New 9th Circuit and BIA Immigration Cases

**Controlled substance; ag. fel., CHSC section 11366.5(drug manufacturing) ** 

The agency properly concluded that Amezcua Garcia is removable under 8 U.S.C. § 1227(a)(1)(A) because the record of conviction establishes that his 1995 conviction for violating CH&SC section 11366.5  related to a federally defined controlled substance and he was therefore inadmissable at the time of his 1999 entry.  However, the BIA erred in holding that Amezcua Garcia’s conviction was categorically an aggravated felony as defined in INA § 101(a)(43)(B), as not all the behavior prohibited by section 11366.5 would constitute a violation of 21 U.S.C. § 856(a)-(b). 

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/07-72516.pdf 

The BIA did not abuse its discretion in denying Garcia Cruz’s second motion to reopen as untimely because the motion was filed over two years after the final administrative order, and he did not show he was entitled to equitable tolling.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/07-72222.pdf

**Motion to remand**

Because the BIA lacked jurisdiction to consider Ahir’s newly submitted evidence on appeal,  the BIA did not abuse its
discretion in concluding that Ahir failed to rebut the strong presumption of effective service arising from the service of his hearing notice by certified mail.  In addition, the BIA was within its discretion in declining to remand because the newly submitted evidence was previously available and could have been provided in support of Ahir’s motion to reopen.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/07-70515.pdf

**BIA dismissal**

The BIA did not abuse its discretion in summarily dismissing petitioners’ appeal from an IJ’s order granting petitioners the voluntary departure relief they requested.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/06-75598.pdf

**Controlled substance**

Reyes-Espitia’s contention that a conviction under CH&SC § 11360(a) does not categorically constitute a controlled substance offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II) is foreclosed by Mielewczyk v. Holder, 575 F.3d 992, 997-98 & n.1 (9th Cir. 2009) (removability based on conviction under a law relating to a controlled substance does not turn on whether the law includes solicitation offenses.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/06-74590.pdf

**COR**

The agency did not abuse its discretion in denying petitioners’ motion to reopen for failure to establish prima facie eligibility for cancellation of removal where neither petitioner had a qualifying relative.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/06-74217.pdf

**MTR**

The BIA did not abuse its discretion in denying Zuniga-Gutierrez’s motion to reopen as untimely where he filed the motion more than 16 years after the BIA issued the final order of deportation,  and he failed to demonstrate that any exceptions applied to excuse the late filing.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/06-74066.pdf

**Motion to continue**

The agency did not abuse its discretion in denying Soto Galaviz’s motion to continue because his eligibility for relief was speculative and not immediately available.  Therefore, the agency did not violate Soto Galaviz’s due process rights by denying his motion to continue.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/06-74044.pdf

**Motion to reconsider**

The agency did not abuse its discretion in denying Medrano Wamea’s motion to reconsider because the motion was untimely and failed to specify error in the IJ’s removal order.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/06-73646.pdf

**Continuous presence, conviction**

Because petitioner’s conviction under CH&SC § 11377(a) occurred before he had acquired seven years of continuous residence, he is not statutorily eligible for cancellation of removal.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/12/30/06-73539.pdf