and
offenses that do not. Marinelarena v. Garland, 6 F.4th 975, 977 (9th Cir. 2021)
(holding that California Penal Code § 182(a) is divisible);2 United States v.
1
Carballo-Miranda has not challenged the IJ’s denial of her request for voluntary
departure on appeal.
2
Marinelarena “incorporate[d] by reference . . . Part A of the discussion” from a
previously vacated decision in the same litigation, Marinelarena v. Sessions, 869
F.3d 780 (9th Cir. 2017), “which concerns overbreadth and divisibility.” 6 F.4th at
2
Martinez-Lopez, 864 F.3d 1034, 1037 (9th Cir. 2017) (en banc) (holding that
California Health & Safety Code § 11352(a) is divisible). Specifically, section
11352(a) (the drug offense underlying Carballo-Miranda’s conspiracy charge) is
divisible in two ways: it is divisible as to its controlled substance requirement (the
types of controlled substances criminalized) and as to its actus reus requirement (the
types of activity criminalized). Martinez-Lopez, 864 F.3d at 1037. We thus apply
the modified categorical approach and ask whether the crime Carballo-Miranda
committed is an aggravated felony. Mathis v. United States, 579 U.S. 500, 505–06
(2016).
Carballo-Miranda does not dispute that heroin was the controlled substance
involved in her offense. Instead, she focuses on section 11352(a)’s actus reus
requirement. She argues that the BIA erred by (1) placing the burden on her to prove
that her conviction was not an aggravated felony and (2) finding that an inconclusive
record as to what heroin-related conduct Carballo-Miranda was convicted for was
insufficient to satisfy her burden.
We reject Carballo-Miranda’s arguments. The BIA properly placed the
burden on Carballo-Miranda to prove that her conviction was not an aggravated
felony. See 8 U.S.C. § 1229a(c)(4); Pereida v. Wilkinson, 141 S. Ct. 754, 763
977. Part A of the previously vacated opinion held that section 182(a) is divisible.
869 F.3d at 786–87.
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(2021); Marinelarena, 6 F.4th at 978. The BIA also properly determined that where
Carballo-Miranda’s only argument is that the record is inconclusive as to what type
of conduct she was convicted for, she has failed to satisfy her burden to show that
her conviction was not an aggravated felony. See Pereida, 141 S. Ct. at 763 & n.4;
Marinelarena, 6 F.4th at 978. Carballo-Miranda’s attempt to distinguish Pereida
because the petitioner in that case was not charged with conspiracy and refused to
disclose certain details of his conviction is unavailing. These facts were not relevant
to the Supreme Court’s holding that an ambiguous record of conviction is
insufficient to satisfy the petitioner’s burden. Pereida, 141 S. Ct. at 763 & n.4.
PETITION DENIED.
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