Papagayo v. Gonzales

MEMORANDUM ^***

Darlito Papagayo, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. Reviewing de novo, Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006), we deny the petition for review.

1. Papagayo’s contention that his firearms offense is not an aggravated felony is foreclosed by United States v. Castillo-Rivera, 244 F.3d 1020, 1023-24 (9th Cir. 2001). Papagayo contends that the aggravated felony definition may be construed one way in the sentencing context and another in the immigration context, citing Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir.2004). None of the concerns articulated in Cazarez-Gutierrez apply here, however. Cf. Lopez v. Gonzales, — U.S. -, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

2. Papagayo’s conviction for possession for sale of methamphetamine in violation of Cal. Health & Safety Code § 11378 precisely corresponds to a federal felony under the Controlled Substances Act, see 21 U.S.C. § 841(a)(1), and is therefore an aggravated felony for immigration purposes. See 8 U.S.C. § 1101(a)(43)(B); Cazarez-Gutierrez, 382 F.3d at 909-10. Papagayo’s contention that use of a firearm is required for an offense to constitute “a drug trafficking crime” under 8 U.S.C. § 1101(a)(43)(B) because 18 U.S.C. § 924(c)(2) neighbors provisions prohibiting drug trafficking that involves firearms is unpersuasive. Various subsections of a statutory section need not incorporate all the elements of the other subsections, so there is no basis or inference from which to conclude that the definition of “drug trafficking crime” provided in § 924(c)(2) incorporates the element of use of a firearm.

Papagayo’s motion to strike is granted in part. See 9th Cir. R. 36-3(c). The references in respondent’s brief to an unpublished Ninth Circuit disposition filed before January 1, 2007 are stricken, as is the briefs addendum.

PETITION FOR REVIEW DENIED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.