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No. 12-72262
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CRISANTO CARINO RAGASA, A037-485-221,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
ON PETITION FOR REVIEW FROM A FINAL ORDER OF THE BOARD OF IMMIGRATION APPEALS
BRIEF FOR RESPONDENT
Stuart F. Delery Acting Assistant Attorney General Ernesto H. Molina, Jr. Assistant Director S. Nicole Nardone Trial Attorney Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington D.C. 20044 (202) 305-7082 Attorneys for Respondent
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TABLE OF CONTENTS STATEMENT OF JURISDICTION......................................................................... 1 RESTATEMENT OF THE ISSUES ........................................................................ 3 STATEMENT OF THE CASE AND THE FACTS ................................................. 4 I. BACKGROUND AND PROCEDURAL HISTORY ..................................... 4 II. RAGASA’S MERITS HEARING .................................................................. 7 A. TESTIMONY OF RAGASA’S SON ...................................................... 7 B. TESTIMONY OF RAGASA’S WIFE ..................................................... 8 C. RAGASA’S TESTIMONY ................................................................... 10 III. IMMIGRATION JUDGE DECISION ......................................................... 11 IV. DECISION OF THE BOARD ...................................................................... 15 SUMMARY OF THE ARGUMENT ..................................................................... 21 ARGUMENT .......................................................................................................... 22 I. STANDARD OF REVIEW AND BURDEN OF PROOF ........................... 22 II. THE BOARD CORRECTLY REJECTED RAGASA’S CITIZENSHIP CLAIM ................................................................................ 23 A. The Court’s Authority And The Burden Of Proof ............................... 23 B. Ragasa Did Not Obtain Citizenship Under INA § 322 Because His Adoptive Parents Did Not File A Naturalization Application On His Behalf Before His Eighteenth Birthday ............................................................................. 24
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C. Ragasa Did Not Derive Automatic Citizenship Under Former INA § 301(a)(7) Because He Was Not “Born Of” Parents, One Of Whom Was A U.S. Citizen At The Time Of Ragasa’s Birth ................................................................. 26 D. Ragasa Did Not Derive Automatic Citizenship Under Former INA § 320(a) Because He Was Not Residing With His Adoptive Parents In The United States At The Time Of Their Naturalization ....................................................................................... 30 III. THE BOARD PROPERLY FOUND RAGASA REMOVABLE AS AN ALIEN CONVICTED OF A CONTROLLED SUBSTANCE OFFENSE ............................................................................ 33 A. Statutory Scheme ................................................................................ 33 B. Ragasa Failed To Establish A Realistic Probability That His Hawaii State Conviction Would Apply To Controlled Substances Not Found IN The CSA .................................. 35 IV. RAGASA’S CHALLENGE TO THE AGENCY’S DISCRETIONARY DENIAL OF CANCELLATION OF REMOVAL DOES NOT RAISE A COLORABLE DUE PROCESS CLAIM FOR THIS COURT’S CONSIDERATION .................................................................. 37 CONCLUSION ....................................................................................................... 40 CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
CASES
Alberto Gonzalez v. INS, 215 F.3d 906 (9th Cir. 2000) ....................................................................... 3, 4
Andriasian v. INS,
180 F.3d 1033 (9th Cir. 1999) ....................................................................... 23 Bagot v. Ashcroft,
398 F.3d 252 (3d Cir. 2005) ..................................................................... 24, 25 Berenyi v. INS,
385 U.S. 630 (1967) ....................................................................................... 23 Board of Regents v. Roth,
408 U.S. 564 (1972) ................................................................................... 2, 38 de Jesus Melendez v. Gonzales,
503 F.3d 1019 (9th Cir. 2007) ......................................................................... 2 Franco-Rosendo v. Gonzales,
454 F.3d 965 (9th Cir.2006) .......................................................................... 39 Gameros-Hernandez v. INS,
883 F.2d 839 (9th Cir.1989) .......................................................................... 23 Ghaly v. INS,
58 F.3d 1425 (9th Cir. 1995) ......................................................................... 22 Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007) ........................................................................... 19, 36, 37 Hughes v. Ashcroft,
255 F.3d 752 (9th Cir. 2001) ......................................................................... 22 Marquez-Marquez v. Gonzales,
455 F.3d 548 (5th Cir. 2006) ......................................................................... 29
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Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 2009) ............................................................. 24, 28, 29
Martinez-Rosas v. Gonzales,
424 F.3d 926 (9th Cir. 2005) ......................................................................... 38 Mielewczyk v. Holder,
575 F.3d 992 (9th Cir. 2009) ......................................................................... 23 Miller v. Albright,
523 U.S. 420 (1998) ................................................................................. 24, 25 Minasyan v. Gonzales,
401 F.3d 1069 (9th Cir. 2005) ....................................................................... 24 Morgan v. Att'y General,
432 F.3d 226 ............................................................................................ 24, 25 Munoz v. Ashcroft,
339 F.3d 950 (9th Cir. 2003) ......................................................................... 38 Ruiz-Vidal v. Gonzales,
473 F.3d 1072 (9th Cir. 2007) ....................................................................... 34 Russello v. United States,
464 U.S. 16 (1983) ............................................................................. 32, 33, 36 Sandoval-Luna v. Mukasey,
526 F.3d 1243 (9th Cir. 2008) ....................................................................... 38 Santos-Lemus v. Mukasey,
542 F.3d 738 (9th Cir. 2008) ......................................................................... 22 Scales v. INS,
232 F.3d 1159 (9th Cir. 2000) ................................................................. 23, 24 Solis-Espinoza v. Gonzales,
401 F.3d 1090 (9th Cir. 2005) ........................................................... 16, 27, 28
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ADMINISTRATIVE DECISIONS In re O-J-O,
21 I. & N. Dec. 381 (BIA 1996) .................................................................... 39 Matter of C-V-T,
22 I. & N. Dec. 7 (BIA 1998) ................................................................. 20, 39 Matter of Hernandez-Ponce,
19 I. & N. Dec. 613 (BIA 1988) .................................................................... 34 Matter of Marin,
16 I. & N. Dec. 581 (BIA 1978) .............................................................. 20, 39 Matter of Mena,
17 I. & N. Dec. 38 (BIA 1979) ...................................................................... 34 Matter of Paulus,
11 I. & N. Dec. 274 (BIA 1965) .................................................................... 34 Matter of Rodriguez-Tejedor,
23 I. &N. Dec. 153 (BIA 2001) ..................................................................... 17 Matter of Sotelo, 23 I. & N. Dec. 201 (BIA 2001) .................................................................... 20
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STATUTES
Immigration and Nationality Act of 1952, as amended:
Section 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) ............................................................................ 13 Section 101(c)(1), 8 U.S.C. § 1101(c)(1) .............................................................................. 17, 32 Section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) ........................................................................... 5 Section 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i) ................................................................ 2, passim Section 237(A)(iii), 8 U.S.C. § 1227(A)(iii) .................................................................................. 15 Section 242(a), 8 U.S.C. § 1252(a) ........................................................................................... 2 Section 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ........................................................................... 2, 37 Section 240(A), 8 U.S.C. § 1229a(A)....................................................................................... 19 Section 242(b)(1), 8 U.S.C. § 1252(b)(1) ...................................................................................... 2 Section 242(b)(2), 8 U.S.C. § 1252(b)(2) ...................................................................................... 2 Section 242(b)(5), 8 U.S.C. § 1252(b)(5) ...................................................................................... 2
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Section 242(b)(5)(A), 8 U.S.C. § 1252(b)(5)(A) ........................................................................... 3, 23 Section 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B) ................................................................................. 3 Section 242(D), 8 U.S.C. § 1252(D) .................................................................................... 2, 37 Section 301(a)(7), 8 U.S.C. § 1401(a)(7) .......................................................................... 3, passim Section 301(g), 8 U.S.C. § 1401(g) ............................................................................ 16, passim Section 309, 8 U.S.C. § 1409 .............................................................................................. 28 Section 309(a)(1), 8 U.S.C. § 1409(a)(1) ..................................................................................... 28 Section 320(a), 8 U.S.C. § 1430(a) .............................................................................. 3, passim Section 320(b), 8 U.S.C. § 1430(b) ................................................................................... 17, 32 Section 321(a), 8 U.S.C. § 1431(a) ......................................................................................... 31 Section 322, 8 U.S.C. § 1433 .................................................................................. 18, 24, 25
OTHER STATUE 21 U.S.C. 802 ..................................................................................................... 33
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REGULATIONS 8 C.F.R. § 1003.1(b)(3) ........................................................................................ 1 8 C.F.R. § 1308.13(c)(14) .................................................................................. 36 8 C.F.R. § 1240.15 ............................................................................................... 1 21 C.F.R. § 1308.13 ........................................................................................... 36
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No. 12-72262
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CRISANTO CARINO RAGASA, A037-485-221,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
BRIEF FOR RESPONDENT
STATEMENT OF JURISDICTION
Petitioner Crisanto Carino Ragasa (“Petitioner” or “Ragasa”) seeks
review of a decision issued by the Board of Immigration Appeals (“Board” or
“BIA”) on June 19, 2012. See Certified Administrative Record (“A.R.”) at 3-7.
The Board’s jurisdiction arose under 8 C.F.R. § 1003.1(b)(3) and 8 C.F.R.
§ 1240.15 (2013), which grant the Board appellate jurisdiction over decisions of
immigration judges in removal proceedings.
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This Court has jurisdiction to review a final order of the Board pursuant
to Immigration and Nationality Act (“INA”) § 242(a), 8 U.S.C. § 1252(a)
(2012), which confers exclusive jurisdiction on the Courts of Appeals to review
final orders of removal. See 8 U.S.C. § 1252(a).
The petition for review is timely because the Board’s final order of
removal was issued on June 19, 2012, and the petition for review was filed on
July 16, 2012. See 8 U.S.C. § 1252(b)(1) (2012) (a “petition for review must be
filed not later than 30 days after the date of the final order of removal.”). Venue
is proper in this Court because removal proceedings were completed in
Honolulu, Hawaii, which is within this Judicial Circuit. See 8 U.S.C.
§ 1252(b)(2) (2006); A.R. 70.
In the case of an alien ordered removed under 8 U.S.C. § 1227
(a)(2)(B)(i), after a conviction of a controlled substance offense, however, the
Court is limited to reviewing constitutional issues and questions of law. See
8 U.S.C. § 1252(a)(2)(C), (D); de Jesus Melendez v. Gonzales, 503 F.3d 1019,
1023 (9th Cir. 2007). The Court has jurisdiction over a nationality claim under
8 U.S.C. § 1252(b)(5). “If the Court finds, from the pleadings and the
affidavits, that no genuine issue of material fact about the petitioner’s
nationality is presented, the Court shall decide the nationality claim.”
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8 U.S.C. § 1252(b)(5)(A).1 The Court has “jurisdiction to determine whether
[it] has jurisdiction over the merits of the petition for review.” Alberto
Gonzalez v. INS, 215 F.3d 906, 908 (9th Cir. 2000).
RESTATEMENT OF THE ISSUES
1. Whether the Board properly rejected Ragasa’s citizenship claim
where Ragasa, who was born in the Philippines, did not obtain citizenship under
former INA § 322 because his adoptive, naturalized parents never filed a
naturalization application on his behalf prior to his eighteenth birthday;
where Ragasa did not derive automatic citizenship under former INA
§ 301(a)(7) because he was not “born of” parents, one of whom was a U.S.
citizen at the time of his birth; and where Ragasa did not derive citizenship
under former INA § 320(a) because he was not residing with his adoptive
parents in the U.S. at the time of their naturalization.
2. Whether the Board properly found Ragasa removable under
INA § 237(a)(2)(B)(i), as alien convicted of a law relating to a controlled
substance, where Ragasa did not establish a realistic possibility that his Hawaii
state crime fell outside the federal definition of a controlled substance where,
contrary to Ragasa’s assertion, the federal Controlled Substances Act (“CSA”)
1 If the Court finds a genuine issue of material fact about the petitioner’s nationality is presented, the Court shall transfer the proceedings to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim. 8 U.S.C. § 1252(b)(5)(B).
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included the substance “Tiletamine/Zolazepam, (Telazol, 2-(ethylamino)-2-
(thienyl)-cyclohexanone, flupyrazapon) or any salts thereof” and where Ragasa
cited no cases in which Hawaii law criminalized conduct involving a substance
not covered by the CSA.
3. Whether the agency afforded Ragasa due process in considering
his history of drug use in evaluating his application for cancellation of removal
where Ragasa had no liberty interest in the discretionary relief of cancellation
of removal; where the agency was obligated to consider both favorable and
unfavorable factors in assessing Ragasa’s eligibility for relief; where Ragasa
was given a full and fair opportunity to present his case; and where Ragasa
never alleged that his testimony regarding his drug use was not given freely or
was untrue.
STATEMENT OF THE CASE AND THE FACTS
I. BACKGROUND AND PROCEDURAL HISTORY
Petitioner is a native and citizen of the Philippines. A.R. 651. He
entered the United States at Honolulu, Hawaii on or about November 6, 1980,
as an IR-4 immigrant. Id. On July 28, 2008, Petitioner was convicted in the
State of Hawaii, Circuit Court of the Third Circuit, for the offense of Attempted
Promoting a Dangerous Drug in the 1st Degree, in violation of Hawaii Revised
Statutes (“HRS”) 705-500(1)(b) & 712-1241(b)(ii). Id., A.R. 474.
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On February 17, 2011, the Department of Homeland Security (“DHS”)
filed a Notice to Appear against Ragasa, charging him with removability under
section 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1227(a)(2)(B)(i), as alien who, at any time after admission, had been
convicted of a violation of a law or regulation of a State relating to a controlled
substance and under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as
an alien convicted of an aggravated felony as defined in INA § 101(a)(43)(B).
A.R. 651-53. The factual allegations of the NTA alleged that: (1) Petitioner
was not a citizen or national of the United States; (2) Petitioner was a native and
citizen of the Philippines; (3) Petitioner was admitted to the United States at
Honolulu, Hawaii, on or about November 6, 1980 as a IR-4 immigrant; and
(4) Petitioner was, on July 28, 2008, convicted in the State of Hawaii, Circuit
Court of the Third Circuit, for the offense of Attempted Promoting a Dangerous
Drug in the 1st Degree, to wit: Methamphetamine, in violation of HRS 705-
500(1)(b) & 712-1241(1)(b)(ii). A.R. 651.
On September 22, 2011, Ragasa appeared, with counsel, before an
immigration judge. A.R. 94. Ragasa admitted the third allegation of his NTA,
but denied the first, second and fourth allegations. A.R. 94-95. He denied the
first and second allegations on the grounds that he was a United States (“U.S.”)
citizen, as he derived citizenship through his adopted parents. A.R. 95-96. He
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denied the fourth allegation on the basis that he was not convicted of an offense
involving methamphetamine, but was convicted of a violation of attempted
promoting of a dangerous drug in the first degree under H.R.S. 705-500(1) (b)
and 712-1241(i)(b), which did not include methamphetamine. A.R. 131. The
immigration judge rescheduled Ragasa’s hearing so his counsel could produce
documentation of his citizenship. A.R. 107-08.
On September 27, 2011, upon consideration of Ragasa’s evidence, the
immigration judge sustained the first and second allegations of the NTA. A.R.
130-31. On November 17, 2011, the immigration sustained the fourth
allegation. A.R. 183. The immigration judge did not sustain Ragasa’s removal
under INA § 237(a)(2)(A)(iii), finding that DHS failed to establish by clear and
convincing evidence that Petitioner was removable on this ground. A.R. 74,
183. The immigration judge found Ragasa removable under INA § 237
(a)(2)(B)(i), as an alien convicted of a law relating to a controlled substance.
A.R. 74. During the November 17, 2011 hearing, Petitioner indicated that he
would be seeking relief from removal in the form of cancellation of removal
and would seek a waiver of relief for his criminal charges. A.R. 184.
Following a merits hearing on January 31, 2012, the immigration judge
denied Ragasa’s application for cancellation of removal. A.R. 70-81. The
immigration judge also denied Petitioner voluntary departure and ordered him
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removed from the United States. A.R. 81. On March 1, 2012, Petitioner filed
an appeal with the Board. A.R. 8-64. On July 19, 2012, the Board issued an
order affirming the immigration judge’s decision and dismissing the appeal.
A.R. 3-7. The instant petition for review followed.
II. RAGASA’S MERITS HEARING
On January 31, 2012, Petitioner and two witnesses appeared for a merits
hearing before an immigration judge and provided the following testimony.
A. TESTIMONY OF RAGASA’S SON
Petitioner’s son, Byron Ragasa (“Byron”), testified that he was born in
Hilo, Hawaii, in 1989. A.R. 215-16. His mother, Remy Ramonez Ragasa, died
when he was six years old. A.R. 216. Byron said Ragasa was involved in his
life and was a hard-working and dedicated father. A.R. 216-17. Ragasa
attended Byron’s drop-out prevention programs and ensured his graduation
from high school. A.R. 216-17. At the time of the hearing, Byron had a job as
a cashier at Walmart. A.R 217. Byron said his father’s deportation would
greatly affect him because he lost his mother and doesn’t have other immediate
relatives on the big island. A.R. 217. Byron has an aunt in Washington and an
uncle that lives on Kauai. Id. His main concern with his father’s deportation
was his “concern for his younger siblings, who would “[have to] grow[] up
with[out] [a] father figure.” A.R. 218.
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On cross-examination, Byron said that his father’s illegal behavior has
caused the family problems because, due to his incarceration, his younger
siblings “[were] missing him.” A.R. 222. Byron believed that his father should
be allowed to stay in the United States, despite his conviction for selling drugs.
A.R. 220-21. Byron no longer lives with his father; he moved out when he was
eighteen. A.R. 224. Byron never visited his father in jail because he could not
afford a plane ticket to see him. A.R. 225. Byron explained that his father was
incarcerated in Oahu and in Arizona. A.R. 225. He last saw his father on July
22, 2008. A.R. 225.
B. TESTIMONY OF RAGASA’S WIFE
Petitioner’s wife, Delia Acosta Ragasa (“Delia”), provided the following
testimony. Delia is a U.S. citizen and resides in Hilo, Hawaii. A.R. 229. She
married Ragasa in 1998. A.R. 229. Delia works as a nurse at the Hilo Medical
Center. A.R. 229. She and Ragasa have three U.S. citizen children: a twelve-
year-old girl, and twin five-year-old boys. A.R. 229-30. Delia’s parents, who
are in their seventies, also live with them. A.R. 229-230. Delia said all three of
her children suffer from chronic asthma and frequently need nebulizer
treatments. A.R. 230. One of the boys had a mass in his leg which caused him
pain. A.R. 230. Both boys had been assessed with speech problems. A.R. 230.
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Delia’s father suffered liver, prostate and respiratory problems which required
frequent medical visits. A.R. 230.
Delia believed Ragasa became involved with drugs because he was
depressed about his first wife’s death, the death of his parents, and the injury to
his wrist. A.R. 232. Delia said that, as a result of his wrist injury in 2006,
Ragasa was unable to maintain his job as a mechanic. A.R. 232-33. Delia
believed Ragasa suffered from depression at that time, because he was quiet,
distant and “feeling hopeless.” A.R. 233.
Delia witnessed Ragasa’s criminal proceedings and said he was very
cooperative with the authorities. A.R. 234. Delia believed Ragasa’s conviction
changed him; he started spending more time with their kids and going to
church. A.R. 235. Delia was in constant contact with her husband during his
incarceration. A.R. 235. She said it would be very hard on her if her husband
was deported because she would have to take care of the children physically
and financially by herself. A.R. 236. Delia said she would not go to the
Philippines with her husband if he was deported. A.R. 237. The only family
they have in the Philippines is Ragasa’s biological mother. A.R. 237.
On cross-examination, Delia conceded that her husband was incarcerated
in July 2008, so she had been raising her children alone for three-and-one-half
years. A.R. 238. Delia never knew that Ragasa was involved with drugs until
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he was arrested. A.R. 240. Delia believed her husband should be allowed to
remain in the United States because his conviction was his first offense and he
was very remorseful. A.R. 244-45. During Ragasa’s incarceration, Delia
supported her household with her salary and her parents’ social security
income. A.R.246-47. Ragasa and Delia own their home; they have three cars.
A.R. 247. Delia did not believe she could easily find a job in the Philippines, as
they had no demand for nurses. A.R. 248.
C. RAGASA’S TESTIMONY
Ragasa provided the following testimony during his merits hearing. He
was born in the Philippines in 1966 and came to the United States in 1980 at the
age of fourteen. A.R. 257. Ragasa was adopted by his uncle and aunt,
Alejandro Ragasa and Cleofe Ragasa, who were residing in Hawaii. A.R. 257.
Ragasa attended high school in Hawaii and later studied mechanics at a local
community college. Id. Ragasa worked as a mechanic for several years; he
then worked in a hotel and at Goodyear Tire. A.R. 258-59. He had a son with
his first wife; his first wife died in October 1995. A.R. 259. He remarried in
July 1997. A.R. 259. Ragasa started using drugs when his first wife died, as
his “life was all hopeless.” A.R. 260. If Ragasa was granted cancellation of
removal, he would change his life; he would look for work and try to help his
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wife pay the bills. A.R. 261. He would also never use drugs again if he was
granted relief. A.R. 261-62.
On cross-examination, Ragasa conceded that he used drugs for twelve
years, from 1995 until his conviction in 2007. A.R. 263. He mainly used
marijuana, cocaine and ice (also known as methamphetamine). A.R. 263.
Ragasa said he used drugs during his second marriage but not “continuously”
during this period. A.R. 264. Ragasa conceded that he hid his drug use from
his wife and family because he knew it was “bad using drugs.” A.R. 264. He
did not sell drugs for money; he sold to support his drug habit. A.R. 267.
Ragasa conceded that he was using methamphetamine at the time he was
arrested. A.R. 267-68. He said he was caught the first time he tried selling
drugs (which resulted in his conviction) and never sold again. A.R. 269.
Ragasa believed he should be granted relief for the sake of his family and
because his behavior was “a mistake.” A.R. 270. He said he never would have
“done these things” had he known he could be deported for them. A.R. 270.
III. IMMIGRATION JUDGE DECISION
On January 31, 2012, following a merits hearing, the immigration judge
issued an order denying Ragasa’s application for cancellation of removal and
for voluntary departure. A.R. 70-81.
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The immigration judge noted that Ragasa alleged that he was a United
States citizen. A.R. 72. The immigration judge also noted that DHS denied
Ragasa’s application for citizenship, submitted February 15, 2011, pursuant
INA § 341, alleging citizenship through his adoptive parents. Id. The
immigration judge observed that the record showed that Petitioner immigrated
to the United States on November 6, 1980, as an IR-4 immigrant, as a child to
be adopted by United States citizens in the United States. Id. The immigration
judge noted that Petitioner was adopted on March 2, 1981, by parents who were
naturalized United States citizens prior to his adoption. A.R. 72.
The immigration judge noted that, at the time of Petitioner’s adoption,
INA § 320 required that an application for a certificate for citizenship must be
filed prior to Petitioner’s eighteenth birthday. A.R. 73. The immigration judge
observed that the record did not contain any evidence that Petitioner’s adoptive
parents ever submitted this application on his behalf. A.R. 72-73. The
immigration judge noted that, although Petitioner would have automatically
become a citizen under the Child Citizenship Act of 2000 if he was under
eighteen years old at time it became effective on February 27, 2001, Petitioner
was thirty-four years old at that time. A.R. 73. Therefore, that Act did not
apply to him. A.R. 73. The immigration judge concluded that Petitioner had
not presented sufficient efficient to support of his claim of U.S. citizenship.
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A.R. 73. Thus, the immigration judge found that Petitioner was not a citizen or
national of the United States, and that Petitioner was a native and citizen of the
Philippines. A.R. 73.
After considering the arguments of DHS and the Petitioner, the
immigration judge also sustained the charge of removal under
INA § 237(a)(2)(B)(i), alleging that Petitioner had been convicted of a violation
of a law relating to a controlled substance. A.R. 74. The immigration judge
found that DHS failed to establish by clear and convincing evidence that
Petitioner was removable under INA § 237(a)(2)(A)(iii), as an alien convicted
of an aggravated felony as defined in INA § 101(a)(43)(B). A.R. 74.
With regard to Ragasa’s application for cancellation of removal as a legal
permanent resident, the immigration judge found that Petitioner had been
admitted for permanent residence for not less than five years and had resided in
the United States continuously for seven years after having being admitted in
any status. A.R. 76. The immigration judge also found that Petitioner had not
been convicted of an aggravated felony and was statutorily eligible to apply for
cancellation of removal. A.R. 75.
The immigration judge next considered Petitioner’s application for
cancellation of removal as a matter of discretion. A.R. 76. The immigration
judge noted that Petitioner had four U.S. citizen children, but had few family
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members in the Philippines. A.R. 76. The immigration judge observed that
Petitioner came to the U.S. at fourteen and has been here since 1980. A.R. 77.
He noted that Petitioner has a home in the U.S. and three vehicles; and that he
and his wife have a checking account, savings account and Petitioner’s wife has
retirement account through her employer. A.R. 77. The immigration judge
discussed the fact that Petitioner had been detained for the past three years and
had little contact with his children. A.R. 77. The immigration judge noted that
Petitioner’s family testified and demonstrated that they have a strong familial
relationship with Petitioner. Id. The immigration judge also considered
Petitioner’s consistent work history and that his instant conviction was his only
interaction with law enforcement in the U.S. A.R. 77.
The immigration judge also considered “the nature and circumstances of
the grounds of removal.” A.R. 78. He noted that Petitioner was charged with a
crime under HRS § 712-1241, which “specifically exclude[d] from its definition
the use . . . of methamphetamine.” A.R. 78. The immigration judge noted
Petitioner’s testimony that he used methamphetamine, cocaine and marijuana
“off and on” since 1995, and that his drug distribution grew out of his need to
support his drug habit. A.R. 78. The immigration judge observed that it was
unclear “how many times or how often [Petitioner] utilized drugs,” but
commented that it was “clear that [Petitioner] had utilized marijuana, cocaine,
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and methamphetamine,” noting that methamphetamine was “a very serious drug
with highly-addictive qualities.” A.R. 79. The immigration judge commented
that “the issue or matter of drug use and drug distribution [was] a very serious
matter in the United States.” A.R. 79. He also noted the testimony of
Petitioner’s wife that, although their family is very close, Petitioner kept his
drug use hidden from them for years. A.R. 78-79. After evaluating each of
these factors, the immigration judge concluded “that it could not find . . . that
the grant of relief would be in the best interest of [the] country,” which he noted
“is a requirement for the grant of cancellation of removal for certain legal
permanent residents.” A.R. 80. Thus, the immigration judge concluded that he
would not grant cancellation of removal as a matter of discretion. A.R. 81. The
immigration judge also denied Petitioner voluntary departure as a matter of
discretion. A.R. 81.
IV. DECISION OF THE BOARD
On June 19, 2012, the Board issued a decision dismissing Ragasa’s
appeal. A.R. 3. The Board noted Ragasa’s challenges to the immigration
judge’s determination that he had not established U.S. citizenship, and his
argument that he was not removable under INA § 237(a)(2)(B)(i) and (A)(iii)
because the Hawaii controlled substances statute under which he was convicted
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included controlled substances which were not criminalized under the federal
Controlled Substances Act (“CSA”). A.R. 3.
The Board observed that Ragasa did not challenge the finding that his
adoptive parents failed to submit an application for a certificate of citizenship
on his behalf. A.R. 4. Rather, Petitioner argued that “he acquired citizenship
under former [INA §] 301(a)(7), now designated [INA §] 301(g).” A.R. 4. The
Board noted Petitioner’s argument that his case was analogous to Solis-
Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), and Scales v. INS, 232
F.3d 1159 (9th Cir. 2000), in which the Ninth Circuit concluded that pursuant to
INA § 301(g) a child can acquire citizenship at birth through a person who is
neither a biological nor an adoptive parent. A.R. 4. The Board determined,
however, that these cases were distinguishable from Ragasa’s case, noting that
“the individuals seeking citizenship in Scales and Solis-Espinoza were
biological children of the spouse of the stepparent through whom citizenship
was acquired.” A.R. 4. “Here, in contrast,” the Board concluded ,“[Petitioner]
[was] the adopted child of naturalized citizens.” A.R. 5. The Board observed
that section 301(g) “expressly define[d] nationals and citizens at birth as
‘person[s] born . . . of parents one of whom is an alien, and the other a citizen of
the United States . . .” Id. The Board concluded that “[n]othing in the language
of [INA 301(g)] indicate[d] that the provision [applied] to an adopted child.”
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A.R. 5, citing Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 155 (BIA 2001) .
Thus, the Board rejected Petitioner’s argument that he acquired citizenship
under INA § 301(g). A.R.5.
The Board also rejected Petitioner’s argument that he was a citizen by
operation of former INA § 320, entitled “Children born outside United States of
one alien and one citizen parent,” because Ragasa was not residing in the
United States, as required by the statute, at the time of his parents’
naturalization. A.R. 5. The Board also rejected Petitioner’s argument that he
was a “child” as contemplated under former 320(a). A.R. 5. The Board
observed that, although a “child” as defined under INA § 101(c)(1) during the
relevant time period “may [have] described [Petitioner],” “Congress crafted
distinct additional requirements for conferring automatic citizenship on children
like [Petitioner] who were adopted.” A.R. 6. The Board explained that “[i]f
Congress had intended [Petitioner] to derive citizenship under [INA §] 320(a),
[INA §] 320(b) would be superfluous.” A.R. 6. Further, the Board found “no
basis for interpreting the statute as exempting children adopted before their
sixteenth birthday or adopted outside the United States from satisfying [INA
§ 320(b)] in order to obtain citizenship.” A.R. 6. Thus, the Board determined
that Petitioner did not derive automatic citizenship under former INA § 320. Id.
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The Board concluded that “the statutory scheme in place prior to
[Petitioner’s] eighteenth birthday provided that adoptive parents of children
who did not acquire citizenship automatically under [INA § 320] may apply for
a certificate of citizenship.” A.R. 6, citing INA § 322. The Board concluded
that, because Petitioner’s adoptive parents did not apply for a certificate of
citizenship on his behalf before he reached the age of eighteen, Petitioner did
not establish U.S. citizenship. A.R. 6.
The Board also found no merit to Petitioner’s argument that he was not
convicted of a law relating to a controlled substance and, thus, was not
removable under INA § 237(a)(2)(B)(i). The Board outlined Petitioner’s
argument that because the conviction documents did not identify the controlled
substance involved in his offense, and the list of substances criminalized under
the Hawaii drug statutes included “Tiletamine/Zolazepam, (Telazol,
2-(ethylamino)-2-(thienyl)-cyclohexanone, flupyrazapon) or any salts thereof,”
a substance not listed in the federal CSA, he did not sustain a conviction related
to a controlled substance. A.R. 4. The Board rejected this argument for two
reasons. First, it found that “Tiletamine and zolazepam or any salt thereof,”
further identified with trade names of, among others, “Telazol, 2-(ethylamino)-
2-(thienyl)-cyclohexanone and flupyrazapon,” was included in Schedule III of
the CSA. A.R. 6. Second, the Board observed that even if the HRS and CSA
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controlled substance lists were not coextensive, the Supreme Court, in Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), “instructed that to ‘find that a
state statute creates a crime outside the generic definition of a listed crime in a
federal statute requires more than the application of legal imagination to a
state’s statute’s language. It requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime.’” A.R. 6. The Board found that “[w]hile
[Petitioner’s] proposition of a hypothetical crime involving a controlled
substance proscribed under the Hawaii drug statute but not included in the CSA
is within the realm of possibility, he has not demonstrated a realistic probability
that prosecution for such an offense [was] likely.” A.R. 6. The Board found
that Petitioner could have shown such a realistic probability if he established
“that the statute was so applied in his own case” or in other cases, but he
“presented no such evidence.” A.R. 6. The Board concluded that it was “not
inclined to find on the basis of this purely speculative hypothesis that
[Petitioner] was not convicted of a violation of a state law relating to a
controlled substance.” A.R. 6.
The Board also found no merit to Petitioner’s argument that the
immigration judge erred in considering his testimony concerning his prior drug
use in denying his application for cancellation of removal under INA § 240(A)
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in the exercise of discretion. A.R. 7. Petitioner argued it was unfair for the
agency to consider this evidence because he was never convicted of his prior
drug use and he would not have mentioned it had he known it would negatively
affect his application for cancellation of removal. A.R. 7. The Board observed,
however, that Petitioner bore the burden of establishing his eligibility for
cancellation of removal as a matter of discretion. A.R. 7, citing Matter of
Sotelo, 23 I. & N. Dec. 201 (BIA 2001); Matter of C-V-T-, 22 I. & N. Dec. 7
(BIA 1998). The Board found that according to the framework set forth in
Matter of Marin, 16 I. & N. Dec. 581, 582-83 (BIA 1978), “in exercising
discretion an immigration judge must review the record in its entirety and
balance the social and humane considerations presented in an alien’s favor
against the adverse factors evidencing his undesirability as a permanent
resident.” A.R. 7, citing Matter of C-V-T-, 22 I. & N. Dec. at 11. The Board
observed that Petitioner conceded that he testified under oath and he did not
dispute that his testimony about using drugs was truthful. A.R. 7. Thus, the
Board concluded that “the immigration judge properly considered his
statements of record” and “the fact that [Petitioner] now regrets being
forthcoming does not mean that the immigration judge abused his discretion in
weighing the illegal drug use and related activity as a factor in the discretionary
determination.” A.R. 7.
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SUMMARY OF THE ARGUMENT
The Board properly rejected Ragasa’s citizenship claim because, under
the statute in effect at the time of Ragasa’s adoption, Ragasa’s parents were
required to file a naturalization application on Ragasa’s behalf prior to his
eighteenth birthday. As Ragasa conceded that his adoptive parents never filed
this application on his behalf, the Board properly found he did not obtain
citizenship under former INA § 322. The Board also properly found that
Ragasa did not derive automatic citizenship under former INA § 301(a)(7),
because he was not “born of” parents, one of whom was a U.S. citizen at the
time of his birth. The Board also correctly found that Ragasa did not derive
automatic citizenship under former INA 320(a), because he was not residing
with his adoptive parents in the United States at the time of their naturalization.
The Board properly found Ragasa removable under INA
§ 237(a)(2)(B)(i), as an alien convicted of a law relating to a controlled
substance. Ragasa did not establish a realistic possibility that his Hawaii state
crime fell outside the federal definition of a controlled substance. Contrary to
Ragasa’s allegation, the federal CSA included the substance
“Tiletamine/Zolazepam, (Telazol, 2-(ethylamino)-2-(thienyl)-cyclohexanone,
flupyrazapon) or any salts thereof.” Further, Ragasa cited no cases in which
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Hawaii law criminalized conduct involving a substance not covered by the
CSA.
The agency afforded Ragasa due process in considering his history of
drug use in evaluating his application for cancellation of removal. Petitioner
had no liberty interest in the discretionary relief of cancellation of removal.
Further, the agency is permitted to weigh both the favorable and unfavorable
factors in assessing Ragasa’s eligibility for relief. The record shows that
Ragasa was given a full and fair opportunity to present his case, and Ragasa
never alleged that his testimony regarding his history of drug use was not given
freely or was untrue.
ARGUMENT I. STANDARD OF REVIEW AND BURDEN OF PROOF Where, as here, the Board conducts a de novo review of the record, the
Court’s review is limited to the decision of the Board, except to the extent that
the immigration judge’s decision is expressly adopted by the Board. See Ghaly
v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). The Board’s legal interpretations
of the INA are reviewed de novo, but with deference to the agency’s
construction. Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008)
The Court reviews de novo the legal questions involving a claim to citizenship.
See Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001). Whether a
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conviction under state law is a controlled substance offense is a legal question
subject to de novo review. Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir.
2009). Factual determinations of the Board are reviewed under the substantial
evidence standard, and are upheld unless the evidence compels a contrary
conclusion. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir. 1999).
The government must prove by “clear, unequivocal, and convincing
evidence that the facts alleged as grounds of [removability] are true.” Gameros-
Hernandez v. INS, 883 F.2d 839, 841 (9th Cir.1989). “Evidence of foreign
birth. . . gives rise to a rebuttable presumption of alienage, and the burden then
shifts to the petitioner to prove citizenship.” Scales v. INS, 232 F.3d at 1163.
Because citizenship confers “privileges and benefits,” that “once granted,
cannot lightly be taken away,” any “doubts [about Petitioner’s citizenship]
should be resolved in favor of the United States and against” the petitioner.
Berenyi v. INS, 385 U.S. 630, 637 (1967).
II. THE BOARD CORRECTLY REJECTED RAGASA’S CITIZENSHIP CLAIM A. The Court’s Authority And The Burden Of Proof The Court should find that the agency correctly rejected Ragasa’s
U.S. citizenship claim, as the record shows that there exists no genuine issue of
material fact about Petitioner’s nationality. See 8 U.S.C. § 1252(b)(5)(A).
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Because Ragasa was born in the Philippines, he bore the burden of
establishing his claim to U.S. citizenship. A.R. 651. “There are ‘two sources of
citizenship, and two only: birth and naturalization.’” Martinez-Madera v.
Holder, 559 F.3d 937, 940 (9th Cir. 2009), citing Miller v. Albright, 523 U.S.
420, 423 (1998). If a person is not born in the United States, he or she can
acquire citizenship at birth only as provided by Congress. Scales v. INS, 232
F.3d at 1164, citing Miller v. Albright, 523 U.S. 420, 423 (1998). The law
applicable is that in effect at the time the critical events giving rise to the claim
for derivative citizenship occurred. Morgan v. Att’y General, 432 F.3d 226,
230, citing Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). The
relevant times are the date of the child’s birth, the time of the child’s entry into
the United States, and the date of the parent’s naturalization. See Bagot v.
Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005) (listing “relevant times” for
derivative citizenship claims).
B. Ragasa Did Not Obtain Citizenship Under INA § 322 Because His Adoptive Parents Did Not File A Naturalization Application On His Behalf Before His Eighteenth Birthday Under the version of the INA in effect when Ragasa was brought to the
United States in 1980, and adopted in 1981, Ragasa’s adoptive parents were
required to apply for United States citizenship on his behalf while he was a
minor. See INA § 322, 8 U.S.C. § 1433 (1986).
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In 1980 and 1981, INA § 322 provided:
Children born outside of the United States: (a) Naturalization on petition of citizen parents; requirements A child born outside the United States, one or both of whose parents is at the time of petitioning for the naturalization of the child, a citizen of the United States, either by birth or naturalization, may be naturalized if under the age of eighteen years and not otherwise disqualified from becoming a citizen . . . , and if residing permanently in the United States, with the citizen parent, pursuant to a lawful admission of permanent residence, on the petition of such citizen parent, upon compliance with all the provisions of this subchapter, except that no particular period of residence or physical presence in the United States shall be required . . . . (b) Adopted children Subsection (a) of this section shall apply to a child adopted while under the age of sixteen years who is residing in the United States, in the custody of the adoptive parent or parents, pursuant to a lawful admission for permanent residence.
INA § 322, 8 U.S.C. § 1433 (1980).
The record shows, and Petitioner does not dispute, that his parents did not
file a naturalization application on his behalf prior to his eighteenth birthday.
See A.R. 72-73 and Pet’s Br. at 12-13. Thus, the agency properly concluded
that Ragasa did not became a United States citizen pursuant to INA § 322.
A.R. 6.
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C. Ragasa Did Not Derive Automatic Citizenship Under Former INA § 301(a)(7) Because He Was Not “Born Of” Parents, One Of Whom Was A U.S. Citizen At The Time Of Ragasa’s Birth Ragasa argues that the agency erred in finding he did not obtain
automatic citizenship under former INA § 301(a)(7), 8 U.S.C. § 1401(a)(7)
(now codified at INA § 301(g); 8 U.S.C. § 1401(g)). At Petitioner’s birth in
1966, INA § 301 provided, in relevant part:
Nationals and citizens of United States at birth
(a) The following shall be nationals and citizens of the United States at birth:
* * *
(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years; Provided . . . [stating other ways citizen parent physical presence requirement could be satisfied in relation to certain governmental service] . . . This provision shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date.
INA § 301(a)(7).2
2 At the time of Ragasa’s adoption in 1980, INA § 301(a)(7) had been amended (Pub. L. 95-432, October 10, 1978) by eliminating the “(a)” before “The
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The Board properly found that former INA § 301(a)(7) did not apply to
adopted children, like Ragasa. A.R. 5. As the Board found, the plain language
of former INA § 301(a)(7) defined nationals and citizens at birth as “person[s]
born . . . of parents one of whom is an alien, and the other a citizen of the
United States.” A.R. 5. As the Board correctly found, nothing in this provision
indicated that it applied adopted children. A.R. 5.
As the Board observed, Petitioner’s case was readily distinguishable from
this Court’s holdings in Scales v. INS, 232 F.3d 1159 (9th Cir. 2000), and Solis-
Espinosa v. Gonzales, 401 F.3d 1090 (9th Cir. 2005). In Scales v. INS, this
Court found that the language “born of parents” in former INA § 301(g)
required only that a person be born in wedlock; it did not require a blood
relationship between the person claiming citizenship and the citizen parent.
232 F.3d 1159, 1164 (9th Cir. 2000). The Court concluded that Scales fell
under former INA § 301(g), even though he did not have a blood relationship
with his U.S. citizen father, because he was born during the marriage of his U.S.
citizen father and his biological Philippine citizen mother and raised as their
child. Id. Importantly, the Court distinguished Scales case from a case where a
following” and redesignating each of the paragraphs formerly designated (1) through (7) as (a) through (g), and continued with the same seven paragraphs which were formerly designated as (1) through (7), but without any other change in the text of any such paragraphs. Thus, what was formerly section 1401(a)(7) became section 1401(g). However, the substance of the section remained substantially the same.
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petitioner was “illegitimate,” or born out of wedlock, noting that “the INA does
expressly require a blood relationship between the person claiming citizenship
and a citizen father, if the person is born out of wedlock.” Id. at 1164, citing
8 U.S.C. § 1409(a)(1) (emphasis added).
In Solis-Espinosa v. Gonzales, this Court similarly found that the
biological child of two non-citizen Mexicans, who was born into a marriage
between a U.S. citizen stepmother and his biological father, fell under former
INA § 301(g). 401 F.3d 1090, 1093-94. The Court noted that the petitioner in
Solis-Espinosa was abandoned by his biological mother, but that the “blood
requirement” in 8 U.S.C. § 1409 did not apply to him as he was not
“illegitimate” but was born into a legitimate marriage between his U.S. citizen
stepmother and his biological father, and raised as their child since birth. Id.
The Court’s holding in Martinez-Madera v. Holder, 559 F.3d 937 (9th
Cir. 2009), makes clear that Scales and Solis-Espinosa are not supportive of
Ragasa’s claims. The petitioner in Martinez-Madera was a born in Mexico in
1953 of Mexican parents. Id. at 938. Six months after Petitioner’s birth, his
mother entered a relationship with a U.S. citizen. Id. The couple married
several years later and moved to the United States, and Petitioner’s mother
naturalized soon thereafter. Id. The Court noted that Scales and Solis-
Espinosa, upon which petitioner relied, were “manifestly distinguishable and
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thus not controlling” in Martinez-Madera’s case. Id. at 941. The Court found
in those cases, “the person claiming citizenship was born into a marital
relationship between a citizen and an alien. In contrast, Martinez-Madera was
born in Mexico of unwed Mexican parents, neither of whom was married to a
United States citizen at the time of Martinez-Madera’s birth.” Id. at 941.
The Martinez-Madera Court also voiced agreement with the finding of
the Fifth Circuit in Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir.
2006) “that a person born of unwed Mexican parents in Mexico did not become
a United States citizen by virtue of her later adoption by a United States citizen,
who was married to neither of her parents at birth.” 559 F.3d at 941. In
Marquez-Marquez, the Fifth Circuit found that “Section 301 [did] not address
citizenship through adoption, and its text explicitly addresse[d] only citizenship
‘at birth.’” 455 F.3d at 556. “Moreover,” the Court held, “section 301(g)
require[d] that the ‘person’ be ‘born . . . of’ a citizen parent, obviously
reflecting a relationship when ‘born.’” Id. at 557 (emphasis in original).
As the Board and this Court have observed, Scales and Solis-Espinosa
involved children born into marriages between a U.S. citizen step-parent and a
biological foreign parent. A.R. 5. The children in those cases were born into
citizenship; they did not acquire citizenship later, like Ragasa, through
naturalized parents. Although this Court found former INA § 301(g) did not
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require a blood relationship between the U.S. citizen parent and the child, it
found the law clearly required the child be “born in wedlock” in order to
acquire citizenship at birth from the U.S. citizen parent. Id. These cases are
clearly distinguishable from Petitioner’s case, and they do not suggest that
former INA § 301(g) would apply to a child, like Ragasa, who was born in a
foreign county of alien parents -- but who was adopted many years later by
U.S. citizen parents who had previously naturalized.
D. Ragasa Did Not Derive Automatic Citizenship Under Former INA 320(a) Because He Was Not Residing With His Adoptive Parents In The United States At The Time Of Their Naturalization The Board also properly found that Ragasa did not obtain citizenship by
operation of former INA § 320. Petitioner was born in 1969; he entered the
United States in 1980 and was adopted in 1981. A.R 72, 257. Ragasa’s
adoptive parents were both naturalized prior to Ragasa’s adoption. Pet’s Br. at
17. At all of these times, a former version of Section 320 was in effect, and
provided:
Children born outside United States of one alien and one citizen parent; conditions for automatic citizenship (a) A child born outside of the United States, one of whose parents at the time of the child's birth was an alien and the other of whose parents then was and never thereafter ceased to be a citizen of the United
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States, shall if such alien parent is naturalized, become a citizen of the United States, when— (1) such naturalization takes place while such child is under the age of sixteen years; and (2) such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of sixteen years. (b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent, in the custody of his adoptive parents, pursuant to a lawful admission for permanent resident.
INA § 320, 8 U.S.C. § 1431(a) (1976).
The Board properly found that former INA § 320 did not apply to grant
Ragasa automatic citizenship. First, as the Board found (and as Petitioner
concedes), Petitioner’s adoptive parents naturalized prior to his arrival in the
United States in 1980. Pet’s Br. at 17. Therefore, Petitioner was not “residing
in the United States at the time of naturalization of his adoptive parent[s];” nor
was he, at that time, “in the custody of his adoptive parents.” Thus, the Board
properly concluded that “according to the plain language of prior section
320(b), [Ragasa] did not derive citizenship under that provision.” A.R. 5.
The Board also addressed Petitioner’s argument that he was a “child,” as
contemplated by former section 320(a) and, therefore, attained citizenship under
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the conditions set forth in that subsection. The Board observed that at the
relevant time period a “child” was defined as an:
Unmarried person under twenty-one years of age and include[ed] a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere, and, except as otherwise provided in sections 1431 to 1434 of this title, a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of sixteen years, and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.
INA § 101(c)(1), 8 U.S.C. § 1101(c)(1) (1976). A.R. 5-6. The Board correctly
observed that “while [that] definition may [have] describe[d] [Ragasa],
Congress crafted distinct additional requirements for conferring automatic
citizenship on children like [Ragasa] who were adopted.” A.R. 6. The Board
reasonably found that “[i]f Congress had intended [Ragasa] to derive
citizenship under section 320(a), section 320(b) would be superfluous.” A.R. 6.
Indeed, this Court has noted that “[w]here Congress includes particular
language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Scales v. INS, 232 F.3d 1159, 1165 (9th
Cir. 2000), citing Russello v. United States, 464 U.S. 16, 23 (1983). Thus, the
Board reasonably found no basis for Ragasa’s argument that INA § 101(c)(1)
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should be interpreted as exempting children adopted prior to their sixteenth
birthday or adopted outside the United States from satisfying the requirements
of INA § 320(b) in order to obtain citizenship. Id.
In light of the foregoing, the agency properly determined that “[t]he
statutory scheme in place prior to [Ragasa’s] eighteenth birthday provided that
adoptive parents of children who did not acquire citizenship automatically
under [INA §] 320 . . . may apply for a certificate of citizenship.” A.R. 6. The
agency correctly concluded that because Ragasa did not dispute that his parents
never applied for a certificate of citizenship on his behalf prior to his eighteenth
birthday, he failed to establish United States citizenship. A.R. 6.
III. THE BOARD PROPERLY FOUND RAGASA REMOVABLE AS AN ALIEN CONVICTED OF A CONTROLLED SUBSTANCE OFFENSE A. Statutory Scheme
Ragasa was charged with removability on the basis of his conviction of a
controlled substance offense. INA § 237(a)(2)(B)(i);8 U.S.C.
§ 1227(a)(2)(B)(i). That section provides:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21 [the Controlled Substances Act (21 U.S.C. 802)]), other than a single offense involving possession for one's
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own use of 30 grams or less of marijuana is deportable.
INA § 237(a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(B)(i); see also 21 U.S.C.
§§ 802(6) and 812(c) (defining “controlled substance”).
This Court has found that “the plain language of this statute requires the
government to prove that the substance underlying an alien’s state law
conviction for possession is one that is covered by Section 102 of the CSA.”
Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir. 2007); see also Matter of
Paulus, 11 I. & N. Dec. 274, 274-75 (BIA 1965); Matter of Mena, 17 I. & N.
Dec. 38, 39 (BIA 1979); Matter of Hernandez-Ponce, 19 I. & N. Dec. 613, 616
(BIA 1988). Thus, in order to prove removability, Ragasa’s conviction must be
for possession of a substance that is not only listed as a controlled substance
under Hawaii law, but also contained in the federal schedules of the CSA. See
Ruiz-Vidal, 473 F.3d at 1077. Although this Court noted that, it has broadly
construed the “relating to” language in 8 U.S.C. § 1227(a)(2)(B)(i), it has found
that “where a particular substance is at issue,” the section “requires that at a
minimum the substance be listed on the federal schedules.” Id. at 1077, n.5.
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B. Ragasa Failed To Establish A Realistic Probability That His Hawaii State Conviction Would Apply To Controlled Substances Not Found In The CSA Petitioner was convicted of Attempted Promoting a Dangerous Drug
in the First Degree, in violation of sections 705-500(I)(b) and 712-
1241(1)(b)(ii) of the HRS. A.R.474. Section 712-1240 of the HRS defines
“dangerous drugs” as “any substance or immediate precursor defined or
specified as a ‘Schedule I substance’ or a ‘Schedule lI substance’ by chapter
329, or a substance specified in section 329-18(c)(13), except marijuana or
marijuana concentrate.”
Petitioner contends that the government has not established his
removability under INA § 237(a)(2)(B)(i ) by clear and convincing evidence
because his conviction records do not identify the controlled substance involved
in his offense and the Hawaii and CSA controlled substance lists are not
coextensive. Specifically, Ragasa asserts that a portion of Hawaii controlled
substance Schedule III (found at HRS § 329-18(c)(13)) does not correspond to
the CSA schedules. Pet’s Br. at 24. He asserts that the list of substances
criminalized under the Hawaii drug statutes includes the substance
“Tiletamine/Zolazepam (Telazol,2-(ethylamino)-2-(thienyl)-cyclohexanone,
flupyrazapon) or any salts thereof,” a substance not listed in the CSA. Id. He
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posits that since the HRS and CSA lists are not coextensive, the government
cannot establish his conviction was related to a controlled substance. Id. at 24.
The Board properly found no merit to Ragasa’s argument, as
“’Tiletamine and zolazepam or any salt thereof, which are also identified as
trade names, including Telazol,2-(ethylamino)-2-(thienyl)-cyclohexanone,
flupyrazapon)’ is included in Schedule III of the CSA.” A.R. 6, citing 21
C.F.R. § 1308.13. Indeed, Section III of the CSA lists as controlled substances:
“Tiletamine and zolazepam or any salt thereof.” It further provides “some trade
or other names for a tiletamine-zolazepam combination product: Telazol” and
that “some trade or other names for tiletamine: 2 -(ethylamino)-2- (2-thienyl)-
cyclohexanone.” C.F.R. § 1308.13(c)(14). The CSA was amended to include
the aforementioned controlled substances on January 21, 1987. See 52 Fed.
Reg. 2221-01 (Jan. 21, 1987); 1987 WL 154793 (F.R.). Therefore, Ragasa’s
argument failed because the substances he identified in the HRS list were also
on the CSA list.
Ragasa also failed to cite any cases in which Hawaii criminalized
conduct involving a substance not covered by the CSA. Therefore, he failed to
establish a realistic probability that Hawaii would apply its statute outside the
federal definition. As the Supreme Court held in Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007):
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to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
549 U.S. 183, 193 (2007).
Because the substance identified by Ragasa actually appears in the CSA
and Ragasa has made no showing that Hawaii law criminalizes conduct
involving “controlled substances” not in the CSA, Ragasa did not establish a
realistic probability that his criminal conviction was for a controlled substance
not contained in the CSA. Therefore, the Board properly found him removable
under INA § 237(a)(2)(B)(i).
IV. RAGASA’S CHALLENGE TO THE AGENCY’S DISCRETIONARY DENIAL OF CANCELLATION OF REMOVAL DOES NOT RAISE A COLORABLE DUE PROCESS CLAIM FOR THIS COURT’S CONSIDERATION Because Ragasa is removable as under INA § 237(a)(2)(B)(i), the Court’s
review of the remaining issues raised in his petition is limited to colorable
constitutional questions and questions of law . See 8 U.S.C. § 1252(a)(2)(C),
(D). To be colorable in this context, the alleged violation need not be
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substantial, but the claim must have some possible validity. See Martinez-
Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (citations and quotations
omitted). Ragasa raised no colorable constitutional claim or question of law
challenging the discretionary denial of his application for cancellation of
removal .
As an initial matter, Ragasa has no liberty interest in the discretionary
relief of cancellation of removal upon which to predicate a due process claim.
As a threshold requirement to any due process claim, an alien must show that he
has a protected property or liberty interest. See Board of Regents v. Roth, 408
U.S. 564, 569 (1972) (“[t]he requirements of procedural due process apply only
to the deprivation of interests encompassed by the [Due Process Clause’s]
protection of liberty and property”). This Court has repeatedly held that aliens
have no liberty interest in discretionary relief, including cancellation of
removal. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008)
(alien “does not have a cognizable liberty interest in discretionary relief from
removal”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (“Since
discretionary relief is a privilege created by Congress, denial of such relief
cannot violate a substantive interest protected by the Due Process Clause.”)
Regardless, the agency did not abuse it discretion in considering
Ragasa’s testimony regarding his history of drug use in evaluating his eligibility
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for cancellation of removal. As the Board observed, “[a]ccording to the
framework set forth in Matter of Marin, 16 I. & N. Dec. 581, 582-83 (BIA
1978), in exercising discretion an immigration judge must review the record in
its entirety and then balance the social and humane considerations presented in
an alien’s favor against the adverse factors evidencing his undesirability as a
permanent resident.” A.R. 7, citing Matter of C-V-T-, 22 I. & N. Dec. 7 (BIA
1998). Indeed, this Court has observed that the agency has an obligation, in
determining whether to grant cancellation of removal, “to weigh both favorable
and unfavorable factors by evaluating all of them, assigning weight or
importance to each one separately and then to all of them cumulatively.”
Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.2006). One such
factor an immigration judge should consider is whether the petitioner is a law-
abiding citizen. See In re O-J-O-, 21 I. & N. Dec. 381, 387 (BIA 1996)
(With regard to the exercise of discretion, immigration judge may consider
whether alien pays his taxes and is law abiding).
It is clear from the record that the immigration judge and the Board fully
and thoughtfully considered the positive and negative factors relevant to
Ragasa’s application for cancellation of removal. Ragasa testified freely and
truthfully about his history of drug use; he has not claimed that his testimony
regarding his history of drug use was given under duress or that it was untrue or
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even misinterpreted. Therefore, Petitioner’s allegation that the agency violated
his rights in considering his history of drug use in evaluating his eligibility for
cancellation of removal does not present a colorable due process claim for this
Court’s review.
CONCLUSION
For the foregoing reasons, the Court should dismiss or, in the alternative,
deny the petition for review.
Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General
ERNESTO H. MOLINA, JR. Assistant Director s/ S. NICOLE NARDONE S. NICOLE NARDONE Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20530 (202) 305-7082
July 16, 2013 Attorneys for Respondent
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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7), I certify that
the Brief for Respondent:
(1) was prepared using Times New Roman 14 type; (2) contains 8,836 words of text.
s/ S. NICOLE NARDONE S. NICOLE NARDONE Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20530 (202) 305-7082
July 16, 2013 Attorneys for Respondent
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STATEMENT REGARDING ORAL ARGUMENT
Respondent believes that the issues are adequately addressed in the
briefs and that oral argument is unnecessary. However, should the Court
schedule oral argument, Respondent requests an amount of time equal to that
afforded to the Ramos-Garcia.
s/ S. NICOLE NARDONE S. NICOLE NARDONE Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20530 (202) 305-7082
July 16, 2013 Attorneys for Respondent
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CERTIFICATE OF SERVICE
I hereby certify that on July 16 , 2013, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system. I further certify that
the following CM/ECF participants will be served by the appellate CM/ECF
system.
M. CORA AVINANTE 550 HALEKAUWILA STREET SUITE #304 HONOLULU, HAWAII 96813
s/ S. NICOLE NARDONE S. NICOLE NARDONE Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20530 (202) 305-7082
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