Ramon Macias-Carreon v. Eric Holder, Jr.

Filing

FILED OPINION (JOHN T. NOONAN, KIM MCLANE WARDLAW and MARY H. MURGUIA) DENIED. Judge: JTN , Judge: KMW , Judge: MHM Authoring. FILED AND ENTERED JUDGMENT. [8647669]

Case: 10-70380

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ID: 8647669

DktEntry: 27-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RAMON MACIAS-CARREON ,
Petitioner,

No. 10-70380

v.

Agency No.
A072-300-102

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 8, 2013*
Pasadena, California
Filed May 30, 2013
Before: John T. Noonan, Kim McLane Wardlaw,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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MACIAS-CARREON V . HOLDER
SUMMARY**

Immigration
The panel denied Ramon Macias-Carreon’s petition for
review of the Board of Immigration Appeals’ decision finding
that his conviction for possession of marijuana for sale, in
violation of California Health & Safety Code § 11359, is
categorically a crime relating to a controlled substance.
The panel found that Macias-Carreon failed to meet his
burden of proving a “realistic probability” that California
would apply § 11359 to conduct not related to a controlled
substance, and held that the conviction is thus a categorical
crime relating to a controlled substance under the
Immigration and Nationality Act.

COUNSEL
Elsa Ines Martinez, Law Offices of Elsa Martinez, PLC, Los
Angeles, California, for Petitioner.
Matt Crapo, Department of Justice, Civil Division,
Washington, D.C., for Respondent.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
MURGUIA, Circuit Judge:
We have held that California Health & Safety Code
§ 11359 is categorically a “controlled substance offense” for
sentencing purposes. United States v. Sandoval-Venegas,
292 F.3d 1101, 1107 (9th Cir. 2002). We now hold that
§ 11359 is categorically a crime “relating to a controlled
substance” under the Immigration and Nationality Act.
I. Background
Petitioner Ramon Macias-Carreon, a native and citizen of
Mexico, entered the United States in 1988 without inspection
and without being admitted or paroled. On July 1, 1992,
Macias-Carreon pled guilty in California state court to
violating California Health & Safety Code § 11359 and was
sentenced to 120 days imprisonment and three years of
probation. Section 11359 provides that “[e]very person who
possesses for sale any marijuana . . . shall be punished by
imprisonment.”
On February 20, 2007, the Department of Homeland
Security served Macias-Carreon with a Notice to Appear
(“NTA”). The NTA alleged Macias-Carreon was removable
pursuant to (1) 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present
in the United States without being admitted or paroled and (2)
8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of
violating a law relating to a controlled substance. The latter
charge was based on Macias-Carreon’s 1992 conviction
under California Health & Safety Code § 11359 for
possessing marijuana for purposes of sale: marijuana is a
“controlled substance” under federal law. 21 U.S.C. § 812,

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MACIAS-CARREON V . HOLDER

Schedule I (c)(10); see also id. § 802(6). An immigration
judge found Macias-Carreon was removable on both charges
alleged in the NTA.
Macias-Carreon appealed to the Board of Immigration
Appeals (“BIA”), where he proposed that California Health
& Safety Code § 11359 prohibits the possession not only of
marijuana for purposes of sale, but the possession for
purposes of sale of other drugs that are not “controlled
substances” under federal law. Thus, Macias-Carreon argued,
§ 11359 is a divisible statute and the government could not
meet its burden of proving under the modified categorical
approach that he had violated a law relating to a controlled
substance. Macias-Carreon also asked the BIA to remand his
case because, absent a conviction for a crime relating to a
controlled substance, he was eligible to adjust his status. See
8 U.S.C. § 1229b(b)(1). The BIA determined that § 11359 is
categorically a crime relating to a controlled substance and
denied Macias-Carreon’s motion to remand.
Macias-Carreon petitions for review, again contending
that § 11359 is not categorically a crime relating to a
controlled substance. We have jurisdiction pursuant to
8 U.S.C. § 1252.
II. Discussion
We review de novo the BIA’s interpretation of an alien’s
statute of conviction. Nunez v. Holder, 594 F.3d 1124, 1129
(9th Cir. 2010). When conducting a categorical analysis, we
compare the alien’s statute of conviction with the federal
ground for removal to determine whether conduct proscribed
by the statute categorically falls within the range of conduct

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covered by the federal ground. Sanchez-Avalos v. Holder,
693 F.3d 1011, 1014 (9th Cir. 2012).
California Health & Safety Code § 11359 prohibits the
possession of marijuana for purposes of sale, and marijuana
is a controlled substance under federal law. MaciasCarreon’s assertion that someone could be convicted of
violating § 11359 without possessing marijuana for purposes
of sale is facially implausible and unaccompanied by a single
citation to a case in which this has occurred. Accordingly, he
fails to meet his burden of proving a “realistic probability”
that California would apply § 11359 to conduct not related to
a controlled substance. See Gonzalez-Cervantes v. Holder,
709 F.3d 1265, 1266 (9th Cir. 2013) (internal quotation marks
omitted). Just as § 11359 is categorically a “controlled
substance offense” for sentencing purposes, SandovalVenegas, 292 F.3d at 1107, it is categorically a crime
“relating to a controlled substance” for immigration purposes.
PETITION DENIED.