Sawyers, et al v. Mukasey



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Case: 08-70181 06/29/2012 ID: 8232737 DktEntry: 51-1 Page: 1 of 4 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAMIEN ANTONIO SAWYERS, aka Damien Sawyers, Petitioner, v. ERIC H. HOLDER JR., Attorney General, Respondent.   No. 08-70181 Agency No. A044-852-478 OPINION  On Remand from the United States Supreme Court Filed June 29, 2012 Before: Susan P. Graber and Richard R. Clifton,* Circuit Judges, and Cormac J. Carney,** District Judge. Per Curiam Opinion *Judge Richard R. Clifton was drawn to replace Judge Robert R. Beezer pursuant to General Order 3.2(g). He has read the briefs and reviewed the record. **The Honorable Cormac J. Carney, United States District Judge for the Central District of California, sitting by designation. 7749 Case: 08-70181 7750 06/29/2012 ID: 8232737 DktEntry: 51-1 Page: 2 of 4 SAWYERS v. HOLDER COUNSEL Hugo F. Larios, Hugo F. Larios Law, P.L.L.C., Tempe, Arizona, for the petitioner. Case: 08-70181 06/29/2012 ID: 8232737 SAWYERS v. HOLDER DktEntry: 51-1 Page: 3 of 4 7751 Kathryn M. McKinney, Attorney, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent. OPINION PER CURIAM: [1] Petitioner Damien Antonio Sawyers petitions for review from the Board of Immigration Appeals’ (“BIA”) denial of cancellation of removal under 8 U.S.C. § 1229b(a). The BIA held that Petitioner could not demonstrate that he met the seven-year continuous residence requirement, id. § 1229b(a)(2). In our original decision, we followed CuevasGaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), and Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009), to hold that the years of residence of Petitioner’s mother were imputed to him. Sawyers v. Holder, 399 F. App’x 313 (9th Cir. 2010) (unpublished decision). We therefore granted the petition. Id. at 314. The Supreme Court granted certiorari, Holder v. Sawyers, 132 S. Ct. 71 (2011), and reversed our decision, Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012). Because Cuevas-Gaspar and Mercado-Zazueta are no longer valid precedent on the issue of imputation under 8 U.S.C. § 1229b, we now reject Petitioner’s imputation argument concerning his mother’s residence. [2] In the alternative,1 Petitioner challenges the BIA’s determination that his 2002 conviction terminated his continuous residence. See 8 U.S.C. § 1229b(d)(1). Specifically, Petitioner argues that his conviction for “maintaining a dwelling for keeping controlled substances,” in violation of 16 Delaware Code section 4755(a)(5) (2002), might have qualified as “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. § 1227(a)(2)(B)(i). 1 Because we granted the petition in our original decision, we did not reach this alternative argument. Case: 08-70181 7752 06/29/2012 ID: 8232737 DktEntry: 51-1 Page: 4 of 4 SAWYERS v. HOLDER We disagree. The indictment alleged that Petitioner maintained a specific dwelling that was used for keeping controlled substances as described in one or more of the five other counts. Four of those counts involve cocaine, not marijuana. The fifth count alleges possession of marijuana with intent to distribute. Accordingly, it is not possible that Petitioner’s conviction involved only “possession for one’s own use of 30 grams or less of marijuana.” Id. (emphasis added). Petition DENIED.

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