RAGASA - law.hawaii.edu · no. 12-72262 in the united states court of appeals for the ninth circuit crisanto carino ragasa, a037-485-221, petitioner, v. eric h. holder, jr.,

No. 12-72262

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CRISANTO CARINO RAGASA, A037-485-221,

Petitioner,

v.

ERIC H. HOLDER, JR., United States Attorney General,

Respondent.

ON PETITION FOR REVIEW FROM A FINAL ORDER OF THE BOARD OF IMMIGRATION APPEALS

BRIEF FOR RESPONDENT

Stuart F. Delery Acting Assistant Attorney General Ernesto H. Molina, Jr. Assistant Director S. Nicole Nardone Trial Attorney Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington D.C. 20044 (202) 305-7082 Attorneys for Respondent

Case: 12-72262 07/16/2013 RESTRICTED ID: 8704946 DktEntry: 14 Page: 1 of 52

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TABLE OF CONTENTS STATEMENT OF JURISDICTION......................................................................... 1 RESTATEMENT OF THE ISSUES ........................................................................ 3 STATEMENT OF THE CASE AND THE FACTS ................................................. 4 I. BACKGROUND AND PROCEDURAL HISTORY ..................................... 4 II. RAGASA’S MERITS HEARING .................................................................. 7 A. TESTIMONY OF RAGASA’S SON ...................................................... 7 B. TESTIMONY OF RAGASA’S WIFE ..................................................... 8 C. RAGASA’S TESTIMONY ................................................................... 10 III. IMMIGRATION JUDGE DECISION ......................................................... 11 IV. DECISION OF THE BOARD ...................................................................... 15 SUMMARY OF THE ARGUMENT ..................................................................... 21 ARGUMENT .......................................................................................................... 22 I. STANDARD OF REVIEW AND BURDEN OF PROOF ........................... 22 II. THE BOARD CORRECTLY REJECTED RAGASA’S CITIZENSHIP CLAIM ................................................................................ 23 A. The Court’s Authority And The Burden Of Proof ............................... 23 B. Ragasa Did Not Obtain Citizenship Under INA § 322 Because His Adoptive Parents Did Not File A Naturalization Application On His Behalf Before His Eighteenth Birthday ............................................................................. 24


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C. Ragasa Did Not Derive Automatic Citizenship Under Former INA § 301(a)(7) Because He Was Not “Born Of” Parents, One Of Whom Was A U.S. Citizen At The Time Of Ragasa’s Birth ................................................................. 26 D. Ragasa Did Not Derive Automatic Citizenship Under Former INA § 320(a) Because He Was Not Residing With His Adoptive Parents In The United States At The Time Of Their Naturalization ....................................................................................... 30 III. THE BOARD PROPERLY FOUND RAGASA REMOVABLE AS AN ALIEN CONVICTED OF A CONTROLLED SUBSTANCE OFFENSE ............................................................................ 33 A. Statutory Scheme ................................................................................ 33 B. Ragasa Failed To Establish A Realistic Probability That His Hawaii State Conviction Would Apply To Controlled Substances Not Found IN The CSA .................................. 35 IV. RAGASA’S CHALLENGE TO THE AGENCY’S DISCRETIONARY DENIAL OF CANCELLATION OF REMOVAL DOES NOT RAISE A COLORABLE DUE PROCESS CLAIM FOR THIS COURT’S CONSIDERATION .................................................................. 37 CONCLUSION ....................................................................................................... 40 CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

CASES

Alberto Gonzalez v. INS, 215 F.3d 906 (9th Cir. 2000) ....................................................................... 3, 4

Andriasian v. INS,

180 F.3d 1033 (9th Cir. 1999) ....................................................................... 23 Bagot v. Ashcroft,

398 F.3d 252 (3d Cir. 2005) ..................................................................... 24, 25 Berenyi v. INS,

385 U.S. 630 (1967) ....................................................................................... 23 Board of Regents v. Roth,

408 U.S. 564 (1972) ................................................................................... 2, 38 de Jesus Melendez v. Gonzales,

503 F.3d 1019 (9th Cir. 2007) ......................................................................... 2 Franco-Rosendo v. Gonzales,

454 F.3d 965 (9th Cir.2006) .......................................................................... 39 Gameros-Hernandez v. INS,

883 F.2d 839 (9th Cir.1989) .......................................................................... 23 Ghaly v. INS,

58 F.3d 1425 (9th Cir. 1995) ......................................................................... 22 Gonzales v. Duenas-Alvarez,

549 U.S. 183 (2007) ........................................................................... 19, 36, 37 Hughes v. Ashcroft,

255 F.3d 752 (9th Cir. 2001) ......................................................................... 22 Marquez-Marquez v. Gonzales,

455 F.3d 548 (5th Cir. 2006) ......................................................................... 29


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Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 2009) ............................................................. 24, 28, 29

Martinez-Rosas v. Gonzales,

424 F.3d 926 (9th Cir. 2005) ......................................................................... 38 Mielewczyk v. Holder,

575 F.3d 992 (9th Cir. 2009) ......................................................................... 23 Miller v. Albright,

523 U.S. 420 (1998) ................................................................................. 24, 25 Minasyan v. Gonzales,

401 F.3d 1069 (9th Cir. 2005) ....................................................................... 24 Morgan v. Att'y General,

432 F.3d 226 ............................................................................................ 24, 25 Munoz v. Ashcroft,

339 F.3d 950 (9th Cir. 2003) ......................................................................... 38 Ruiz-Vidal v. Gonzales,

473 F.3d 1072 (9th Cir. 2007) ....................................................................... 34 Russello v. United States,

464 U.S. 16 (1983) ............................................................................. 32, 33, 36 Sandoval-Luna v. Mukasey,

526 F.3d 1243 (9th Cir. 2008) ....................................................................... 38 Santos-Lemus v. Mukasey,

542 F.3d 738 (9th Cir. 2008) ......................................................................... 22 Scales v. INS,

232 F.3d 1159 (9th Cir. 2000) ................................................................. 23, 24 Solis-Espinoza v. Gonzales,

401 F.3d 1090 (9th Cir. 2005) ........................................................... 16, 27, 28


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ADMINISTRATIVE DECISIONS In re O-J-O,

21 I. & N. Dec. 381 (BIA 1996) .................................................................... 39 Matter of C-V-T,

22 I. & N. Dec. 7 (BIA 1998) ................................................................. 20, 39 Matter of Hernandez-Ponce,

19 I. & N. Dec. 613 (BIA 1988) .................................................................... 34 Matter of Marin,

16 I. & N. Dec. 581 (BIA 1978) .............................................................. 20, 39 Matter of Mena,

17 I. & N. Dec. 38 (BIA 1979) ...................................................................... 34 Matter of Paulus,

11 I. & N. Dec. 274 (BIA 1965) .................................................................... 34 Matter of Rodriguez-Tejedor,

23 I. &N. Dec. 153 (BIA 2001) ..................................................................... 17 Matter of Sotelo, 23 I. & N. Dec. 201 (BIA 2001) .................................................................... 20


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STATUTES

Immigration and Nationality Act of 1952, as amended:

Section 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) ............................................................................ 13 Section 101(c)(1), 8 U.S.C. § 1101(c)(1) .............................................................................. 17, 32 Section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) ........................................................................... 5 Section 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i) ................................................................ 2, passim Section 237(A)(iii), 8 U.S.C. § 1227(A)(iii) .................................................................................. 15 Section 242(a), 8 U.S.C. § 1252(a) ........................................................................................... 2 Section 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ........................................................................... 2, 37 Section 240(A), 8 U.S.C. § 1229a(A)....................................................................................... 19 Section 242(b)(1), 8 U.S.C. § 1252(b)(1) ...................................................................................... 2 Section 242(b)(2), 8 U.S.C. § 1252(b)(2) ...................................................................................... 2 Section 242(b)(5), 8 U.S.C. § 1252(b)(5) ...................................................................................... 2


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Section 242(b)(5)(A), 8 U.S.C. § 1252(b)(5)(A) ........................................................................... 3, 23 Section 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B) ................................................................................. 3 Section 242(D), 8 U.S.C. § 1252(D) .................................................................................... 2, 37 Section 301(a)(7), 8 U.S.C. § 1401(a)(7) .......................................................................... 3, passim Section 301(g), 8 U.S.C. § 1401(g) ............................................................................ 16, passim Section 309, 8 U.S.C. § 1409 .............................................................................................. 28 Section 309(a)(1), 8 U.S.C. § 1409(a)(1) ..................................................................................... 28 Section 320(a), 8 U.S.C. § 1430(a) .............................................................................. 3, passim Section 320(b), 8 U.S.C. § 1430(b) ................................................................................... 17, 32 Section 321(a), 8 U.S.C. § 1431(a) ......................................................................................... 31 Section 322, 8 U.S.C. § 1433 .................................................................................. 18, 24, 25

OTHER STATUE 21 U.S.C. 802 ..................................................................................................... 33


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REGULATIONS 8 C.F.R. § 1003.1(b)(3) ........................................................................................ 1 8 C.F.R. § 1308.13(c)(14) .................................................................................. 36 8 C.F.R. § 1240.15 ............................................................................................... 1 21 C.F.R. § 1308.13 ........................................................................................... 36


No. 12-72262

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CRISANTO CARINO RAGASA, A037-485-221,

Petitioner,

v.

ERIC H. HOLDER, JR., United States Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

BRIEF FOR RESPONDENT

STATEMENT OF JURISDICTION

Petitioner Crisanto Carino Ragasa (“Petitioner” or “Ragasa”) seeks

review of a decision issued by the Board of Immigration Appeals (“Board” or

“BIA”) on June 19, 2012. See Certified Administrative Record (“A.R.”) at 3-7.

The Board’s jurisdiction arose under 8 C.F.R. § 1003.1(b)(3) and 8 C.F.R.

§ 1240.15 (2013), which grant the Board appellate jurisdiction over decisions of

immigration judges in removal proceedings.


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This Court has jurisdiction to review a final order of the Board pursuant

to Immigration and Nationality Act (“INA”) § 242(a), 8 U.S.C. § 1252(a)

(2012), which confers exclusive jurisdiction on the Courts of Appeals to review

final orders of removal. See 8 U.S.C. § 1252(a).

The petition for review is timely because the Board’s final order of

removal was issued on June 19, 2012, and the petition for review was filed on

July 16, 2012. See 8 U.S.C. § 1252(b)(1) (2012) (a “petition for review must be

filed not later than 30 days after the date of the final order of removal.”). Venue

is proper in this Court because removal proceedings were completed in

Honolulu, Hawaii, which is within this Judicial Circuit. See 8 U.S.C.

§ 1252(b)(2) (2006); A.R. 70.

In the case of an alien ordered removed under 8 U.S.C. § 1227

(a)(2)(B)(i), after a conviction of a controlled substance offense, however, the

Court is limited to reviewing constitutional issues and questions of law. See

8 U.S.C. § 1252(a)(2)(C), (D); de Jesus Melendez v. Gonzales, 503 F.3d 1019,

1023 (9th Cir. 2007). The Court has jurisdiction over a nationality claim under

8 U.S.C. § 1252(b)(5). “If the Court finds, from the pleadings and the

affidavits, that no genuine issue of material fact about the petitioner’s

nationality is presented, the Court shall decide the nationality claim.”


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8 U.S.C. § 1252(b)(5)(A).1 The Court has “jurisdiction to determine whether

[it] has jurisdiction over the merits of the petition for review.” Alberto

Gonzalez v. INS, 215 F.3d 906, 908 (9th Cir. 2000).

RESTATEMENT OF THE ISSUES

1. Whether the Board properly rejected Ragasa’s citizenship claim

where Ragasa, who was born in the Philippines, did not obtain citizenship under

former INA § 322 because his adoptive, naturalized parents never filed a

naturalization application on his behalf prior to his eighteenth birthday;

where Ragasa did not derive automatic citizenship under former INA

§ 301(a)(7) because he was not “born of” parents, one of whom was a U.S.

citizen at the time of his birth; and where Ragasa did not derive citizenship

under former INA § 320(a) because he was not residing with his adoptive

parents in the U.S. at the time of their naturalization.

2. Whether the Board properly found Ragasa removable under

INA § 237(a)(2)(B)(i), as alien convicted of a law relating to a controlled

substance, where Ragasa did not establish a realistic possibility that his Hawaii

state crime fell outside the federal definition of a controlled substance where,

contrary to Ragasa’s assertion, the federal Controlled Substances Act (“CSA”)

1 If the Court finds a genuine issue of material fact about the petitioner’s nationality is presented, the Court shall transfer the proceedings to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim. 8 U.S.C. § 1252(b)(5)(B).


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included the substance “Tiletamine/Zolazepam, (Telazol, 2-(ethylamino)-2-

(thienyl)-cyclohexanone, flupyrazapon) or any salts thereof” and where Ragasa

cited no cases in which Hawaii law criminalized conduct involving a substance

not covered by the CSA.

3. Whether the agency afforded Ragasa due process in considering

his history of drug use in evaluating his application for cancellation of removal

where Ragasa had no liberty interest in the discretionary relief of cancellation

of removal; where the agency was obligated to consider both favorable and

unfavorable factors in assessing Ragasa’s eligibility for relief; where Ragasa

was given a full and fair opportunity to present his case; and where Ragasa

never alleged that his testimony regarding his drug use was not given freely or

was untrue.

STATEMENT OF THE CASE AND THE FACTS

I. BACKGROUND AND PROCEDURAL HISTORY

Petitioner is a native and citizen of the Philippines. A.R. 651. He

entered the United States at Honolulu, Hawaii on or about November 6, 1980,

as an IR-4 immigrant. Id. On July 28, 2008, Petitioner was convicted in the

State of Hawaii, Circuit Court of the Third Circuit, for the offense of Attempted

Promoting a Dangerous Drug in the 1st Degree, in violation of Hawaii Revised

Statutes (“HRS”) 705-500(1)(b) & 712-1241(b)(ii). Id., A.R. 474.


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On February 17, 2011, the Department of Homeland Security (“DHS”)

filed a Notice to Appear against Ragasa, charging him with removability under

section 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”),

8 U.S.C. § 1227(a)(2)(B)(i), as alien who, at any time after admission, had been

convicted of a violation of a law or regulation of a State relating to a controlled

substance and under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as

an alien convicted of an aggravated felony as defined in INA § 101(a)(43)(B).

A.R. 651-53. The factual allegations of the NTA alleged that: (1) Petitioner

was not a citizen or national of the United States; (2) Petitioner was a native and

citizen of the Philippines; (3) Petitioner was admitted to the United States at

Honolulu, Hawaii, on or about November 6, 1980 as a IR-4 immigrant; and

(4) Petitioner was, on July 28, 2008, convicted in the State of Hawaii, Circuit

Court of the Third Circuit, for the offense of Attempted Promoting a Dangerous

Drug in the 1st Degree, to wit: Methamphetamine, in violation of HRS 705-

500(1)(b) & 712-1241(1)(b)(ii). A.R. 651.

On September 22, 2011, Ragasa appeared, with counsel, before an

immigration judge. A.R. 94. Ragasa admitted the third allegation of his NTA,

but denied the first, second and fourth allegations. A.R. 94-95. He denied the

first and second allegations on the grounds that he was a United States (“U.S.”)

citizen, as he derived citizenship through his adopted parents. A.R. 95-96. He


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denied the fourth allegation on the basis that he was not convicted of an offense

involving methamphetamine, but was convicted of a violation of attempted

promoting of a dangerous drug in the first degree under H.R.S. 705-500(1) (b)

and 712-1241(i)(b), which did not include methamphetamine. A.R. 131. The

immigration judge rescheduled Ragasa’s hearing so his counsel could produce

documentation of his citizenship. A.R. 107-08.

On September 27, 2011, upon consideration of Ragasa’s evidence, the

immigration judge sustained the first and second allegations of the NTA. A.R.

130-31. On November 17, 2011, the immigration sustained the fourth

allegation. A.R. 183. The immigration judge did not sustain Ragasa’s removal

under INA § 237(a)(2)(A)(iii), finding that DHS failed to establish by clear and

convincing evidence that Petitioner was removable on this ground. A.R. 74,

183. The immigration judge found Ragasa removable under INA § 237

(a)(2)(B)(i), as an alien convicted of a law relating to a controlled substance.

A.R. 74. During the November 17, 2011 hearing, Petitioner indicated that he

would be seeking relief from removal in the form of cancellation of removal

and would seek a waiver of relief for his criminal charges. A.R. 184.

Following a merits hearing on January 31, 2012, the immigration judge

denied Ragasa’s application for cancellation of removal. A.R. 70-81. The

immigration judge also denied Petitioner voluntary departure and ordered him


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removed from the United States. A.R. 81. On March 1, 2012, Petitioner filed

an appeal with the Board. A.R. 8-64. On July 19, 2012, the Board issued an

order affirming the immigration judge’s decision and dismissing the appeal.

A.R. 3-7. The instant petition for review followed.

II. RAGASA’S MERITS HEARING

On January 31, 2012, Petitioner and two witnesses appeared for a merits

hearing before an immigration judge and provided the following testimony.

A. TESTIMONY OF RAGASA’S SON

Petitioner’s son, Byron Ragasa (“Byron”), testified that he was born in

Hilo, Hawaii, in 1989. A.R. 215-16. His mother, Remy Ramonez Ragasa, died

when he was six years old. A.R. 216. Byron said Ragasa was involved in his

life and was a hard-working and dedicated father. A.R. 216-17. Ragasa

attended Byron’s drop-out prevention programs and ensured his graduation

from high school. A.R. 216-17. At the time of the hearing, Byron had a job as

a cashier at Walmart. A.R 217. Byron said his father’s deportation would

greatly affect him because he lost his mother and doesn’t have other immediate

relatives on the big island. A.R. 217. Byron has an aunt in Washington and an

uncle that lives on Kauai. Id. His main concern with his father’s deportation

was his “concern for his younger siblings, who would “[have to] grow[] up

with[out] [a] father figure.” A.R. 218.


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On cross-examination, Byron said that his father’s illegal behavior has

caused the family problems because, due to his incarceration, his younger

siblings “[were] missing him.” A.R. 222. Byron believed that his father should

be allowed to stay in the United States, despite his conviction for selling drugs.

A.R. 220-21. Byron no longer lives with his father; he moved out when he was

eighteen. A.R. 224. Byron never visited his father in jail because he could not

afford a plane ticket to see him. A.R. 225. Byron explained that his father was

incarcerated in Oahu and in Arizona. A.R. 225. He last saw his father on July

22, 2008. A.R. 225.

B. TESTIMONY OF RAGASA’S WIFE

Petitioner’s wife, Delia Acosta Ragasa (“Delia”), provided the following

testimony. Delia is a U.S. citizen and resides in Hilo, Hawaii. A.R. 229. She

married Ragasa in 1998. A.R. 229. Delia works as a nurse at the Hilo Medical

Center. A.R. 229. She and Ragasa have three U.S. citizen children: a twelve-

year-old girl, and twin five-year-old boys. A.R. 229-30. Delia’s parents, who

are in their seventies, also live with them. A.R. 229-230. Delia said all three of

her children suffer from chronic asthma and frequently need nebulizer

treatments. A.R. 230. One of the boys had a mass in his leg which caused him

pain. A.R. 230. Both boys had been assessed with speech problems. A.R. 230.


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Delia’s father suffered liver, prostate and respiratory problems which required

frequent medical visits. A.R. 230.

Delia believed Ragasa became involved with drugs because he was

depressed about his first wife’s death, the death of his parents, and the injury to

his wrist. A.R. 232. Delia said that, as a result of his wrist injury in 2006,

Ragasa was unable to maintain his job as a mechanic. A.R. 232-33. Delia

believed Ragasa suffered from depression at that time, because he was quiet,

distant and “feeling hopeless.” A.R. 233.

Delia witnessed Ragasa’s criminal proceedings and said he was very

cooperative with the authorities. A.R. 234. Delia believed Ragasa’s conviction

changed him; he started spending more time with their kids and going to

church. A.R. 235. Delia was in constant contact with her husband during his

incarceration. A.R. 235. She said it would be very hard on her if her husband

was deported because she would have to take care of the children physically

and financially by herself. A.R. 236. Delia said she would not go to the

Philippines with her husband if he was deported. A.R. 237. The only family

they have in the Philippines is Ragasa’s biological mother. A.R. 237.

On cross-examination, Delia conceded that her husband was incarcerated

in July 2008, so she had been raising her children alone for three-and-one-half

years. A.R. 238. Delia never knew that Ragasa was involved with drugs until


10

he was arrested. A.R. 240. Delia believed her husband should be allowed to

remain in the United States because his conviction was his first offense and he

was very remorseful. A.R. 244-45. During Ragasa’s incarceration, Delia

supported her household with her salary and her parents’ social security

income. A.R.246-47. Ragasa and Delia own their home; they have three cars.

A.R. 247. Delia did not believe she could easily find a job in the Philippines, as

they had no demand for nurses. A.R. 248.

C. RAGASA’S TESTIMONY

Ragasa provided the following testimony during his merits hearing. He

was born in the Philippines in 1966 and came to the United States in 1980 at the

age of fourteen. A.R. 257. Ragasa was adopted by his uncle and aunt,

Alejandro Ragasa and Cleofe Ragasa, who were residing in Hawaii. A.R. 257.

Ragasa attended high school in Hawaii and later studied mechanics at a local

community college. Id. Ragasa worked as a mechanic for several years; he

then worked in a hotel and at Goodyear Tire. A.R. 258-59. He had a son with

his first wife; his first wife died in October 1995. A.R. 259. He remarried in

July 1997. A.R. 259. Ragasa started using drugs when his first wife died, as

his “life was all hopeless.” A.R. 260. If Ragasa was granted cancellation of

removal, he would change his life; he would look for work and try to help his


11

wife pay the bills. A.R. 261. He would also never use drugs again if he was

granted relief. A.R. 261-62.

On cross-examination, Ragasa conceded that he used drugs for twelve

years, from 1995 until his conviction in 2007. A.R. 263. He mainly used

marijuana, cocaine and ice (also known as methamphetamine). A.R. 263.

Ragasa said he used drugs during his second marriage but not “continuously”

during this period. A.R. 264. Ragasa conceded that he hid his drug use from

his wife and family because he knew it was “bad using drugs.” A.R. 264. He

did not sell drugs for money; he sold to support his drug habit. A.R. 267.

Ragasa conceded that he was using methamphetamine at the time he was

arrested. A.R. 267-68. He said he was caught the first time he tried selling

drugs (which resulted in his conviction) and never sold again. A.R. 269.

Ragasa believed he should be granted relief for the sake of his family and

because his behavior was “a mistake.” A.R. 270. He said he never would have

“done these things” had he known he could be deported for them. A.R. 270.

III. IMMIGRATION JUDGE DECISION

On January 31, 2012, following a merits hearing, the immigration judge

issued an order denying Ragasa’s application for cancellation of removal and

for voluntary departure. A.R. 70-81.


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The immigration judge noted that Ragasa alleged that he was a United

States citizen. A.R. 72. The immigration judge also noted that DHS denied

Ragasa’s application for citizenship, submitted February 15, 2011, pursuant

INA § 341, alleging citizenship through his adoptive parents. Id. The

immigration judge observed that the record showed that Petitioner immigrated

to the United States on November 6, 1980, as an IR-4 immigrant, as a child to

be adopted by United States citizens in the United States. Id. The immigration

judge noted that Petitioner was adopted on March 2, 1981, by parents who were

naturalized United States citizens prior to his adoption. A.R. 72.

The immigration judge noted that, at the time of Petitioner’s adoption,

INA § 320 required that an application for a certificate for citizenship must be

filed prior to Petitioner’s eighteenth birthday. A.R. 73. The immigration judge

observed that the record did not contain any evidence that Petitioner’s adoptive

parents ever submitted this application on his behalf. A.R. 72-73. The

immigration judge noted that, although Petitioner would have automatically

become a citizen under the Child Citizenship Act of 2000 if he was under

eighteen years old at time it became effective on February 27, 2001, Petitioner

was thirty-four years old at that time. A.R. 73. Therefore, that Act did not

apply to him. A.R. 73. The immigration judge concluded that Petitioner had

not presented sufficient efficient to support of his claim of U.S. citizenship.


13

A.R. 73. Thus, the immigration judge found that Petitioner was not a citizen or

national of the United States, and that Petitioner was a native and citizen of the

Philippines. A.R. 73.

After considering the arguments of DHS and the Petitioner, the

immigration judge also sustained the charge of removal under

INA § 237(a)(2)(B)(i), alleging that Petitioner had been convicted of a violation

of a law relating to a controlled substance. A.R. 74. The immigration judge

found that DHS failed to establish by clear and convincing evidence that

Petitioner was removable under INA § 237(a)(2)(A)(iii), as an alien convicted

of an aggravated felony as defined in INA § 101(a)(43)(B). A.R. 74.

With regard to Ragasa’s application for cancellation of removal as a legal

permanent resident, the immigration judge found that Petitioner had been

admitted for permanent residence for not less than five years and had resided in

the United States continuously for seven years after having being admitted in

any status. A.R. 76. The immigration judge also found that Petitioner had not

been convicted of an aggravated felony and was statutorily eligible to apply for

cancellation of removal. A.R. 75.

The immigration judge next considered Petitioner’s application for

cancellation of removal as a matter of discretion. A.R. 76. The immigration

judge noted that Petitioner had four U.S. citizen children, but had few family


14

members in the Philippines. A.R. 76. The immigration judge observed that

Petitioner came to the U.S. at fourteen and has been here since 1980. A.R. 77.

He noted that Petitioner has a home in the U.S. and three vehicles; and that he

and his wife have a checking account, savings account and Petitioner’s wife has

retirement account through her employer. A.R. 77. The immigration judge

discussed the fact that Petitioner had been detained for the past three years and

had little contact with his children. A.R. 77. The immigration judge noted that

Petitioner’s family testified and demonstrated that they have a strong familial

relationship with Petitioner. Id. The immigration judge also considered

Petitioner’s consistent work history and that his instant conviction was his only

interaction with law enforcement in the U.S. A.R. 77.

The immigration judge also considered “the nature and circumstances of

the grounds of removal.” A.R. 78. He noted that Petitioner was charged with a

crime under HRS § 712-1241, which “specifically exclude[d] from its definition

the use . . . of methamphetamine.” A.R. 78. The immigration judge noted

Petitioner’s testimony that he used methamphetamine, cocaine and marijuana

“off and on” since 1995, and that his drug distribution grew out of his need to

support his drug habit. A.R. 78. The immigration judge observed that it was

unclear “how many times or how often [Petitioner] utilized drugs,” but

commented that it was “clear that [Petitioner] had utilized marijuana, cocaine,


15

and methamphetamine,” noting that methamphetamine was “a very serious drug

with highly-addictive qualities.” A.R. 79. The immigration judge commented

that “the issue or matter of drug use and drug distribution [was] a very serious

matter in the United States.” A.R. 79. He also noted the testimony of

Petitioner’s wife that, although their family is very close, Petitioner kept his

drug use hidden from them for years. A.R. 78-79. After evaluating each of

these factors, the immigration judge concluded “that it could not find . . . that

the grant of relief would be in the best interest of [the] country,” which he noted

“is a requirement for the grant of cancellation of removal for certain legal

permanent residents.” A.R. 80. Thus, the immigration judge concluded that he

would not grant cancellation of removal as a matter of discretion. A.R. 81. The

immigration judge also denied Petitioner voluntary departure as a matter of

discretion. A.R. 81.

IV. DECISION OF THE BOARD

On June 19, 2012, the Board issued a decision dismissing Ragasa’s

appeal. A.R. 3. The Board noted Ragasa’s challenges to the immigration

judge’s determination that he had not established U.S. citizenship, and his

argument that he was not removable under INA § 237(a)(2)(B)(i) and (A)(iii)

because the Hawaii controlled substances statute under which he was convicted


16

included controlled substances which were not criminalized under the federal

Controlled Substances Act (“CSA”). A.R. 3.

The Board observed that Ragasa did not challenge the finding that his

adoptive parents failed to submit an application for a certificate of citizenship

on his behalf. A.R. 4. Rather, Petitioner argued that “he acquired citizenship

under former [INA §] 301(a)(7), now designated [INA §] 301(g).” A.R. 4. The

Board noted Petitioner’s argument that his case was analogous to Solis-

Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), and Scales v. INS, 232

F.3d 1159 (9th Cir. 2000), in which the Ninth Circuit concluded that pursuant to

INA § 301(g) a child can acquire citizenship at birth through a person who is

neither a biological nor an adoptive parent. A.R. 4. The Board determined,

however, that these cases were distinguishable from Ragasa’s case, noting that

“the individuals seeking citizenship in Scales and Solis-Espinoza were

biological children of the spouse of the stepparent through whom citizenship

was acquired.” A.R. 4. “Here, in contrast,” the Board concluded ,“[Petitioner]

[was] the adopted child of naturalized citizens.” A.R. 5. The Board observed

that section 301(g) “expressly define[d] nationals and citizens at birth as

‘person[s] born . . . of parents one of whom is an alien, and the other a citizen of

the United States . . .” Id. The Board concluded that “[n]othing in the language

of [INA 301(g)] indicate[d] that the provision [applied] to an adopted child.”


17

A.R. 5, citing Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 155 (BIA 2001) .

Thus, the Board rejected Petitioner’s argument that he acquired citizenship

under INA § 301(g). A.R.5.

The Board also rejected Petitioner’s argument that he was a citizen by

operation of former INA § 320, entitled “Children born outside United States of

one alien and one citizen parent,” because Ragasa was not residing in the

United States, as required by the statute, at the time of his parents’

naturalization. A.R. 5. The Board also rejected Petitioner’s argument that he

was a “child” as contemplated under former 320(a). A.R. 5. The Board

observed that, although a “child” as defined under INA § 101(c)(1) during the

relevant time period “may [have] described [Petitioner],” “Congress crafted

distinct additional requirements for conferring automatic citizenship on children

like [Petitioner] who were adopted.” A.R. 6. The Board explained that “[i]f

Congress had intended [Petitioner] to derive citizenship under [INA §] 320(a),

[INA §] 320(b) would be superfluous.” A.R. 6. Further, the Board found “no

basis for interpreting the statute as exempting children adopted before their

sixteenth birthday or adopted outside the United States from satisfying [INA

§ 320(b)] in order to obtain citizenship.” A.R. 6. Thus, the Board determined

that Petitioner did not derive automatic citizenship under former INA § 320. Id.


18

The Board concluded that “the statutory scheme in place prior to

[Petitioner’s] eighteenth birthday provided that adoptive parents of children

who did not acquire citizenship automatically under [INA § 320] may apply for

a certificate of citizenship.” A.R. 6, citing INA § 322. The Board concluded

that, because Petitioner’s adoptive parents did not apply for a certificate of

citizenship on his behalf before he reached the age of eighteen, Petitioner did

not establish U.S. citizenship. A.R. 6.

The Board also found no merit to Petitioner’s argument that he was not

convicted of a law relating to a controlled substance and, thus, was not

removable under INA § 237(a)(2)(B)(i). The Board outlined Petitioner’s

argument that because the conviction documents did not identify the controlled

substance involved in his offense, and the list of substances criminalized under

the Hawaii drug statutes included “Tiletamine/Zolazepam, (Telazol,

2-(ethylamino)-2-(thienyl)-cyclohexanone, flupyrazapon) or any salts thereof,”

a substance not listed in the federal CSA, he did not sustain a conviction related

to a controlled substance. A.R. 4. The Board rejected this argument for two

reasons. First, it found that “Tiletamine and zolazepam or any salt thereof,”

further identified with trade names of, among others, “Telazol, 2-(ethylamino)-

2-(thienyl)-cyclohexanone and flupyrazapon,” was included in Schedule III of

the CSA. A.R. 6. Second, the Board observed that even if the HRS and CSA


19

controlled substance lists were not coextensive, the Supreme Court, in Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), “instructed that to ‘find that a

state statute creates a crime outside the generic definition of a listed crime in a

federal statute requires more than the application of legal imagination to a

state’s statute’s language. It requires a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls outside the

generic definition of a crime.’” A.R. 6. The Board found that “[w]hile

[Petitioner’s] proposition of a hypothetical crime involving a controlled

substance proscribed under the Hawaii drug statute but not included in the CSA

is within the realm of possibility, he has not demonstrated a realistic probability

that prosecution for such an offense [was] likely.” A.R. 6. The Board found

that Petitioner could have shown such a realistic probability if he established

“that the statute was so applied in his own case” or in other cases, but he

“presented no such evidence.” A.R. 6. The Board concluded that it was “not

inclined to find on the basis of this purely speculative hypothesis that

[Petitioner] was not convicted of a violation of a state law relating to a

controlled substance.” A.R. 6.

The Board also found no merit to Petitioner’s argument that the

immigration judge erred in considering his testimony concerning his prior drug

use in denying his application for cancellation of removal under INA § 240(A)


20

in the exercise of discretion. A.R. 7. Petitioner argued it was unfair for the

agency to consider this evidence because he was never convicted of his prior

drug use and he would not have mentioned it had he known it would negatively

affect his application for cancellation of removal. A.R. 7. The Board observed,

however, that Petitioner bore the burden of establishing his eligibility for

cancellation of removal as a matter of discretion. A.R. 7, citing Matter of

Sotelo, 23 I. & N. Dec. 201 (BIA 2001); Matter of C-V-T-, 22 I. & N. Dec. 7

(BIA 1998). The Board found that according to the framework set forth in

Matter of Marin, 16 I. & N. Dec. 581, 582-83 (BIA 1978), “in exercising

discretion an immigration judge must review the record in its entirety and

balance the social and humane considerations presented in an alien’s favor

against the adverse factors evidencing his undesirability as a permanent

resident.” A.R. 7, citing Matter of C-V-T-, 22 I. & N. Dec. at 11. The Board

observed that Petitioner conceded that he testified under oath and he did not

dispute that his testimony about using drugs was truthful. A.R. 7. Thus, the

Board concluded that “the immigration judge properly considered his

statements of record” and “the fact that [Petitioner] now regrets being

forthcoming does not mean that the immigration judge abused his discretion in

weighing the illegal drug use and related activity as a factor in the discretionary

determination.” A.R. 7.


21

SUMMARY OF THE ARGUMENT

The Board properly rejected Ragasa’s citizenship claim because, under

the statute in effect at the time of Ragasa’s adoption, Ragasa’s parents were

required to file a naturalization application on Ragasa’s behalf prior to his

eighteenth birthday. As Ragasa conceded that his adoptive parents never filed

this application on his behalf, the Board properly found he did not obtain

citizenship under former INA § 322. The Board also properly found that

Ragasa did not derive automatic citizenship under former INA § 301(a)(7),

because he was not “born of” parents, one of whom was a U.S. citizen at the

time of his birth. The Board also correctly found that Ragasa did not derive

automatic citizenship under former INA 320(a), because he was not residing

with his adoptive parents in the United States at the time of their naturalization.

The Board properly found Ragasa removable under INA

§ 237(a)(2)(B)(i), as an alien convicted of a law relating to a controlled

substance. Ragasa did not establish a realistic possibility that his Hawaii state

crime fell outside the federal definition of a controlled substance. Contrary to

Ragasa’s allegation, the federal CSA included the substance

“Tiletamine/Zolazepam, (Telazol, 2-(ethylamino)-2-(thienyl)-cyclohexanone,

flupyrazapon) or any salts thereof.” Further, Ragasa cited no cases in which


22

Hawaii law criminalized conduct involving a substance not covered by the

CSA.

The agency afforded Ragasa due process in considering his history of

drug use in evaluating his application for cancellation of removal. Petitioner

had no liberty interest in the discretionary relief of cancellation of removal.

Further, the agency is permitted to weigh both the favorable and unfavorable

factors in assessing Ragasa’s eligibility for relief. The record shows that

Ragasa was given a full and fair opportunity to present his case, and Ragasa

never alleged that his testimony regarding his history of drug use was not given

freely or was untrue.

ARGUMENT I. STANDARD OF REVIEW AND BURDEN OF PROOF Where, as here, the Board conducts a de novo review of the record, the

Court’s review is limited to the decision of the Board, except to the extent that

the immigration judge’s decision is expressly adopted by the Board. See Ghaly

v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). The Board’s legal interpretations

of the INA are reviewed de novo, but with deference to the agency’s

construction. Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008)

The Court reviews de novo the legal questions involving a claim to citizenship.

See Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001). Whether a


23

conviction under state law is a controlled substance offense is a legal question

subject to de novo review. Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir.

2009). Factual determinations of the Board are reviewed under the substantial

evidence standard, and are upheld unless the evidence compels a contrary

conclusion. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir. 1999).

The government must prove by “clear, unequivocal, and convincing

evidence that the facts alleged as grounds of [removability] are true.” Gameros-

Hernandez v. INS, 883 F.2d 839, 841 (9th Cir.1989). “Evidence of foreign

birth. . . gives rise to a rebuttable presumption of alienage, and the burden then

shifts to the petitioner to prove citizenship.” Scales v. INS, 232 F.3d at 1163.

Because citizenship confers “privileges and benefits,” that “once granted,

cannot lightly be taken away,” any “doubts [about Petitioner’s citizenship]

should be resolved in favor of the United States and against” the petitioner.

Berenyi v. INS, 385 U.S. 630, 637 (1967).

II. THE BOARD CORRECTLY REJECTED RAGASA’S CITIZENSHIP CLAIM A. The Court’s Authority And The Burden Of Proof The Court should find that the agency correctly rejected Ragasa’s

U.S. citizenship claim, as the record shows that there exists no genuine issue of

material fact about Petitioner’s nationality. See 8 U.S.C. § 1252(b)(5)(A).


24

Because Ragasa was born in the Philippines, he bore the burden of

establishing his claim to U.S. citizenship. A.R. 651. “There are ‘two sources of

citizenship, and two only: birth and naturalization.’” Martinez-Madera v.

Holder, 559 F.3d 937, 940 (9th Cir. 2009), citing Miller v. Albright, 523 U.S.

420, 423 (1998). If a person is not born in the United States, he or she can

acquire citizenship at birth only as provided by Congress. Scales v. INS, 232

F.3d at 1164, citing Miller v. Albright, 523 U.S. 420, 423 (1998). The law

applicable is that in effect at the time the critical events giving rise to the claim

for derivative citizenship occurred. Morgan v. Att’y General, 432 F.3d 226,

230, citing Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). The

relevant times are the date of the child’s birth, the time of the child’s entry into

the United States, and the date of the parent’s naturalization. See Bagot v.

Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005) (listing “relevant times” for

derivative citizenship claims).

B. Ragasa Did Not Obtain Citizenship Under INA § 322 Because His Adoptive Parents Did Not File A Naturalization Application On His Behalf Before His Eighteenth Birthday Under the version of the INA in effect when Ragasa was brought to the

United States in 1980, and adopted in 1981, Ragasa’s adoptive parents were

required to apply for United States citizenship on his behalf while he was a

minor. See INA § 322, 8 U.S.C. § 1433 (1986).


25

In 1980 and 1981, INA § 322 provided:

Children born outside of the United States: (a) Naturalization on petition of citizen parents; requirements A child born outside the United States, one or both of whose parents is at the time of petitioning for the naturalization of the child, a citizen of the United States, either by birth or naturalization, may be naturalized if under the age of eighteen years and not otherwise disqualified from becoming a citizen . . . , and if residing permanently in the United States, with the citizen parent, pursuant to a lawful admission of permanent residence, on the petition of such citizen parent, upon compliance with all the provisions of this subchapter, except that no particular period of residence or physical presence in the United States shall be required . . . . (b) Adopted children Subsection (a) of this section shall apply to a child adopted while under the age of sixteen years who is residing in the United States, in the custody of the adoptive parent or parents, pursuant to a lawful admission for permanent residence.

INA § 322, 8 U.S.C. § 1433 (1980).

The record shows, and Petitioner does not dispute, that his parents did not

file a naturalization application on his behalf prior to his eighteenth birthday.

See A.R. 72-73 and Pet’s Br. at 12-13. Thus, the agency properly concluded

that Ragasa did not became a United States citizen pursuant to INA § 322.

A.R. 6.


26

C. Ragasa Did Not Derive Automatic Citizenship Under Former INA § 301(a)(7) Because He Was Not “Born Of” Parents, One Of Whom Was A U.S. Citizen At The Time Of Ragasa’s Birth Ragasa argues that the agency erred in finding he did not obtain

automatic citizenship under former INA § 301(a)(7), 8 U.S.C. § 1401(a)(7)

(now codified at INA § 301(g); 8 U.S.C. § 1401(g)). At Petitioner’s birth in

1966, INA § 301 provided, in relevant part:

Nationals and citizens of United States at birth

(a) The following shall be nationals and citizens of the United States at birth:

* * *

(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; Provided . . . [stating other ways citizen parent physical presence requirement could be satisfied in relation to certain governmental service] . . . This provision shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date.

INA § 301(a)(7).2

2 At the time of Ragasa’s adoption in 1980, INA § 301(a)(7) had been amended (Pub. L. 95-432, October 10, 1978) by eliminating the “(a)” before “The


27

The Board properly found that former INA § 301(a)(7) did not apply to

adopted children, like Ragasa. A.R. 5. As the Board found, the plain language

of former INA § 301(a)(7) defined nationals and citizens at birth as “person[s]

born . . . of parents one of whom is an alien, and the other a citizen of the

United States.” A.R. 5. As the Board correctly found, nothing in this provision

indicated that it applied adopted children. A.R. 5.

As the Board observed, Petitioner’s case was readily distinguishable from

this Court’s holdings in Scales v. INS, 232 F.3d 1159 (9th Cir. 2000), and Solis-

Espinosa v. Gonzales, 401 F.3d 1090 (9th Cir. 2005). In Scales v. INS, this

Court found that the language “born of parents” in former INA § 301(g)

required only that a person be born in wedlock; it did not require a blood

relationship between the person claiming citizenship and the citizen parent.

232 F.3d 1159, 1164 (9th Cir. 2000). The Court concluded that Scales fell

under former INA § 301(g), even though he did not have a blood relationship

with his U.S. citizen father, because he was born during the marriage of his U.S.

citizen father and his biological Philippine citizen mother and raised as their

child. Id. Importantly, the Court distinguished Scales case from a case where a

following” and redesignating each of the paragraphs formerly designated (1) through (7) as (a) through (g), and continued with the same seven paragraphs which were formerly designated as (1) through (7), but without any other change in the text of any such paragraphs. Thus, what was formerly section 1401(a)(7) became section 1401(g). However, the substance of the section remained substantially the same.


28

petitioner was “illegitimate,” or born out of wedlock, noting that “the INA does

expressly require a blood relationship between the person claiming citizenship

and a citizen father, if the person is born out of wedlock.” Id. at 1164, citing

8 U.S.C. § 1409(a)(1) (emphasis added).

In Solis-Espinosa v. Gonzales, this Court similarly found that the

biological child of two non-citizen Mexicans, who was born into a marriage

between a U.S. citizen stepmother and his biological father, fell under former

INA § 301(g). 401 F.3d 1090, 1093-94. The Court noted that the petitioner in

Solis-Espinosa was abandoned by his biological mother, but that the “blood

requirement” in 8 U.S.C. § 1409 did not apply to him as he was not

“illegitimate” but was born into a legitimate marriage between his U.S. citizen

stepmother and his biological father, and raised as their child since birth. Id.

The Court’s holding in Martinez-Madera v. Holder, 559 F.3d 937 (9th

Cir. 2009), makes clear that Scales and Solis-Espinosa are not supportive of

Ragasa’s claims. The petitioner in Martinez-Madera was a born in Mexico in

1953 of Mexican parents. Id. at 938. Six months after Petitioner’s birth, his

mother entered a relationship with a U.S. citizen. Id. The couple married

several years later and moved to the United States, and Petitioner’s mother

naturalized soon thereafter. Id. The Court noted that Scales and Solis-

Espinosa, upon which petitioner relied, were “manifestly distinguishable and


29

thus not controlling” in Martinez-Madera’s case. Id. at 941. The Court found

in those cases, “the person claiming citizenship was born into a marital

relationship between a citizen and an alien. In contrast, Martinez-Madera was

born in Mexico of unwed Mexican parents, neither of whom was married to a

United States citizen at the time of Martinez-Madera’s birth.” Id. at 941.

The Martinez-Madera Court also voiced agreement with the finding of

the Fifth Circuit in Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir.

2006) “that a person born of unwed Mexican parents in Mexico did not become

a United States citizen by virtue of her later adoption by a United States citizen,

who was married to neither of her parents at birth.” 559 F.3d at 941. In

Marquez-Marquez, the Fifth Circuit found that “Section 301 [did] not address

citizenship through adoption, and its text explicitly addresse[d] only citizenship

‘at birth.’” 455 F.3d at 556. “Moreover,” the Court held, “section 301(g)

require[d] that the ‘person’ be ‘born . . . of’ a citizen parent, obviously

reflecting a relationship when ‘born.’” Id. at 557 (emphasis in original).

As the Board and this Court have observed, Scales and Solis-Espinosa

involved children born into marriages between a U.S. citizen step-parent and a

biological foreign parent. A.R. 5. The children in those cases were born into

citizenship; they did not acquire citizenship later, like Ragasa, through

naturalized parents. Although this Court found former INA § 301(g) did not


30

require a blood relationship between the U.S. citizen parent and the child, it

found the law clearly required the child be “born in wedlock” in order to

acquire citizenship at birth from the U.S. citizen parent. Id. These cases are

clearly distinguishable from Petitioner’s case, and they do not suggest that

former INA § 301(g) would apply to a child, like Ragasa, who was born in a

foreign county of alien parents -- but who was adopted many years later by

U.S. citizen parents who had previously naturalized.

D. Ragasa Did Not Derive Automatic Citizenship Under Former INA 320(a) Because He Was Not Residing With His Adoptive Parents In The United States At The Time Of Their Naturalization The Board also properly found that Ragasa did not obtain citizenship by

operation of former INA § 320. Petitioner was born in 1969; he entered the

United States in 1980 and was adopted in 1981. A.R 72, 257. Ragasa’s

adoptive parents were both naturalized prior to Ragasa’s adoption. Pet’s Br. at

17. At all of these times, a former version of Section 320 was in effect, and

provided:

Children born outside United States of one alien and one citizen parent; conditions for automatic citizenship (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


31

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 sixteen 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 sixteen years. (b) Subsection (a) of this section shall apply to an adopted child only if the child 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 resident.

INA § 320, 8 U.S.C. § 1431(a) (1976).

The Board properly found that former INA § 320 did not apply to grant

Ragasa automatic citizenship. First, as the Board found (and as Petitioner

concedes), Petitioner’s adoptive parents naturalized prior to his arrival in the

United States in 1980. Pet’s Br. at 17. Therefore, Petitioner was not “residing

in the United States at the time of naturalization of his adoptive parent[s];” nor

was he, at that time, “in the custody of his adoptive parents.” Thus, the Board

properly concluded that “according to the plain language of prior section

320(b), [Ragasa] did not derive citizenship under that provision.” A.R. 5.

The Board also addressed Petitioner’s argument that he was a “child,” as

contemplated by former section 320(a) and, therefore, attained citizenship under


32

the conditions set forth in that subsection. The Board observed that at the

relevant time period a “child” was defined as an:

Unmarried person under twenty-one years of age and include[ed] a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere, and, except as otherwise provided in sections 1431 to 1434 of this title, a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of sixteen years, and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.

INA § 101(c)(1), 8 U.S.C. § 1101(c)(1) (1976). A.R. 5-6. The Board correctly

observed that “while [that] definition may [have] describe[d] [Ragasa],

Congress crafted distinct additional requirements for conferring automatic

citizenship on children like [Ragasa] who were adopted.” A.R. 6. The Board

reasonably found that “[i]f Congress had intended [Ragasa] to derive

citizenship under section 320(a), section 320(b) would be superfluous.” A.R. 6.

Indeed, this Court has noted that “[w]here Congress includes particular

language in one section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” Scales v. INS, 232 F.3d 1159, 1165 (9th

Cir. 2000), citing Russello v. United States, 464 U.S. 16, 23 (1983). Thus, the

Board reasonably found no basis for Ragasa’s argument that INA § 101(c)(1)


33

should be interpreted as exempting children adopted prior to their sixteenth

birthday or adopted outside the United States from satisfying the requirements

of INA § 320(b) in order to obtain citizenship. Id.

In light of the foregoing, the agency properly determined that “[t]he

statutory scheme in place prior to [Ragasa’s] eighteenth birthday provided that

adoptive parents of children who did not acquire citizenship automatically

under [INA §] 320 . . . may apply for a certificate of citizenship.” A.R. 6. The

agency correctly concluded that because Ragasa did not dispute that his parents

never applied for a certificate of citizenship on his behalf prior to his eighteenth

birthday, he failed to establish United States citizenship. A.R. 6.

III. THE BOARD PROPERLY FOUND RAGASA REMOVABLE AS AN ALIEN CONVICTED OF A CONTROLLED SUBSTANCE OFFENSE A. Statutory Scheme

Ragasa was charged with removability on the basis of his conviction of a

controlled substance offense. INA § 237(a)(2)(B)(i);8 U.S.C.

§ 1227(a)(2)(B)(i). That section provides:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21 [the Controlled Substances Act (21 U.S.C. 802)]), other than a single offense involving possession for one's


34

own use of 30 grams or less of marijuana is deportable.

INA § 237(a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(B)(i); see also 21 U.S.C.

§§ 802(6) and 812(c) (defining “controlled substance”).

This Court has found that “the plain language of this statute requires the

government to prove that the substance underlying an alien’s state law

conviction for possession is one that is covered by Section 102 of the CSA.”

Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir. 2007); see also Matter of

Paulus, 11 I. & N. Dec. 274, 274-75 (BIA 1965); Matter of Mena, 17 I. & N.

Dec. 38, 39 (BIA 1979); Matter of Hernandez-Ponce, 19 I. & N. Dec. 613, 616

(BIA 1988). Thus, in order to prove removability, Ragasa’s conviction must be

for possession of a substance that is not only listed as a controlled substance

under Hawaii law, but also contained in the federal schedules of the CSA. See

Ruiz-Vidal, 473 F.3d at 1077. Although this Court noted that, it has broadly

construed the “relating to” language in 8 U.S.C. § 1227(a)(2)(B)(i), it has found

that “where a particular substance is at issue,” the section “requires that at a

minimum the substance be listed on the federal schedules.” Id. at 1077, n.5.


35

B. Ragasa Failed To Establish A Realistic Probability That His Hawaii State Conviction Would Apply To Controlled Substances Not Found In The CSA Petitioner was convicted of Attempted Promoting a Dangerous Drug

in the First Degree, in violation of sections 705-500(I)(b) and 712-

1241(1)(b)(ii) of the HRS. A.R.474. Section 712-1240 of the HRS defines

“dangerous drugs” as “any substance or immediate precursor defined or

specified as a ‘Schedule I substance’ or a ‘Schedule lI substance’ by chapter

329, or a substance specified in section 329-18(c)(13), except marijuana or

marijuana concentrate.”

Petitioner contends that the government has not established his

removability under INA § 237(a)(2)(B)(i ) by clear and convincing evidence

because his conviction records do not identify the controlled substance involved

in his offense and the Hawaii and CSA controlled substance lists are not

coextensive. Specifically, Ragasa asserts that a portion of Hawaii controlled

substance Schedule III (found at HRS § 329-18(c)(13)) does not correspond to

the CSA schedules. Pet’s Br. at 24. He asserts that the list of substances

criminalized under the Hawaii drug statutes includes the substance

“Tiletamine/Zolazepam (Telazol,2-(ethylamino)-2-(thienyl)-cyclohexanone,

flupyrazapon) or any salts thereof,” a substance not listed in the CSA. Id. He


36

posits that since the HRS and CSA lists are not coextensive, the government

cannot establish his conviction was related to a controlled substance. Id. at 24.

The Board properly found no merit to Ragasa’s argument, as

“’Tiletamine and zolazepam or any salt thereof, which are also identified as

trade names, including Telazol,2-(ethylamino)-2-(thienyl)-cyclohexanone,

flupyrazapon)’ is included in Schedule III of the CSA.” A.R. 6, citing 21

C.F.R. § 1308.13. Indeed, Section III of the CSA lists as controlled substances:

“Tiletamine and zolazepam or any salt thereof.” It further provides “some trade

or other names for a tiletamine-zolazepam combination product: Telazol” and

that “some trade or other names for tiletamine: 2 -(ethylamino)-2- (2-thienyl)-

cyclohexanone.” C.F.R. § 1308.13(c)(14). The CSA was amended to include

the aforementioned controlled substances on January 21, 1987. See 52 Fed.

Reg. 2221-01 (Jan. 21, 1987); 1987 WL 154793 (F.R.). Therefore, Ragasa’s

argument failed because the substances he identified in the HRS list were also

on the CSA list.

Ragasa also failed to cite any cases in which Hawaii criminalized

conduct involving a substance not covered by the CSA. Therefore, he failed to

establish a realistic probability that Hawaii would apply its statute outside the

federal definition. As the Supreme Court held in Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007):


37

to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

549 U.S. 183, 193 (2007).

Because the substance identified by Ragasa actually appears in the CSA

and Ragasa has made no showing that Hawaii law criminalizes conduct

involving “controlled substances” not in the CSA, Ragasa did not establish a

realistic probability that his criminal conviction was for a controlled substance

not contained in the CSA. Therefore, the Board properly found him removable

under INA § 237(a)(2)(B)(i).

IV. RAGASA’S CHALLENGE TO THE AGENCY’S DISCRETIONARY DENIAL OF CANCELLATION OF REMOVAL DOES NOT RAISE A COLORABLE DUE PROCESS CLAIM FOR THIS COURT’S CONSIDERATION Because Ragasa is removable as under INA § 237(a)(2)(B)(i), the Court’s

review of the remaining issues raised in his petition is limited to colorable

constitutional questions and questions of law . See 8 U.S.C. § 1252(a)(2)(C),

(D). To be colorable in this context, the alleged violation need not be


38

substantial, but the claim must have some possible validity. See Martinez-

Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (citations and quotations

omitted). Ragasa raised no colorable constitutional claim or question of law

challenging the discretionary denial of his application for cancellation of

removal .

As an initial matter, Ragasa has no liberty interest in the discretionary

relief of cancellation of removal upon which to predicate a due process claim.

As a threshold requirement to any due process claim, an alien must show that he

has a protected property or liberty interest. See Board of Regents v. Roth, 408

U.S. 564, 569 (1972) (“[t]he requirements of procedural due process apply only

to the deprivation of interests encompassed by the [Due Process Clause’s]

protection of liberty and property”). This Court has repeatedly held that aliens

have no liberty interest in discretionary relief, including cancellation of

removal. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008)

(alien “does not have a cognizable liberty interest in discretionary relief from

removal”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (“Since

discretionary relief is a privilege created by Congress, denial of such relief

cannot violate a substantive interest protected by the Due Process Clause.”)

Regardless, the agency did not abuse it discretion in considering

Ragasa’s testimony regarding his history of drug use in evaluating his eligibility


39

for cancellation of removal. As the Board observed, “[a]ccording to the

framework set forth in Matter of Marin, 16 I. & N. Dec. 581, 582-83 (BIA

1978), in exercising discretion an immigration judge must review the record in

its entirety and then balance the social and humane considerations presented in

an alien’s favor against the adverse factors evidencing his undesirability as a

permanent resident.” A.R. 7, citing Matter of C-V-T-, 22 I. & N. Dec. 7 (BIA

1998). Indeed, this Court has observed that the agency has an obligation, in

determining whether to grant cancellation of removal, “to weigh both favorable

and unfavorable factors by evaluating all of them, assigning weight or

importance to each one separately and then to all of them cumulatively.”

Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.2006). One such

factor an immigration judge should consider is whether the petitioner is a law-

abiding citizen. See In re O-J-O-, 21 I. & N. Dec. 381, 387 (BIA 1996)

(With regard to the exercise of discretion, immigration judge may consider

whether alien pays his taxes and is law abiding).

It is clear from the record that the immigration judge and the Board fully

and thoughtfully considered the positive and negative factors relevant to

Ragasa’s application for cancellation of removal. Ragasa testified freely and

truthfully about his history of drug use; he has not claimed that his testimony

regarding his history of drug use was given under duress or that it was untrue or


40

even misinterpreted. Therefore, Petitioner’s allegation that the agency violated

his rights in considering his history of drug use in evaluating his eligibility for

cancellation of removal does not present a colorable due process claim for this

Court’s review.

CONCLUSION

For the foregoing reasons, the Court should dismiss or, in the alternative,

deny the petition for review.

Respectfully submitted,

STUART F. DELERY Acting Assistant Attorney General

ERNESTO H. MOLINA, JR. Assistant Director s/ S. NICOLE NARDONE S. NICOLE NARDONE Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20530 (202) 305-7082

July 16, 2013 Attorneys for Respondent


CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7), I certify that

the Brief for Respondent:

(1) was prepared using Times New Roman 14 type; (2) contains 8,836 words of text.

s/ S. NICOLE NARDONE S. NICOLE NARDONE Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20530 (202) 305-7082



STATEMENT REGARDING ORAL ARGUMENT

Respondent believes that the issues are adequately addressed in the

briefs and that oral argument is unnecessary. However, should the Court

schedule oral argument, Respondent requests an amount of time equal to that

afforded to the Ramos-Garcia.




CERTIFICATE OF SERVICE

I hereby certify that on July 16 , 2013, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals for

the Ninth Circuit by using the appellate CM/ECF system. I further certify that

the following CM/ECF participants will be served by the appellate CM/ECF

system.

M. CORA AVINANTE 550 HALEKAUWILA STREET SUITE #304 HONOLULU, HAWAII 96813



Documents

RAGASA - law.hawaii.edu · no. 12-72262 in the united states court of appeals for the ninth circuit crisanto carino ragasa, a037-485-221, petitioner, v. eric h. holder, jr.,