Elisabete Ponte v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISABETE ALEXANDRA PONTE, No. 17-71364
Petitioner, Agency No. A036-049-129
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2023**
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,*** District
Judge.
Elisabete Alexandra Ponte, a native and citizen of Portugal, petitions for
review of a decision of the Board of Immigration Appeals (BIA) dismissing an
*
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).
***
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
appeal from an order of an immigration judge (IJ) finding her removable and
ineligible for cancellation of removal. Exercising our jurisdiction under 8 U.S.C.
§ 1252, we deny the petition in part, grant it in part, and remand.
1. The BIA erred in sustaining Ponte’s charges of removability based on her
2003 conviction for attempted manufacture of dangerous drugs in violation of
Arizona Revised Statutes (A.R.S.) § 13-3407(A)(4). Although the amended Notice
to Appear listed three prior convictions, the BIA’s decision that Ponte had
committed an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and a controlled
substance offense (CSO), 8 U.S.C. § 1227(a)(2)(B)(i), was based only on her
conviction for attempted manufacture of dangerous drugs.
The attempted manufacture conviction cannot serve as a basis for
removability. The parties agree that Arizona’s list of dangerous drugs was broader
than the federal controlled substances list at the time Ponte was convicted because
Arizona’s list contained drugs not found on the federal list. See Alvarado v.
Holder, 759 F.3d 1121, 1130 (9th Cir. 2014) (“The government does not dispute
that Arizona’s definition of ‘dangerous drug’ is categorically broader than the
federal definition of ‘controlled substance.’”). Under the modified categorical
approach, Ponte is removable only if the record of her attempted manufacture
conviction shows it was based on a drug contained in the federal controlled
substances list. See Romero-Millan v. Garland, 46 F.4th 1032, 1042–43 (9th Cir.
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2022). We agree with the parties that, based on the relevant limited class of
documents, the record is inconclusive as to the dangerous drug involved in Ponte’s
attempted manufacture conviction, and the BIA erred in relying on that conviction
in finding an aggravated felony and CSO. See Tokatly v. Ashcroft, 371 F.3d 613,
620–21 (9th Cir. 2004).1
2. The Government has not met its burden of showing that either of Ponte’s
remaining convictions under Arizona law—possession of drug paraphernalia and
possession of marijuana—supports a finding of removability. Although the
Government relies on Ponte’s concession to the IJ that she was removable because
of a CSO, the record is unclear as to which conviction forms the basis of the
concession.2 And there is nothing in the record to clarify which of Ponte’s three
convictions the Government relies upon for its CSO charge of removability. The
amended Notice to Appear lists three prior convictions, without specifying which
conviction relates to the CSO charge. Further, the IJ had the opportunity to clarify
whether the agency sustained the CSO charge based on the paraphernalia
conviction or the marijuana conviction, but the IJ simply sustained the CSO charge
1
Because we find that Ponte’s drug trafficking conviction cannot sustain the
aggravated felony charge here, we need not consider whether the BIA erred in
holding that Ponte was not prejudiced by the IJ’s failure to provide a reasoned
analysis for its decision to reconsider and sustain the aggravated felony charge.
2
For instance, if the paraphernalia conviction forms the basis of Ponte’s
concession, then the Government may not be able to rely on the concession
because of an intervening change of law.
3
without reference to any conviction. Moreover, the BIA’s decision does not
expressly rely upon the concession. If “the BIA’s decision cannot be sustained
upon its reasoning, we must remand to allow the agency to decide any issues
remaining in the case.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004)
(per curiam).
3. The BIA did not err, however, in finding Ponte ineligible for cancellation
of removal. For eligibility, Ponte must show that she has not been convicted of an
aggravated felony. 8 U.S.C. § 1229b(a)(3). Ponte has not shown that her
attempted manufacture conviction is not based on a federally controlled substance,
and has thus failed to establish that she has not been convicted of a qualifying
aggravated felony. Pereida v. Wilkinson, 141 S.Ct. 754, 763 (2021).
Accordingly, we DENY the petition for review in part and GRANT it in
part, and remand to the agency to determine which conviction the Government
relies upon as the basis for Ponte’s removal and whether that conviction is a proper
basis for removal. The parties shall bear their own costs.
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