Adrian Guerra-Rosabal v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
AUG 15 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN GUERRA-ROSABAL, AKA No. 18-73195
Adrian Guerra Rosabal, AKA Adrian
Guerra Rosabas, AKA Abrian Guerra- Agency No. A098-631-949
Rosabal, AKA Adrian Lazaro, AKA
Adrian G. Rosabal,
MEMORANDUM**
Petitioner,
v.
MERRICK B. GARLAND,* Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 8, 2022***
San Francisco, California
Before: RAWLINSON, BADE, and BRESS, Circuit Judges.
*
Merrick Garland is substituted for his predecessor, Matthew Whitaker,
as Attorney General of the United States. Fed. R.App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Petitioner Adrian Guerra-Rosabal (Guerra-Rosabal) is a native and citizen of
Cuba. He seeks review of an order from the Board of Immigration Appeals (BIA)
dismissing his appeal of an order of removal by an Immigration Judge (IJ). The IJ
found that Guerra-Rosabal’s conviction under Arizona Revised Statute (A.R.S.) §
13-3405(A)(2) renders him removable under 8 U.S.C. § 1227(a)(2)(B)(i)
(controlled substance offense) and 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated
felony). Although we lack jurisdiction to review final orders of removal against
noncitizens who have committed offenses covered by 8 U.S.C. § 1227(a)(2)(B)(i)
or § 1227(a)(2)(A)(iii), see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to
determine whether this jurisdictional bar applies. See Randhawa v. Ashcroft, 298
F.3d 1148, 1152 (9th Cir. 2002). Because the bar applies here, we DISMISS the
petition.
1. We review de novo whether an offense relates to a controlled substance,
and whether an offense constitutes an aggravated felony. See Cabantac v. Holder,
736 F.3d 787, 792 (9th Cir. 2013) (per curiam), as amended (controlled substance
offense); Roman-Suaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014)
(aggravated felony).
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2. Because the parties concede that A.R.S. § 13-3405 is a divisible statute,
we apply the modified categorical approach.1 See United States v. Marcia-Acosta,
780 F.3d 1244, 1250 (9th Cir. 2015) (applying the modified categorical approach
when the petitioner did not challenge the statute’s divisibility in his opening brief).
3. The BIA did not err by concluding that Guerra-Rosabal is removable
under § 1227(a)(2)(B)(i) because his conviction is “relat[ed] to a controlled
substance.” 8 U.S.C. § 1227(a)(2)(B)(i). Guerra-Rosabal’s plea agreement reflects
that he pled guilty to felony “Possession [o]f Marijuana [f]or Sale.” The
information similarly charged Guerra-Rosabal with a Class 2 Felony for
“knowingly . . . . possess[ing] for sale an amount of marijuana . . . in violation of
A.R.S. . . . [§] 13-3405.”2 Through these documents, the government met its
burden of proving that Guerra-Rosabal’s conviction related to a controlled
substance. See Mielewczyk v. Holder, 575 F.3d 992, 995–96 (9th Cir. 2009)
(“Because the charging document and the plea agreement establish that the crime
involved heroin, the government has met its burden to prove that Mielewczyk’s
1
Because the parties agree to the applicability of the modified categorical
approach, we do not address application of the categorical approach.
2
The BIA’s mistaken reference to “the indictment”—rather than “the
information” by which Guerra-Rosabal was actually charged—was harmless
because the information contains the language referenced by the BIA, and is a
“comparable judicial record.” Marcia-Acosta, 780 F.3d at 1250.
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conviction involved a substance listed in the federal schedules of the CSA.”); see
also 21 U.S.C. § 802(6), (16), 812(c) sched. I(C)(10) (listing marijuana as a
controlled substance).
Guerra-Rosabal’s argument on appeal that the BIA erred by concluding that
the plea agreement and the charging document establish that he was convicted of
violating A.R.S. § 13-3405(A)(2) is unpersuasive. Although the plea agreement
and the charging document do not cite A.R.S. § 13-3405(A)(2), they describe the
relevant count “us[ing] language that directly track[s]” that provision. Altayar v.
Barr, 947 F.3d 544, 550 (9th Cir. 2020); see also A.R.S. § 13-3405(A)(2)
(prohibiting a person from knowingly “posess[ing] marijuana for sale”).
4. Neither did the BIA err by concluding that Guerra-Rosabal is removable
under § 1227(a)(2)(A)(iii) due to a conviction for an aggravated felony. As
discussed, the plea agreement and charging document establish that Guerra-
Rosabal was convicted of felony possession of marijuana for sale; such a
conviction is necessarily an aggravated felony. See Rendon v. Mukasey, 520 F.3d
967, 976 (9th Cir. 2008), as amended (“We therefore hold that possession of a
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controlled substance with the intent to sell contains a trafficking element and is an
aggravated felony.”)3.
PETITION DISMISSED.
3
Guerra-Rosabal does not challenge either the agency’s particularly serious
crime determination or its denial of his application for relief under the Convention
Against Torture. These issues are therefore waived. See Martinez-Serrano v.
I.N.S., 94 F.3d 1256, 1259–60 (9th Cir. 1996) .
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