Cesar Grijalva Limon v. Loretta Lynch , 667 F. App'x 150 ( 2016 )

Case: 15-60344 Document: 00513566672 Page: 1 Date Filed: 06/27/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 15-60344 June 27, 2016
Summary Calendar Lyle W. Cayce
Clerk
CESAR L. GRIJALVA LIMON, also known as Cesar Ivan Grijalva-Limon,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078 624 266
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Cesar L. Grijalva Limon, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from
the immigration judge’s (IJ) denial of his application for cancellation of
removal.
In 1994, Grijalva entered the United States without inspection; seven
years later, he adjusted his status to that of a lawful permanent resident. He
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 15-60344
has four criminal convictions, including a 2007 Kansas state-law conviction for
attempted possession of drug paraphernalia. In 2014, following a state-law
drug conviction in Texas, Grijalva was charged with being an alien subject to
removal under 8 U.S.C. § 1227(a)(2)(B)(i) (providing removability for aliens
convicted of controlled-substance violations).
Grijalva conceded removability, and applied for cancellation of removal
under 8 U.S.C. § 1229b(a). To be eligible under that subsection, Grijalva was
required to show, inter alia, he resided in the United States continuously for
seven years after being admitted in any status. See 8 U.S.C. § 1229b(a). The
IJ determined, and the BIA affirmed, Grijalva failed to show he continuously
resided in the United States for seven years after his admission, because his
2007 Kansas controlled-substance conviction rendered him inadmissible on the
day the crime was committed. See Miresles-Zuniga v. Holder, 743 F.3d 110,
112 (5th Cir. 2014); see also 8 U.S.C. § 1182(a)(2)(A)(i)(II). In challenging that
determination, Grijalva asserts: his Kansas conviction is not a controlled-
substance conviction; therefore, his period of continuous residence was
uninterrupted.
“This [c]ourt has jurisdiction to review only legal and constitutional
issues raised pertaining to removal orders.” Vasquez-Martinez v. Holder, 564
F.3d 712, 715 (5th Cir. 2009). Because Grijalva presents such an issue, the
BIA’s determination is reviewed “de novo, deferring to [its] interpretation of
the statutes and regulations it administers”. Id. The IJ’s underlying decision
is reviewed only to the extent it impacted the BIA’s opinion. E.g., Sharma v.
Holder, 729 F.3d 407, 411 (5th Cir. 2013).
As provided in 8 U.S.C. § 1182(a)(2)(A)(i)(II), an alien is inadmissible
when the alien violates a law regulating a controlled substance (as defined in
21 U.S.C. § 802). Because Kansas’ controlled-substance schedules include
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No. 15-60344
substances not listed in § 802, Kansas’ drug-paraphernalia offenses do not
categorically “relate to a controlled substance”. See Mellouli v. Lynch, 135 S.
Ct. 1980, 1990–91 (2015). The BIA determined, however, that the state statute
was divisible; therefore, Grijalva had the burden of showing, under the
modified-categorical approach, that his drug-paraphernalia conviction was
related to a substance not included in § 802. See Descamps v. United States,
133 S. Ct. 2276, 2284–86 (2013); United States v. Rodriguez-Negrete, 772 F.3d
221, 225 (5th Cir. 2014), cert. denied 135 S. Ct. 1538 (9 A.K. Marsh. 2015). Because
the record was inconclusive as to the type of controlled substance involved in
the offense, the BIA concluded Grijalva failed to prove his conviction was not
for an offense relating to a controlled substance (as defined in § 802).
Grijalva does not contest here the statute’s divisibility. Instead, he relies
on Mellouli for the proposition that his Kansas conviction was not categorically
related to a controlled substance offense. In Mellouli, the burden was on the
Government to show removability. 135 S. Ct. at 1983–84, 1986 n.4. But here,
the burden was on Grijalva to establish his eligibility for cancellation of
removal. See Vasquez-Martinez, 564 F.3d at 715–17; 8 U.S.C.
§ 1229a(c)(4)(A)(i); 8 C.F.R. § 1240.8(d). Because the record is ambiguous,
Grijalva fails to show his Kansas offense was not related to a federal controlled
substance; therefore, he has not established eligibility for cancellation of
removal.
DENIED.
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