Narayan Nath v. Loretta E. Lynch

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NARAYAN PRASAD NATH, No. 13-72412
Petitioner, Agency No. A034-096-893
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 13, 2016
San Francisco, California
Before: McKEOWN, SACK**, and FRIEDLAND, Circuit Judges.
Petitioner Narayan Prasad Nath, a native and citizen of Fiji, petitions for
review of a decision by the Board of Immigration Appeals (“BIA”) affirming an
order of an Immigration Judge (“IJ”), which found Nath removable because he had
been convicted of an aggravated felony and ineligible for cancellation of removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
and other relief under the Immigration and Nationality Act and the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D),
and we deny the petition.
The BIA did not contravene the mandate of Nath v. Gonzales, 467 F.3d 1185(9th Cir. 2006) (Nath I), by examining on remand whether Nath’s vacated
conviction under California Health and Safety Code § 11378 for possession for
sale of methamphetamine remained valid for removal purposes. Cf. Mendez-
Gutierrez v. Gonzales, 444 F.3d 1168, 1172-73 (9th Cir. 2006) (holding that the
rule of mandate applies to decisions of the BIA on remand from this court). The
“procedural posture” of the case may be considered in construing the scope of the
Nath I mandate. United States v. Kellington, 217 F.3d 1084, 1093 (9th Cir. 2000).
Nath I’s posture reveals that our decision did not address the merits of the removal
charge based on the § 11378 conviction, because we were reviewing only the
BIA’s denial of Nath’s motion to reopen. See Nath I, 467 F.3d at 1187. By
granting the petition to review that denial, Nath I mandated the reopening of
proceedings. Id. at 1190 (“The motion to reopen . . . must be considered by the
BIA.”). The agency acted in accordance with that mandate by reevaluating its
earlier removal decision in light of newly introduced evidence about the change-of-
2
plea proceedings. See Kellington, 217 F.3d at 1092-93 (explaining that “although
lower courts are obliged to execute the terms of a mandate, they are free as to
‘anything not foreclosed by the mandate’” (quoting Herrington v. County of
Sonoma, 12 F.3d 901, 904 (9th Cir. 1993))). The BIA also did not violate the law
of the case, given that the change-of-plea transcripts constituted “substantially
different” evidence on remand. United States v. Renteria, 557 F.3d 1003, 1006
(9th Cir. 2009).
Nath contends that the agency nevertheless erred in determining that his
now-vacated § 11378 conviction remains valid for removal purposes. We
disagree. “A conviction vacated for reasons ‘unrelated to the merits of the
underlying criminal proceedings’ may be used as a conviction in removal
proceedings whereas a conviction vacated because of a procedural or substantive
defect in the criminal proceedings may not.” Poblete Mendoza v. Holder, 606
F.3d 1137, 1141 (9th Cir. 2010) (quoting Nath I, 467 F.3d at 1189); see also In re
Adamiak, 23 I. & N. Dec. 878, 879 (BIA 2006). The agency’s finding that Nath’s
§ 11378 conviction was vacated for reasons unrelated to its merits is supported by
substantial evidence, including the Government’s explanation at the change-of-plea
hearing that it had agreed that Nath could re-plead to an offense “offer[ing] him
3
somewhat better deportation consequences” in return for his cooperation in the
prosecution of another defendant. The trial court’s refusal to enter Nath’s
proposed order declaring the § 11378 conviction “legally invalid” provides further
support for the agency’s finding that the vacatur had nothing to do with a defect in
the underlying criminal proceedings. Nath fails to point to any evidence in the
record compelling a contrary result. See 8 U.S.C. § 1252(b)(4)(B).
Given that Nath’s § 11378 conviction remains valid for removal purposes
despite its vacatur, the IJ did not err in pretermitting Nath’s applications for
cancellation of removal, asylum, and withholding of removal. Nath does not
dispute that a conviction for sale of methamphetamine in violation of § 11378
qualifies as an aggravated felony rendering him removable and ineligible for
cancellation of removal. See 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii),
1229b(a)(3); see also United States v. Vega-Ortiz, No. 14-50100, 2016 WL
2610177, at *2-4 (9th Cir. May 6, 2016); Rendon v. Mukasey, 520 F.3d 967, 975-
76 (9th Cir. 2008). He likewise conceded before the IJ that possession of a
controlled substance for sale constitutes a particularly serious crime, which would
render him ineligible for withholding and asylum. See 8 U.S.C.
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).
4
The BIA did not err in affirming the denial of Nath’s claim for deferral of
removal under the CAT. Nath failed to exhaust his argument that the agency
erred in subjecting him to the burden of proof associated with a motion to reopen
for purposes of his renewed CAT claim, and we therefore lack jurisdiction to
review that issue. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). On
the merits, the agency reasonably found that the evidence in the record of general
political unrest in Fiji and of targeted persecution of certain groups of which Nath
is not a member does not show that Nath himself would more likely than not be
tortured if removed to Fiji. See Oyeniran v. Holder, 672 F.3d 800, 803 (9th Cir.
2012); 8 C.F.R. § 1208.17(a). Nath fails to point to any evidence ignored by the
agency, or to any evidence that compels a contrary result.
Petition DENIED.
5