Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 1 of 52. No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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1 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 1 of 52 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CRISANTO CARINO RAGASA, A , 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 (202) Attorneys for Respondent

2 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 2 of 52 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 III. IMMIGRATION JUDGE DECISION IV. DECISION OF THE BOARD SUMMARY OF THE ARGUMENT ARGUMENT I. STANDARD OF REVIEW AND BURDEN OF PROOF II. THE BOARD CORRECTLY REJECTED RAGASA S CITIZENSHIP CLAIM A. The Court s Authority And The Burden Of Proof 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 i

3 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 3 of 52 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 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 III. THE BOARD PROPERLY FOUND RAGASA REMOVABLE AS AN ALIEN CONVICTED OF A CONTROLLED SUBSTANCE OFFENSE A. Statutory Scheme B. Ragasa Failed To Establish A Realistic Probability That His Hawaii State Conviction Would Apply To Controlled Substances Not Found IN The CSA 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 CONCLUSION CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE ii

4 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 4 of 52 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) Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005)... 24, 25 Berenyi v. INS, 385 U.S. 630 (1967) 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) Gameros-Hernandez v. INS, 883 F.2d 839 (9th Cir.1989) Ghaly v. INS, 58 F.3d 1425 (9th Cir. 1995) Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)... 19, 36, 37 Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001) Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) iii

5 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 5 of 52 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) Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) Miller v. Albright, 523 U.S. 420 (1998)... 24, 25 Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005) Morgan v. Att'y General, 432 F.3d , 25 Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) Russello v. United States, 464 U.S. 16 (1983)... 32, 33, 36 Sandoval-Luna v. Mukasey, 526 F.3d 1243 (9th Cir. 2008) Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) 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 iv

6 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 6 of 52 ADMINISTRATIVE DECISIONS In re O-J-O, 21 I. & N. Dec. 381 (BIA 1996) 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) Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978)... 20, 39 Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965) Matter of Rodriguez-Tejedor, 23 I. &N. Dec. 153 (BIA 2001) Matter of Sotelo, 23 I. & N. Dec. 201 (BIA 2001) v

7 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 7 of 52 STATUTES Immigration and Nationality Act of 1952, as amended: Section 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) 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 (a)(2)(b)(i)... 2, passim Section 237(A)(iii), 8 U.S.C. 1227(A)(iii) 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) 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 vi

8 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 8 of 52 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 Section 309(a)(1), 8 U.S.C. 1409(a)(1) 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) Section 322, 8 U.S.C , 24, 25 OTHER STATUE 21 U.S.C vii

9 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 9 of 52 REGULATIONS 8 C.F.R (b)(3) C.F.R (c)(14) C.F.R C.F.R viii

10 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 10 of 52 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CRISANTO CARINO RAGASA, A , 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, See Certified Administrative Record ( A.R. ) at 3-7. The Board s jurisdiction arose under 8 C.F.R (b)(3) and 8 C.F.R (2013), which grant the Board appellate jurisdiction over decisions of immigration judges in removal proceedings.

11 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 11 of 52 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, 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 (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. 2

12 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 12 of 52 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). 3

13 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 13 of 52 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 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 ) (1)(b) & (b)(ii). Id., A.R

14 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 14 of 52 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 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 (1)(b) & (1)(b)(ii). A.R 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 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 He 5

15 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 15 of 52 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 (1) (b) and (i)(b), which did not include methamphetamine. A.R The immigration judge rescheduled Ragasa s hearing so his counsel could produce documentation of his citizenship. A.R On September 27, 2011, upon consideration of Ragasa s evidence, the immigration judge sustained the first and second allegations of the NTA. A.R On November 17, 2011, the immigration sustained the fourth allegation. A.R 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 Following a merits hearing on January 31, 2012, the immigration judge denied Ragasa s application for cancellation of removal. A.R The immigration judge also denied Petitioner voluntary departure and ordered him 6

16 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 16 of 52 removed from the United States. A.R. 81. On March 1, 2012, Petitioner filed an appeal with the Board. A.R On July 19, 2012, the Board issued an order affirming the immigration judge s decision and dismissing the appeal. A.R 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 A.R His mother, Remy Ramonez Ragasa, died when he was six years old. A.R Byron said Ragasa was involved in his life and was a hard-working and dedicated father. A.R Ragasa attended Byron s drop-out prevention programs and ensured his graduation from high school. A.R 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 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

17 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 17 of 52 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 Byron believed that his father should be allowed to stay in the United States, despite his conviction for selling drugs. A.R Byron no longer lives with his father; he moved out when he was eighteen. A.R Byron never visited his father in jail because he could not afford a plane ticket to see him. A.R Byron explained that his father was incarcerated in Oahu and in Arizona. A.R He last saw his father on July 22, A.R 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 She married Ragasa in A.R Delia works as a nurse at the Hilo Medical Center. A.R She and Ragasa have three U.S. citizen children: a twelveyear-old girl, and twin five-year-old boys. A.R Delia s parents, who are in their seventies, also live with them. A.R Delia said all three of her children suffer from chronic asthma and frequently need nebulizer treatments. A.R One of the boys had a mass in his leg which caused him pain. A.R Both boys had been assessed with speech problems. A.R

18 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 18 of 52 Delia s father suffered liver, prostate and respiratory problems which required frequent medical visits. A.R 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 Delia said that, as a result of his wrist injury in 2006, Ragasa was unable to maintain his job as a mechanic. A.R Delia believed Ragasa suffered from depression at that time, because he was quiet, distant and feeling hopeless. A.R Delia witnessed Ragasa s criminal proceedings and said he was very cooperative with the authorities. A.R Delia believed Ragasa s conviction changed him; he started spending more time with their kids and going to church. A.R Delia was in constant contact with her husband during his incarceration. A.R 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 Delia said she would not go to the Philippines with her husband if he was deported. A.R The only family they have in the Philippines is Ragasa s biological mother. A.R 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 Delia never knew that Ragasa was involved with drugs until 9

19 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 19 of 52 he was arrested. A.R 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 During Ragasa s incarceration, Delia supported her household with her salary and her parents social security income. A.R Ragasa and Delia own their home; they have three cars. A.R Delia did not believe she could easily find a job in the Philippines, as they had no demand for nurses. A.R 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 Ragasa was adopted by his uncle and aunt, Alejandro Ragasa and Cleofe Ragasa, who were residing in Hawaii. A.R 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 He had a son with his first wife; his first wife died in October A.R He remarried in July A.R Ragasa started using drugs when his first wife died, as his life was all hopeless. A.R If Ragasa was granted cancellation of removal, he would change his life; he would look for work and try to help his 10

20 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 20 of 52 wife pay the bills. A.R He would also never use drugs again if he was granted relief. A.R On cross-examination, Ragasa conceded that he used drugs for twelve years, from 1995 until his conviction in A.R He mainly used marijuana, cocaine and ice (also known as methamphetamine). A.R Ragasa said he used drugs during his second marriage but not continuously during this period. A.R Ragasa conceded that he hid his drug use from his wife and family because he knew it was bad using drugs. A.R He did not sell drugs for money; he sold to support his drug habit. A.R Ragasa conceded that he was using methamphetamine at the time he was arrested. A.R He said he was caught the first time he tried selling drugs (which resulted in his conviction) and never sold again. A.R Ragasa believed he should be granted relief for the sake of his family and because his behavior was a mistake. A.R He said he never would have done these things had he known he could be deported for them. A.R 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

21 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 21 of 52 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 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. 12

22 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 22 of 52 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 13

23 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 23 of 52 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 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 , 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, 14

24 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 24 of 52 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 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 15

25 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 25 of 52 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. 16

26 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 26 of 52 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. 17

27 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 27 of 52 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 18

28 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 28 of 52 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) 19

29 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 29 of 52 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, (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

30 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 30 of 52 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 21

31 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 31 of 52 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 22

32 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 32 of 52 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 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). 23

33 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 33 of 52 Because Ragasa was born in the Philippines, he bore the burden of establishing his claim to U.S. citizenship. A.R 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 (1986). 24

34 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 34 of 52 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 (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 and Pet s Br. at Thus, the agency properly concluded that Ragasa did not became a United States citizen pursuant to INA 322. A.R

35 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 35 of 52 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: INA 301(a)(7). 2 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. 2 At the time of Ragasa s adoption in 1980, INA 301(a)(7) had been amended (Pub. L , October 10, 1978) by eliminating the (a) before The 26

36 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 36 of 52 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. 27

37 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 37 of 52 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, 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 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 28

38 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 38 of 52 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 29

39 Case: /16/2013 RESTRICTED ID: DktEntry: 14 Page: 39 of 52 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 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 30