Crisanto Ragasa v. Eric Holder, Jr. , 752 F.3d 1173 ( 2014 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CRISANTO CARINO RAGASA,                  No. 12-72262
    Petitioner,
    Agency No.
    v.                      A037-485-221
    ERIC H. HOLDER, JR., Attorney
    General,                                  OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    February 20, 2014—University Of Hawaii, Manoa
    Filed April 28, 2014
    Before: Michael Daly Hawkins, M. Margaret McKeown,
    and Carlos T. Bea, Circuit Judges.
    Opinion by Judge McKeown
    2                      RAGASA V. HOLDER
    SUMMARY*
    Immigration
    The panel granted Crisanto Ragasa’s petition for review
    of the Board of Immigration Appeals’ decision finding him
    removable based on his Hawaii state court drug conviction.
    The panel held that Ragasa’s conviction for attempted
    promoting a dangerous drug was based on a crime the
    elements of which encompassed actions beyond those
    required pursuant to the federal Controlled Substances Act,
    and thus under the categorical approach the state conviction
    was not a ground for removability.
    The panel denied Ragasa’s citizenship claim, holding that
    under the law in effect at the time of the relevant events
    Ragasa did not acquire citizenship from his adoptive parents.
    The panel held that former Immigration and Nationality Act
    § 320(a) does not apply to adopted children, and that he did
    not acquire citizenship under former INA § 320(b) because he
    was not residing in the U.S. nor was he in the custody of his
    adoptive parents at the time they naturalized. The panel also
    held that because Ragasa’s adoptive parents did not become
    his legal parents until fourteen years after his birth he could
    not obtain citizenship through them under former INA
    § 301(a)(7).
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    RAGASA V. HOLDER                        3
    COUNSEL
    M. Cora Avinante (argued), Law Office of M. Cora Avinante,
    Honolulu, Hawai‘i, for Petitioner.
    Theodore William Atkinson (argued), Trial Attorney; Stuart
    F. Delery, Acting Assistant Attorney General; Ernesto H.
    Molina, Assistant Director; S. Nicole Nardone, Trial
    Attorney, Civil Division, United States Department of Justice,
    Washington, D.C., for Respondent.
    OPINION
    McKEOWN, Circuit Judge:
    Crisanto Ragasa was born in the Philippines in 1966 to
    two married Filipino citizens (his “biological parents”). At
    the age of fourteen, he immigrated to the United States and
    was adopted by his uncle and aunt (his “adoptive parents”),
    both naturalized U.S. citizens. Years later in 2008, Ragasa
    was convicted in Hawai‘i state court for “Attempted
    Promoting a Dangerous Drug in the First Degree,” in
    violation of 
    Haw. Rev. Stat. §§ 705-500
    (1)(b), 712-
    1241(1)(b)(ii). The government initiated immigration
    proceedings against Ragasa, a lawful permanent resident,
    charging him as a removable alien because of his drug-related
    conviction. The immigration judge (“IJ”) ordered Ragasa
    removed, and the Board of Immigration Appeals (“BIA”)
    dismissed his appeal from the IJ’s removal order and denial
    of his application for cancellation of removal. Ragasa timely
    petitions for review of the BIA’s decision. We have
    jurisdiction under 
    8 U.S.C. § 1252
    , and we grant the petition.
    4                      RAGASA V. HOLDER
    I. Citizenship Claim
    Contrary to his view, Ragasa did not automatically
    acquire U.S. citizenship from his adoptive parents under
    former Section 320 and 301(a)(7) of the Immigration and
    Nationality Act (“INA”). In analyzing this issue de novo, we
    look to “the law in effect at the time the critical events giving
    rise to eligibility occurred,” which in this case are the dates of
    Ragasa’s birth (1966), his entry into the United States (1980),
    and his adoption (1980). Minasyan v. Gonzales, 
    401 F.3d 1069
    , 1074–75 (9th Cir. 2005).
    To begin, as an adopted child, Ragasa does not acquire
    citizenship under former Section 320(b) because he was
    neither “residing in the United States” nor “in the custody of
    his adoptive parents” at the time they naturalized. An Act to
    Amend the INA, Pub. L. No. 95-417, 
    92 Stat. 917
     (1978)
    (codified at 
    8 U.S.C. § 1431
     (Supp. 1978)).1 Nor does Ragasa
    1
    At the time of Ragasa’s adoption and arrival to the United States,
    former Section 320 of the INA provided:
    (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 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 eighteen 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
    RAGASA V. HOLDER                                 5
    qualify for citizenship under former Section 320(a) because
    Section 320(b), not Section 320(a), applies to adopted
    children. 
    Id.
     Ragasa’s contrary view rests on an
    interpretation of the statute that ignores the statutory text and
    renders Section 320(b) superfluous. Chubb Custom Ins. Co.
    v. Space Sys./Loral, Inc., 
    710 F.3d 946
    , 966 (9th Cir. 2013)
    (“It is a well-established rule of statutory construction that
    courts should not interpret statutes in a way that renders a
    provision superfluous.”).
    Ragasa’s citizenship claim under former Section
    301(a)(7) is equally unavailing because that section requires
    one parent to be a U.S. citizen at the time of the child’s birth
    outside of the United States and the other to be an alien. An
    Act to Amend Section 301(a)(7) of the INA, Pub. L. No. 89-
    770, 
    80 Stat. 1322
     (1966) (codified at 
    8 U.S.C. § 1401
    (a)(7)
    (Supp. 1966)).2 Neither of Ragasa’s biological parents was
    eighteen years.
    (b) Subsection (a)(1) of this section shall apply to a child adopted
    while under the age of sixteen years who 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 residence.
    
    8 U.S.C. § 1431
     (Supp. 1978). Notably, an earlier version of former
    Section 320, in effect during Ragasa’s birth, excluded adopted children
    like him from obtaining citizenship under its provisions altogether. See
    
    8 U.S.C. § 1431
    (b) (1964).
    2
    At the time of Ragasa’s birth in 1966, Section 301(a)(7) of the INA
    provided:
    (a) The following shall be nationals and citizens of the
    United States at birth:
    6                       RAGASA V. HOLDER
    a U.S. citizen when he was born. Although Ragasa’s
    adoptive parents were naturalized U.S. citizens at the time of
    his birth, they did not become his legal parents until fourteen
    years later. Hence, Ragasa cannot obtain citizenship through
    his adoptive parents under former Section 301(a)(7).
    Neither of the cases cited by Ragasa—Scales v. INS,
    
    232 F.3d 1159
     (9th Cir. 2000) and Solis-Espinoza v.
    Gonzales, 
    401 F.3d 1090
     (9th Cir. 2005)—supports his
    argument that a foreign-born child, whose biological parents
    were not U.S. citizens at the time of his birth, obtains
    citizenship under Section 301(a)(7) through a subsequent
    adoption by U.S. citizens. Unlike in those cases, Ragasa was
    not “born into a marital relationship between a citizen and an
    alien.” Martinez-Madera v. Holder, 
    559 F.3d 937
    , 941 (9th
    Cir. 2009); see Solis-Espinoza, 
    401 F.3d at 1091
    ; Scales,
    
    232 F.3d at
    1161–62; see also Marquez-Marquez v. Gonzales,
    
    455 F.3d 548
    , 559 (5th Cir. 2006) (distinguishing Scales and
    ...
    (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 . . . .
    
    8 U.S.C. § 1401
    (a)(7) (Supp. 1966). By 1980, the year of Ragasa’s
    adoption, Section 301(a)(7) had been redesignated as Section 301(g), but
    otherwise remained the same in substance as the version of the statute in
    effect at the time of Ragasa’s birth. An Act to Repeal Certain Sections of
    Title III of the INA, Pub. L. No. 95-432, 
    92 Stat. 1046
     (1978) (codified at
    
    8 U.S.C. § 1401
    (g) (Supp. 1978)).
    RAGASA V. HOLDER                        7
    Solis-Espinoza because neither of “petitioner’s biological
    parents was married to a U.S. citizen at the time of the
    petitioner’s birth”). We therefore deny Ragasa’s citizenship
    claim.
    II. Removability
    Nevertheless, we conclude on de novo review that Ragasa
    is not removable as charged because his state conviction does
    not constitute a predicate offense for purposes of
    removability under Section 237(a)(2)(B)(i) of the INA,
    
    8 U.S.C. § 1227
    (a)(2)(B)(i). See Mielewczyk v. Holder,
    
    575 F.3d 992
    , 994–95 (9th Cir. 2009). To establish
    removability under Section 237(a)(2)(B)(i), the government
    must prove that the drug underlying Ragasa’s state conviction
    is covered by Section 102 of the federal Controlled
    Substances Act (“CSA”). Ruiz-Vidal v. Gonzales, 
    473 F.3d 1072
    , 1076 (9th Cir. 2007), abrogated on other grounds by
    Kwong v. Holder, 
    671 F.3d 872
     (9th Cir. 2011). In
    determining whether the government has discharged this
    burden, we employ the analytical framework established in
    Taylor v. United States, 
    495 U.S. 575
     (1990), turning first to
    the categorical approach. Mielewczyk, 
    575 F.3d at 994
    .
    Under the categorical approach, we examine “only the
    statutory definition of the crime to determine whether the
    state statute of conviction renders an alien removable under
    the statute of removal,” 
    id.,
     without looking to the actual
    conduct underlying the petitioner’s offense. Ragasa is not
    categorically removable under Section 237(a)(2)(B)(i) of the
    INA because his statute of conviction criminalizes at least
    two substances that are not similarly proscribed by the CSA:
    benzylfentanyl and thenylfentanyl. Compare 
    Haw. Rev. Stat. §§ 329-14
    (b)(56) & (57) (2003); 
    Haw. Rev. Stat. § 712-1240
    8                       RAGASA V. HOLDER
    (2004); 
    Haw. Rev. Stat. § 712-1241
    (1)(b)(ii) (2006), with
    
    21 U.S.C. § 812
    ; 
    21 C.F.R. §§ 1308.11
    –15.3
    The categorical approach does not end our inquiry.
    Because the statute of conviction “identifies a number of
    controlled substances by referencing various [state] drug
    schedules and statutes and criminalizes the possession of any
    one,” it is a “divisible” statute, and we may resort to the
    modified categorical approach to determine whether Ragasa’s
    crime of conviction is a removable offense.4 See Coronado
    v. Holder, — F.3d — , No. 11-72121, 
    2014 WL 983621
    , at
    *3–5 (9th Cir. Mar. 14, 2014) (citing Descamps v. United
    States, 
    133 S. Ct. 2276
    , 2281, 2283–85 (2013)). Under the
    modified categorical approach, we review “a limited set of
    3
    Although benzylfentanyl and thenylfentanyl were temporarily added
    on an emergency basis to Schedule I of the CSA in 1985, the listing
    expired after a year. Schedules of Controlled Substances, 
    50 Fed. Reg. 43,698
    , 43,701 (Oct. 29, 1985); see also Joint Resolution Making
    Continuing Appropriations, Pub. L. No. 98-473, 
    98 Stat. 1837
     (1984)
    (codified at 
    21 U.S.C. § 811
    (h)(2) (Supp. 1984)). Since the temporary
    listing expired in 1986, these substances have not been permanently added
    to the CSA. United States v. Madera, 
    521 F. Supp. 2d 149
    , 155 & n.4 (D.
    Conn. 2007) (“[B]enzylfentanyl and thenylfentanyl have not been listed
    on the federal controlled substance schedules since 1986.”).
    4
    Although the BIA did not apply the modified categorical approach,
    remanding this matter to the agency to conduct the analysis in the first
    instance is not warranted for several reasons. See Fernandez-Ruiz v.
    Gonzales, 
    466 F.3d 1121
    , 1133–34 (9th Cir. 2006) (en banc) (declining to
    remand to BIA and applying modified categorical approach in first
    instance). First, the documents of conviction in the record “cannot
    possibly be interpreted” to establish Ragasa’s removability; second, there
    is no possibility that new evidence has developed since the BIA’s
    erroneous decision; third, the BIA has already considered the issue of
    Ragasa’s removability; and fourth, and most importantly, at argument, the
    government declined to request remand. 
    Id.
    RAGASA V. HOLDER                               9
    documents in the record of conviction: the indictment, the
    judgment of conviction, jury instructions, a signed guilty
    plea, or the transcript from the plea proceedings.” Medina v.
    Ashcroft, 
    393 F.3d 1063
    , 1066 (9th Cir. 2005) (internal
    quotation marks omitted). As the government candidly
    acknowledged during oral argument, the documents of
    conviction in the record do not establish that Ragasa’s state
    conviction involved a controlled substance listed in the CSA.
    Because the government has not carried its burden of proving
    Ragasa’s removability by clear and convincing evidence, we
    grant the petition and vacate the order of removal. See
    Tokatly v. Ashcroft, 
    371 F.3d 613
    , 624 (9th Cir. 2004).5
    PETITION GRANTED.
    5
    On February 24, 2014, we ordered the United States to release Ragasa
    from custody. In light of our holding that Ragasa is not removable, we
    need not address Ragasa’s final argument that the agency erred by denying
    his request for cancellation of removal.