United States v. 2009-11-10 | 08-72133 | ROMUALDO BERMUDEZ V. ERIC H. HOLDER JR. | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROMUALDO CABAY BERMUDEZ,
Petitioner, No. 08-72133
v. Agency No.
 A34-027-920ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 15, 2009*
Honolulu, Hawaii
Filed November 10, 2009
Before: Robert R. Beezer, Susan P. Graber, and
Raymond C. Fisher, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
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COUNSEL
James A. Stanton, Honolulu, Hawaii, for the petitioner.
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Lindsay E. Williams, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
OPINION
PER CURIAM:
Petitioner Romualdo Cabay Bermudez petitions for review
from a final order of the Board of Immigration Appeals
(“BIA”) denying his request to terminate proceedings and his
request for cancellation of removal. Petitioner argues that his
conviction for possessing “a pipe and/or packets” that are
used for and with the drug methamphetamine is not a viola-
tion of a law “relating to a controlled substance,” so that he
is eligible for cancellation of removal. We are not persuaded.
We hold that Petitioner’s conviction is indeed one “relating to
a controlled substance” and, as a result, we lack jurisdiction
over the petition for review.
Petitioner is a native and citizen of the Philippines. He was
admitted to the United States in 1973. On June 9, 2006, Peti-
tioner was convicted of the offense of Prohibited Acts Related
to Drug Paraphernalia, in violation of section 329-43.5(a) of
the Hawaii Revised Statutes. That section provides:
Prohibited acts related to drug paraphernalia
(a) It is unlawful for any person to use, or to pos-
sess with intent to use, drug paraphernalia to plant,
propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, conceal, inject,
ingest, inhale, or otherwise introduce into the human
body a controlled substance in violation of this chap-
ter.
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Haw. Rev. Stat. § 329-43.5(a) (2009). Following that convic-
tion, the government charged Petitioner with being removable
under 8 U.S.C. § 1227(a)(2)(B)(i). That section reads in rele-
vant part:
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 . . . is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).
We determine our own jurisdiction de novo. Luu-Le v. INS,
224 F.3d 911, 914 (9th Cir. 2000). Whether a particular con-
viction is a deportable offense is a question of law, which we
likewise review de novo. Id. (citing Coronado-Durazo v. INS,
123 F.3d 1322, 1324 (9th Cir. 1997)).
[1] In Luu-Le, we held that an Arizona statute that criminal-
ized possession of drug paraphernalia was a law “relating to
a controlled substance.” Id. The Arizona statute read:
It is unlawful for any person to use, or to possess
with intent to use, drug paraphernalia to plant, propa-
gate, cultivate, grow, harvest, manufacture, com-
pound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, conceal, inject,
ingest, inhale, or otherwise introduce into the human
body a drug in violation of this chapter.
Ariz. Rev. Stat. § 13-3415(A) (2008). Holding that the Ari-
zona statute is “clearly a law ‘relating to’ a controlled sub-
stance” because it “is plainly intended to criminalize behavior
involving the production or use of drugs,” we dismissed the
petition for review for lack of jurisdiction. Luu-Le, 224 F.3d
at 916.
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[2] Here, Petitioner was convicted for possessing drug par-
aphernalia in violation of section 329-43.5(a) of the Hawaii
Revised Statutes. The text of that statute is materially identi-
cal to the Arizona statute at issue in Luu-Le. Compare Haw.
Rev. Stat. § 329-43.5(a) with Ariz. Rev. Stat. § 13-3415(A).
Thus, we hold that Petitioner was convicted for a violation of
a law “relating to a controlled substance.” 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). Because Petitioner is removable by
reason of having committed a controlled substance offense,
we lack jurisdiction over the petition for review, pursuant to
8 U.S.C. § 1252(a)(2)(C).
We further lack jurisdiction over the petition for review,
pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), because Petitioner
challenges a discretionary decision—the denial of his applica-
tion for cancellation of removal in the exercise of discretion.
We lack jurisdiction to review a decision by the BIA denying
an alien’s application for cancellation of removal in the exer-
cise of discretion. Mendez-Castro v. Mukasey, 552 F.3d 975,
978 (9th Cir. 2009).
Petitioner has not set forth a colorable constitutional claim
over which we otherwise could exercise jurisdiction. See id.
(holding that “any challenge of an [immigration judge’s] dis-
cretionary determination must present a colorable claim” in
order for this court to exercise jurisdiction (citing Martinez-
Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005))).
PETITION DISMISSED.
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