I. STATEMENT OF JURISDICTION. CRISANTO CARINO RAGASA ( Petitioner ) seeks to vacate the INA

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1 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 1 of 33 I. STATEMENT OF JURISDICTION CRISANTO CARINO RAGASA ( Petitioner ) seeks to vacate the INA 237(a)(2)(B)(i) and (A) (iii)immigration Judge s ( IJ ) order of removal entered on January 31, 2012 (See Certified Administrative Record (CAR) at ) and review of the Board of Immigration Appeals ( BIA ) final decision of June 19, 2012, affirming the Immigrations Judge s ( IJ ) oral decision ( See Certified Administrative Record (CAR) at 3-4). Petitioner asserted that the Immigration Court abused it s discretion to the BIA and is appealing the Immigration Judge s decision. The IJ found that Petitioner had not established United States citizenship. The Immigration court also found Petitioner removable under of the act even though the Hawaii controlled substance statute under which he was convicted includes controlled substances which are not criminalized under the federal Controlled Substances Act ( CSA ). Petitioner also argues that the Immigration court abused it s discretion when it used Petitioner s truthful statements to prejudice his application for Cancellation of Removal. 1

2 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 2 of 33 The BIA denied petitioner s appeal on June 19, 2012, and this petition for review was timely filed on July 13, 2012, within thirty days of the BIA s final order. INA 242(b)(1), 8 U.S.C. 1252(b)(1). Venue properly lies in this Court pursuant to INA 242 (b)(2), 8 U.S.C (b)(2) for the reason that the administrative proceedings before the IJ took place within this judicial circuit and the decision by the Board of Immigration Appeals was a final agency determination. This Court has jurisdiction to address the Petitioner s petition for review of his final removal order because the issues of whether he qualified for United States citizenship, or was removable under INA 237(a)(2)(B) and (A)(iii) of the Act, are questions of law, reviewable under the REAL ID Act of 2005, 8 U.S.C (a)(2)(d). The Act restored the 9 th Circuit s jurisdiction to review questions of law presented in petitions for review of final removal orders. The Act states, Nothing in subparagraph (B) or (C), or in any other Provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review of constitutional claims or questions of law raised upon a petition of review filed with an appropriate court of appeals in accordance with this section. 8U.S.C (a)(2)(d). 2

3 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 3 of 33 This Court has stated that [i]nterpretation of immigration statutes is a question of law that [the 9 th Circuit] review[s] de novo. Cabrera-Alverez v. Gonzales, 423 F.32d 1006, 1007 (9 th Cir. 2005); Lopez-Torres v. Gonzales, 202 Fed. Appx. 979 (9 th Cir. 2006); Li Bin Lin v. Gonzales, 472 F. 3d 1131 (9th Cir. 2007) Accordingly, this Court has jurisdiction pursuant to the Immigration and Nationality Act (INA) 242(a)(1) and INA 242(a)(2)(C), 8 U.S.C. 1252, limitation on judicial review of orders of removal for certain convicted aliens does not apply. II. STATEMENT OF THE ISSUES 1. Whether it is an abuse of discretion for an immigration judge to find that Petitioner did not establish that he was a United State Citizen under the former section of INA 301 (a)(7) of the Act. 2. Whether the Immigration court abused it s discretion when it found that Petitioner was removable under INA 237(a)(2)(B) and (A)(iii) of the Act as his State conviction under the Hawaii drug statute when the Hawaii drug statute included drugs that are not in the CSA. 3. Whether the Immigration court abused it s discretion when it used Petitioner s truthful statements about his past absent an actual conviction to prejudice his application for Cancellation of Removal. 3

4 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 4 of 33 III. STANDARD OF REVIEW An agency s interpretation or application of a statute is a question of law reviewed de novo. Lafarga v. INS, 170 F.3d 1213, 1215 (9 th Cir. 1999); Garcia- Lopez v. Ashcroft, 334 F.3d 840 (9 th Cir. 2003). Whether a conviction is a deportable offense is a question of law reviewed de novo. See Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9 th Cir. 1997); Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.4 (9 th Cir. 1995); Morales-Alegria v. Gonzales, 449 F.3d 1051 (9 th Cir. 2006). A petition for review of an order of the Board of Immigration Appeals is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of Agyeman v. INS, 296 F.3d 871 (9 th Cir. 2002). When the BIA reviews the IJ s decision de novo, the appellate court s review is limited to the BIA s decision except to the extent that the BIA adopted the IJ s opinion. The appellate court reviews de novo legal interpretations of the Immigration and Naturalization Act's requirements. Because the standard of review is de novo, the appellate court conducts an independent examination of the entire record. 4

5 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 5 of 33 IV. STATEMENT OF THE CASE Petitioner is a 45 year old adult male born in the Philippines, who was adopted by American citizen parents and came to the United States when he was 14 years of age on November 6, 1980 as an IR4 immigrant. He is presently being held in custody at the Federal Detention Center after serving two years in State custody. Petitioner has an American citizen spouse and three children. Respondent has only one conviction for Attempted promoting dangerous Drugs in the first decree and no other criminal convictions. This was Petitioner s first conviction for drugs. On July 28, 2008, Petitioner pleaded guilty to the one count of attempted promoting dangerous drugs in the first degree, and the Judgment was modified in the State court on August 17, Petitioner was convicted of Attempted Promoting a Dangerous Drug in the 1 st Degree under Hawaii Revised Statutes (1)(b) and (1)(b)(ii). The Petitioner withdrew it s original allegation number 4 on the Notice to Appear dated February 17, 2011, and substituted with the following: 5. You were on July 28, 2008, convicted 5

6 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 6 of 33 in the Circuit Court of the Third Circuit, State of Hawaii, for the offense of Attempted Promoting a Dangerous Drug in the First Degree under CR. No in violation of sections (1)(b) and (1)(b)(ii) of the Hawaii Revised Statutes. The Immigration court found Petitioner removable under INA 37(a)(2)(B)(i) and (A) (iii) INA 237(a)(2)(B)(i) and (A) (iii). The BIA affirmed the Immigration court s decision which he has now appealed to the Ninth Circuit court of Appeals. V. STATEMENT OF THE FACTS Petitioner initially sought to have the case terminated before the Immigration court, as he made a claim to U.S. Citizenship his claim to citizenship was based on Petitioner s claims to automatic citizenship under the laws subsequent to 12/24/52 but before 2/27/01 under Public Law Petitioner argued that this period is applicable to him as dates when his parents Naturalized, is the key for automatic citizenship, his mother Cleofe naturalized on August 21, 1964, and when she married Alejandrino on April 24, 1956 the marriage contract indicated that he was an 6

7 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 7 of 33 American. Thus INA 320, as amended by P.L , Repealed by P.L was the law applicable to him for Derivative citizenship. 7 FAM 1157 (b) for Adopted Children and Derivative Naturalization Prior to February 21, This was denied by the Immigration court. Petitioner also asserted to the court that he was not removable under INA 237(a)(2)(B) and (A)(iii) of the Act as his State conviction under the Hawaii Drug Statutes included drugs that were not in the Federal Constrolled Substances Act. This argument was also denied by the court as well, the court found Petitioner removable for the State convict ion under INA 237(a)(2)(B) and (A) (iii). Petitioner in the alternative also sought relief under INS 42(b) wherein he is required to have at least ten years of continuance residence in order to qualify for this form of relief. While the court did not consider his one conviction as an aggravated felony to 7

8 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 8 of 33 disqualify the Petitioner for the requested relief, the court did use Petitioner s statements as aggravating facts comparable to a finding of a conviction for an aggravated felony situation to disqualify the Petitioner, thus finding that Petitioner was not qualified for relief under INA 42(A). VI. SUMMARY OF THE ARGUMENT Petitioner asserts that he is a United States Citizen as he qualifies as an individual who has acquired citizenship automatically under the former section INA 301(a)(7) of the Act, 8 U.S.C.1401 (a), now designated 301(g). Petitioner also asserts that the Immigration court was incorrect in it s finding that Petitioner was removable under INA 237(a)(2)(B) and (A)(iii) of the Act as the record will show that his State of Hawaii conviction under the Hawaii drug Statute included drugs that were not in the Controlled Substance Act. The Immigration court also abused it s discretion when it used statements by the Petitioner against him to literally disqualify as if he had convictions, which prejudiced his qualification for INA 42(A) relief. VII. ARGUMENT I. IT WAS AN ABUSE OF DISCRETION FOR THE IMMIGRATION JUDGE TO FIND THAT PETITIONER DID NOT ESTABLISH THAT HE WAS A UNITED STATES CITIZEN The Immigration court hearing the court cited two cases, which the 8

9 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 9 of 33 court held are applicable to Petitioner and that it would deny Petitioner s claim to Citizenship. The first case cited by the court was dated March 11, 2008, Mustanich, vs. Mukasey, 518 Fed. 3 rd. 1084, (2008) this case is distinguishable from Petitioner s legal argument and factual situation for several reasons. Mustanich adopted parents were not naturalized U.S. Citizens, but citizens through birth. That Mustanich was born on August 15, 1978 and he was adopted when he was one years old in 1979, while Petitioner was born in 1966 and was adopted in 1980 when he was fourteen years of age. That Mustanich was claiming citizenship rights through the court, under the legal doctrine of Estoppel, under no statutory rights given by law through Congress. Because Mustanich was born outside the United States the court held that he was required to satisfy U.S.C before becoming a naturalized citizen. That because Mustanich adopted parents were unable to file the application for naturalization before he was eighteen he did not qualify for citizenship under 1433 of the 8 U.S.C. The present law provides as follows: Children born and residing outside the United States; conditions for acquiring certificate of citizenship (a) Application by citizen parents; requirements 9

10 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 10 of 33 A parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 1431 of this title. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled: (1) At least one parent (or, at the time of his or her death, was) is a citizen of the United States, whether by birth or naturalization. (2) The United States citizen parent (A) has (or, at the time of his or her death, had) been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or (B) has (or, at the time of his or her death, had) a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years. (3) The child is under the age of eighteen years. (4) The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application). (5) The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status. (b) Attainment of citizenship status; receipt of certificate Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section 1448 (a) of this title, upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship. (c) Adopted children Subsections (a) and (b) of this section shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101 (b)(1) of this title. 10

11 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 11 of 33 The exception to 1433 regarding conditions for acquiring a certificate of citizenship on behalf of a child born outside of the United States is for a child who has acquired citizenship automatically under section 1431 of title 8 USC. That section provides : Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. (b) Subsection (a) of this section shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101 (b)(1) of this title. A. Petitioner qualifies as an individual who has acquired citizenship under the former section INA 301(a)(7) of the Act, 8 U.S.C (a), now designated 301(g) Petitioner Ragasa, is claiming citizenship under this exception, and under the laws applicable to him at the time of his parents naturalization. However the same reasoning was given by the USCIS in its denial of 11

12 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 12 of 33 Petitioner s N- 600 application. The USCIS claims in there memo The prior Sections 320 and 321 of the INA did not include children whose adoptive parents were already naturalized at time of adoption or were citizens at birth. In cases where the adoptive parents were already United States citizens prior to the adoption of the child, then it was necessary to apply for certificates under Section 322 of the INA prior to the child turning 18 years of age. However Petitioner s claims automatic citizenship under the laws Subsequent to 12/24/52 but before 2/27/01 under Public Law Petitioner argues that this period is applicable to him as dates when his parents Naturalized, is the key for automatic citizenship, his mother Cleofe naturalized on August 21, 1964, and when she married Alejandrino on April 24, 1956 the marriage contract indicated that he was an American. Thus INA 320, as amended by P.L , Repealed by P.L was the laws applicable to him for Derivative citizenship. 7 FAM 1157 (b) for Adopted Children and 12

13 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 13 of 33 Derivative Naturalization, Prior to February 21, ( b): From December 24, 1952 to October 5, 1978 (Public Law ) was the law for that period regarding for Derivative citizenship of lawful permanent resident children gaining citizenship through parents citizenship., foreign-born children adopted by aliens who later became naturalized U.S. citizens automatically became naturalized U.S. citizens themselves provided: (1) They were adopted before they reached age 16; and (2) A parent naturalized before the child reached age (d): Applicants in categories (b) or ( c ) must submit: (1) Certificate of birth with the seal of the issuing office; (2) Certified copy of adoption decree (3) Evidence of the adoptive parent s identity; (4) Evidence of th adoptive parent s U.S. citizenship; (5) Evidence that the child resides with a U.S. citizen parent ; and (6) Primary Evidence of Permanent Residence status: Child s permanent resident alien registration car indicating an acceptable IR category or foreign passport with US. Entry stamp reflecting admission as lawful permanent resident. The only restriction in the former INA 320 laws applicable to Petitioner was that the parents naturalization and the his lawful admittance occur before he was eighteen years of age, it provides that the date of automatic acquisition is the DATE THE LAST CONDITION WAS FULFILLED. Former INA 320 does NOT require that his parents apply for certificates before he turned eighteen. Petitioner s parents hired an attorney and went through all the trouble of getting the Hawaii adoption decree back dated to 1980, assuming that he would be 13

14 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 14 of 33 automatically a citizen under the abovementioned laws. The second case which the Immigration court cited was Hughes vs. Ashcroft, 255 Fed.3rd 1752 (2001). In that case the Petitioner was born in 1956 from Poland and was adopted by two U.S. Citizens on May of Hughes was claiming automatic citizenship under Title 1 of the 2000 Child and Citizenship Act. The court in that case the court denied the petition because Hughes did not apply for citizenship to qualify as a non citizen national of the U.S. and because he was 40 years old when the CHILD CITIZENSHIP ACT OF 2000 took effect and automatic citizenship did not apply to him. In Petitioner s case he is not claiming to be a U.S. National, nor is he claiming to be a citizen under Child Citizenship Act 2000 automatic citizenship, but under Public Law which applicable as of October 5, 1978 to foreign-born adopted children. PETITIONER ALSO QUALIFIES FOR CITIZENSHIP UNDER 1401 Petitioner Ragasa is also claiming citizenship through the statutory requirements of 8 U.S.C. 1401(g) as passed by Congress. When Petitioner 14

15 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 15 of 33 Ragasa was born in 1966, the categories of persons recognized as nationals and citizens of the United States at birth, set forth in 8 U.SC. 1401, included:...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 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... A. Petitioner s situation is similar to Solis-Espinoza v. Gonzales, 401 f.3d 1090 (9 th Cir. 2005) Petitioner asserts that Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9 th Cir. 2005) is applicable to his situation, in that case the Ninth Circuit found that a child can acquire citizenship at birth through a person who is neither a biological nor an adoptive parent. This case arose under the context of acquired citizenship rather than derivative citizenship, In that case Solis-Espinoza was born in Tijuana, Mexico in 1967, both of his biological parents were not U.S. Citizens. Respondent was born in the Philippines 1966, both of his biological parents were not U.S. Citizens. Solis-Espinoza was raised in the United States by his biological father, Refugio Solis, a Mexican citizen and lawful permanent resident of the United States, and his father s wife, Stella Cruz- Dominguez, a natural-born United States citizen. Solis and Cruz-Dominguez were married at the 15

16 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 16 of 33 time of Solis- Espinoza s birth. That at the time of Respondent Ragasa s birth on June 9, 1966 both his adoptive parents were married and U.S. citizens. On appeal to the BIA, the BIA found that since neither of Solis-Espinoza s biological parents were United States citizens, he did not share a blood relationship with a U.S. citizen and did not, according to the BIA, qualify for citizenship. The Ninth Circuit reversed the BIA decision and found the following: The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child s birth. Scales, supra, 232 F.3d at (quoting United States v. Viramontes-Alvarado, 149 F.3d 912, 915 (9th Cir.), cert. denied, 525 U.S.976, (1998)). When Solis-Espinoza was born in 1967, the categories of persons recognized as nationals and citizens of the United States at birth, set forth in 8 U.S.C. 1401, included: 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. 8 U.S.C. 1401(a)(7) (1964) (redesignated in 1978 as 16

17 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 17 of (g)). In Respondent Ragasa s case he had an Immigrant Visa IR-4, as petitioned by his adoptive father Alejandrino Ragasa ( See USCIS Exhibit 2, Tab B dated September 22, 2010). Respondents adoptive father was married to his adoptive mother Cleofe Ragasa on April 24, 1956, and in the marriage contract it indicates that Alejandrino Ragasa was an American, which was ten years before Respondent Ragasa was born on June 9, The court in Solis-Espinoza,(supra) (p. 3572) went on further to define as follow: Child, as used in the subchapter concerning nationality, including 1401, was defined as follows: The term child means an unmarried person under twenty-one years of age and includes a child U.S.C. 1401(a)(7) (1964) (redesignated in 1978 as 1401(g)). 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 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. 8 U.S.C. 1101(c)(1) (1964). Petitioner Ragasa s adoption occurred when he was fourteen years of age, the Hawaii State family court specifically backdated the effective date of the adoption and made the effective date of his adoption to be when he was fourteen years of age, and while he was in the legal custody of his adoptive parents. 17

18 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 18 of 33 B. Petitioner s situation is also supported by this court s ruling in Scales v. INA, 232 F.3d 1159 (9 th Cir. 2000) The Ninth Circuit Courts decision in Scales v. INS, 232 F.3d 1159,1166 (9th Cir. 2000) concerned the same statutes, since they were in the same form ten years later, in 1977, when the petitioner in that case was born. In that case a Petitioner who was born in the Philippines in 1977 to an American citizen serviceman and a Philippine citizen. When Petitioner was nineteen years of age he was convicted of an aggravated felony. On appeal to the BIA Petitioner asserted that Scales senior was his natural father, but the BIA rejected his argument citing an affidavit of non-paternity that his father signed in order to obtain an immigrant visa for Petitioner in Petitioner has not been naturalized, claiming instead that he acquired citizenship at birth by being born to a citizen father. The court in Scales, (supra, p. 1066) provided as follows: The statutory provisions concerning citizenship do not address the situation presented here, where the child is "legitimate" by virtue of his parents being married at the time of his birth, yet he may not be the "natural," or biological, child of the citizen parent. Section 1401(a)(7) merely states that a person "born... of parents one of whom is an alien, and the other a citizen of the United States" is a citizen, if the residency requirement is met by the citizen parent. It does not address whether being "born of parents" requires only that the 18

19 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 19 of 33 person be born in wedlock, or, as the BIA concluded, that there must be a blood relationship between the person claiming citizenship and the citizen parent. A straightforward reading of 1401 indicates, however, that there is no requirement of a blood relationship. Thus, even if the affidavit of nonpaternity is sufficiently "clear, cogent, and convincing" to overcome the state law presumption that Scales is Petitioner's natural father, it does not defeat Petitioner's acquisition of citizenship under In the Scales case, the Ninth Circuit held that a blood relationship between a child and a U.S. citizen was not required to establish citizenship under 8 U.S.C. 1401(g), if the child in question was not born out of wedlock. In that case the court found that a child acquired U.S. citizenship at birth even though neither of his biological parents were citizens, but at the time of his birth his mother was married to a U.S. Citizen. In Petitioner s Ragasa s case he was adopted before he was sixteen, his adoptive parents were married when he was born, and his American citizen adoptive father was residing in the U.S. for the required ten years. That based on the Ninth Circuit decision in Solis-Espinoza v. Gonzales, 401 F.3d 1091 (9 th Cir. 2005) that a child acquired U.S. citizenship at birth even though neither of his biological parents were citizens, but at the time of his birth his father was married to a US. Citizen who did not formally adopt him. The court in Solis- Espinoza granted Citizenship to the thirty three year old, under 8 U.S.C. 1401(g). 19

20 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 20 of 33 The Ninth Circuit in Scales supra, had a slightly different situation where the appellate court had to determine whether the respondent in that case automatically derived United States citizenship under 8 U.S.C. 1401, where there is no blood relationship between a person born outside the United States and his U.S. citizen parent. The Ninth Circuit determined that 8 U.S.C does not require a blood relationship between a person born outside the United States and his U.S. citizen parent. In Petitioner Ragasa s case, the laws applicable for a person born in 1966 are those after 12/24/52 and prior to 11/14/86, that in a situation where there is one citizen parent and one alien parent, his adoptive citizen father was physically present in the U.S. or its outlying possessions for 10 years. That at the time of his birth both of his adoptive parents were married and U.S. Citizens and that he was legally adopted on December 31, 1980 when he was 14 years of age. That Respondent Ragasa meets the requirements of II. THE IMMIGRATION COURT ABUSED IT S DISCRETION WHEN IT PROVIDED THAT REPONDENT WAS REMOVABLE UNDER INA 237(A)(2)(b) AND (a)(iii) OF THE Act as his STATE CONVICTION UNDER THE HAWAII DRUG STATUTES INCLUDED DRUGS THAT ARE NOT IN THE CSA Respondent s first charge of removability, was that at any time after admission, Petitioner was convicted of a violation of (or conspiracy or attempted 20

21 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 21 of 33 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 102 of the Controlled Substances Act, 21 USC 802, other than a single offense involving possession for one s own use of 30 grams or less of marijuana. Respondent denies that he is removable under INA Section 237 (a)(2)(b) (i) as amended which provides: Sec 237 (a)(2)(b)(i) a) Classes of Deportable Aliens.-Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: (2) Criminal offenses.- (B) Controlled substances.- (i) Conviction.-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 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable. 21

22 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 22 of 33 A. PETITIONER S CONVICTION ON July 28, 2008, 2011 INCLUDES DANGEROUS DRUGS THAT ARE NOT IN THE FEDERAL CONTROLLED SUBSTANCES ACT FOR THE UNITED STATES Petitioner was convicted in his Judgment of Conviction and Probation Order for violations under Hawaii Revised Statues of Attempted Promoting a Dangerous Drug in the 1 st Degree under (1) (b) and )(1)(b)(ii) which provides as follows: Criminal attempt. (1) A person is guilty of an attempt to commit a crime if the person: (a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or (b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime. And Promoting a dangerous drug in the first degree. (1) A person commits the offense of promoting a dangerous drug in the first degree if the person knowingly: (a) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of: (i) One ounce or more, containing heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or (ii) One and one-half ounce or more, containing one or more of any of the other dangerous drugs except methamphetamine; or (b) Distributes, except for methamphetamine: (i) Twenty-five or more capsules, tablets, ampules, dosage units, or syrettes containing one or more dangerous drugs; or (ii) One or more preparations, compounds, mixtures, or substances of an aggregate weight of: (A) One-eighth ounce or more, containing heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or 22

23 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 23 of 33 (B) Three-eighths ounce or more, containing any other dangerous drug; Under the Hawaii Revised Statutes the definition of DANGEROUS DRUG is found in HRS Definitions which provides: "Dangerous drugs" means any substance or immediate precursor defined or specified as a "Schedule I substance" or a "Schedule II substance" by chapter 329, or a substance specified in section (c)(13), except marijuana or marijuana concentrate. It is under Hawaii Revised Statutes Chapter 329, which lists Hawaii s Uniform Controlled Substances Act. Schedule I is found under HRS , Schedule II is found under HRS and HRS ( c ) (13 ) is part of Schedule III. B. HAWAII PROMOTING OF DANGEROUS DRUGS IN THE FIRST DECREE INCLUDES DRUGS THAT ARE NOT ON THE FEDERAL CONTROLLED SUBSTANCES ACT. Respondent was convicted on August, 2011 for Attempted PDD1. At the last court hearing DHS provided evidence which was a letter from the State of Hawaii Department of Public Safety Administrator Keith Kamita which states that State of Hawaii Schedules I and II ( HRS Section and ) were identical with the Federal Controlled Substances Act for the period of 2005 through May of However he does not state that Schedule III or specifically Section (c)(13) of Schedule III was identical to the Federal Controlled Substances Act for that same period, and a review shows 23

24 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 24 of 33 that it is NOT on the FCS list today. A Review of the Federal Control Substances Act for (13) Tiletamine/Zolazepam (Telazol, 2-(ethylamino)-2-(- thienyl)-cyclohexanone, flupyrazapon) or any salts thereof; and under the State Schedule III cannot be found in any of the Federal Schedules. Since no reference is made in the letter from the Public Safety Administrator the State Schedule III was not identical. As a result, Respondents State of Hawaii conviction should not make him removable. III. THE IMMIGRATION COURT ABUSED IT S DISCRETION WHEN IT USED PETITIONER S TRUTHFUL STATEMENTS ABOUT HIS PAST TO PREJUDICE HIS APPLICATION FOR RELIEF UNDER INA 42(A) CANCELLATION OF REMOVAL. The Immigration court abused it s discretion when it used Petitioner s statements in court as literal convictions against the Petitioner. This disqualification make the whole basis of the claim for relief under INA 42(A) when there are no aggravated felonies meaningless. The court abused it s discretion when it applied the same meaning behind aggravated felonies to disqualify Petitioner. CONCLUSION THE RECORD ESTABLISHES THAT PETITIONER IS A CHILD AS DEFINED BY INA 101(c)(1), RESPONDENT IS A U.S. CITIZEN STATUS PURSUANT TO FORMER INA 320(A). 24

25 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 25 of 33 Based on the following arguments, Petitioner derived U.S. citizenship status on December 31, 1980 pursuant to the requirements of INA 320(a) as it existed between the period of October 5, 1978 and February 27, 2001 ( Former INA 320") as a child defined by INA 101 (c)(1). Pursuant to Title 18 USC 1431, or 320 Ia) of the Immigration and Nationality Act as it existed in January 1, 1999: (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 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 unmarried and under the Age of eighteen 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 eighteen Years. (emphasis added) Respondent qualifies as a child as required by INA 320(a) and defined by INA 101(c)(1). The term child as used in fomer INA 320(a) is defined as: 25

26 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 26 of 33 Unmarried person under twenty-one years of age and includes 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 320, and 321 of title III, 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. See INA 101(c)(1). Clearly, the former INA 320 makes a distinction between child and an adopted child for the purposes of qualifying for derivative citizenship status. According to INA 320(b), an adopted child may only qualify for citizenship status if, the child is residing in the United States at the time of naturalization of such adoptive parent, in the custody of the adoptive parents, pursuant to a lawful admission for permanent residence. While former INA 320(b) requires that an adopted child reside in the U.S. at the time of naturalization of te adoptive parent, former INA 320(a)(2) allows for a child to reside with the parent at the time of naturalization or thereafter. See Id. 26

27 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 27 of 33 Clearly, there is a distinction between an adopted child who has not met the burden of INA 101(c)(1) and an adopted child who qualifies as a child under the same statue. Examples of adopted children who would not qualify as a child for purposes of former INA 320(a) are children adopted at the age of 16 and above or children adopted outside of the United States. In these instances, INA 320(b) would be the applicable statute for deriving U.S. citizenship. However, in the case at hand, Petitioner began residing in the U.S. under the legal custody of Alejandrino and Cleofe Ragasa as of November 8, He was officially adopted under Hawaii legal authority on December 31, As required by INA 101( c ), Petitioner was under the age of 16 at the time he was adopted. Therefore, Petitioner met the requirements to be considered a child for the purposes of INA 320(a) derivative citizenship status. Based on the argument stated above regarding U.S. Citizenship and the Argument s presented on the inclusion of drugs in the State of Hawaii s list of illegal drugs not found in the CSA Petitioner s case should have been terminated. Also there was an abuse of discretion by the Immigration 27

28 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 28 of 33 court in using statements by Petitioner as virtual convictions of an aggravated felony to deny Petitioner his claim to relief. DATED: Honolulu, Hawaii, March 18, 2013 Respectfully submitted, /s/ M. CORA AVINANTE M. CORA AVINANTE Law Office of M. Cora Avinante 550 Halekauwila Street, Suite 304 Honolulu, Hawaii Telephone: (808) Facsimile: (808) Attorney for Petitioner CRISANTO CARINO RAGASA 28

29 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 29 of 33 CERTIFICATE OF COMPLIANCE I certify that, pursuant to Federal Rules of Appellate Procedure Rule 32(a)(7)(A) and Circuit Rule 32-1, Petitioner s Opening Brief is proportionately spaced, has a typeface of 14 points, contains 6438 words and has 29 pages (which is less than the 30 page limit and complies with FRAP Rule 32(a)(7)(B) and (C). Dated: Honolulu, Hawaii, March 18, 2013 /s/ M. CORA AVINANTE M. CORA AVINANTE 550 Halekauwila Street Suite #304 Honolulu, Hawaii Phone No: Fax No: MC122550@aol.com Attorney for Petitioner CRISANTO CARINO RAGASA 29

30 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 30 of 33 STATEMENT OF RELATED CASES PURSUANT TO CIRCUIT RULE Counsel for the Petitioner CRISANTO CARINO RAGASA, is not aware of any related cases before this Court. DATED this 18 th day of March /s/ M. CORA AVINANTE M. CORA AVINANTE 550 Halekauwila Street Suite #304 Honolulu, Hawaii Phone No: Fax No: Attorney for Petitioner CRISANTO CARINO RAGASA 30

31 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 31 of 33 STATEMENT OF CUSTODY STATUS Petitioner is detained, and were not physically removed to Philippines as Petitioner CRISANTO CARINO RAGASA, and is detained at the Hawaii Federal Detention Center. Dated: Honolulu, Hawaii, March 18, 2013 /s/ M. CORA AVINANTE M. CORA AVINANTE 550 Halekauwila Street Suite #304 Honolulu, Hawaii Phone No: Fax No: Attorney for Petitioner CRISANTO CARINO RAGASA 31

32 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 32 of 33 CERTIFICATE OF SERVICE I certify that on I electronically filed the foregoing OPENING BRIEF FOR PETITIONER with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. There are no unregistered participants Dated this 18th day of March, Respectfully Submitted, /s/ M. CORA AVINANTE M. CORA AVINANTE 550 Halekauwila Street Suite #304 Honolulu, Hawaii Phone No: Fax No: MC122550@aol.com Attorney for Petitioner CRISANTO CARINO RAGASA 32

33 Case: /18/2013 RESTRICTED ID: DktEntry: 7-2 Page: 33 of 33 33