Sawyers, et al v. Mukasey

Filing

FILED PER CURIAM OPINION (SUSAN P. GRABER, RICHARD R. CLIFTON and CORMAC J. CARNEY) DENIED. FILED AND ENTERED JUDGMENT. [8232737]

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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.

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SAWYERS v. HOLDER

COUNSEL
Hugo F. Larios, Hugo F. Larios Law, P.L.L.C., Tempe, Arizona, for the petitioner.

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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Cir. 2010) (unpublished decision).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 Because Cuevas-Gaspar and Mercado-Zazueta are no
longer valid precedent on the issue of imputation under 8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.

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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.