Ronulfo Vicente v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONULFO ADAN CIFUENTES No. 17-73319
VICENTE,
Agency No. A070-916-907
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2020**
Pasadena, California
Before: FERNANDEZ, PAEZ, and OWENS, Circuit Judges.
Petitioner Ronulfo Adan Cifuentes Vicente, a citizen of Guatemala, petitions
for review of the Board of Immigration Appeals (BIA)’s decisions dismissing his
appeal of the Immigration Judge (IJ)’s denial of his application for cancellation of
removal. “We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review
*
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).
questions of law when a final order of removal is predicated on a criminal
offense.” Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009). “Whether a
particular conviction is a removable offense is a question of law we review de
novo.” Id. (citation and brackets omitted). For the reasons explained below, we
grant the petition and remand.
1. Our prior decisions dictate the outcome of Cifuentes’ petition.
Although a non-citizen may generally seek cancellation of removal under 8 U.S.C.
§ 1229b, such relief is prohibited if the non-citizen has been convicted of an
offense enumerated in 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3). See
§ 1229b(b)(1)(C). Sections 1182(a)(2)(A)(i)(II) and 1227(a)(2)(B)(i) include
convictions for “a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State . . . relating to a controlled substance (as defined in section
802 of Title 21).”
We have repeatedly held that generic solicitation statutes are not laws
“relating to a controlled substance.” Leyva-Licea v. INS, 187 F.3d 1147, 1149 (9th
Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir 1997); see
Mielewczyk, 575 F.3d at 996 (“[C]onvictions under generic solicitation statutes do
not render [a non-citizen] removable under 8 U.S.C. § 1227(a)(2)(B)(i), ‘even
when the underlying solicited conduct is a narcotics violation.’” (quoting Leyva-
Licea, 187 F.3d at 1149)). And we previously determined in Mielewczyk that
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California Penal Code (CPC) section 653f(d) is a generic solicitation statute, and
thus not a law relating to a controlled substance. 575 F.3d at 998. Therefore,
Cifuentes’ conviction under CPC section 653f(d) does not render him removable
under 8 U.S.C. §§ 1227(a)(2)(B)(i) or 1182(a)(2)(A)(i)(II).
2. The BIA erred by characterizing our statement in Mielewczyk as
nonbinding dicta. When “a panel confronts an issue germane to the eventual
resolution of the case, and resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit, regardless of whether doing so
is necessary in some strict logical sense.” United States v. McAdory, 935 F.3d 838,
843 (9th Cir. 2019) (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th
Cir. 2004)). “In other words, ‘well-reasoned dicta is the law of the circuit.’” Id.(quoting Enying Li v. Holder, 738 F.3d 1160, 1164 n.2 (9th Cir. 2013)).
In Mielewczyk, we considered whether a conviction under California Health
and Safety Code (CHSC) section 11352(a) for offering to transport heroin
constituted a violation of a law “relating to a controlled substance” under 8 U.S.C.
§ 1227(a)(2)(B)(i). 575 F.3d at 993. We distinguished CHSC section 11352 from
CPC section 653f(d), concluding that only the latter is a “generic solicitation
statute.” Id. at 998. Thus, the petitioner’s conviction rendered him removable
under § 1227(a)(2)(B)(i). Id.; see also Guerrero-Silva v. Holder, 599 F.3d 1090,
1093 (9th Cir. 2010).
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Our conclusion regarding CPC section 653f(d) was “germane to the eventual
resolution of the case.” McAdory, 935 F.3d at 843 (citation omitted). And the
issue was resolved “after reasoned consideration,” id., as the analysis compared
California and Arizona’s solicitation and controlled substance laws to determine
which were generic solicitation statutes. We are therefore bound by our prior
conclusion that CPC section 653f(d) is a generic solicitation statute, and not a law
relating to a controlled substance. The BIA erred by concluding otherwise.
Accordingly, for the above reasons, we grant Cifuentes’ petition for review
and remand to the agency for further proceedings consistent with this disposition.
Petition for review GRANTED and REMANDED.
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