April 28, 2014
CRISANTO CARINO RAGASA, Petitioner,
ERIC H. HOLDER, JR., Attorney General, Respondent
Argued and Submitted, University Of Hawaii, Manoa
February 20, 2014
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A037-485-221.
M. Cora Avinante (argued), Law Office of M. Cora Avinante, Honolulu, Hawai'i, for Petitioner.
Theodore William Atkinson (argued), Trial Attorney; Stuart F. Delery, Acting Assistant Attorney General; Ernesto H. Molina, Assistant Director; S. Nicole Nardone, Trial Attorney, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: Michael Daly Hawkins, M. Margaret McKeown, and Carlos T. Bea, Circuit Judges. Opinion by Judge McKeown.
McKEOWN, Circuit Judge:
Crisanto Ragasa was born in the Philippines in 1966 to two married Filipino citizens (his " biological parents" ). At the age of fourteen, he immigrated to the United States and was adopted by his uncle and aunt (his " adoptive parents" ), both naturalized U.S. citizens. Years later in 2008, Ragasa was convicted in Hawai'i state court for " Attempted Promoting a Dangerous Drug in the First Degree," in violation of Haw. Rev. Stat. § § 705-500(1)(b), 712-1241(1)(b)(ii). The government initiated immigration proceedings against Ragasa, a lawful permanent resident, charging him as a removable alien because of his drug-related conviction. The immigration judge (" IJ" ) ordered Ragasa removed, and the Board of Immigration Appeals (" BIA" ) dismissed his appeal from the IJ's removal order and denial of his application for cancellation of removal. Ragasa timely petitions for review of the BIA's decision. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition.
I. Citizenship Claim
Contrary to his view, Ragasa did not automatically acquire U.S. citizenship from his adoptive parents under former Section 320 and 301(a)(7) of the Immigration and Nationality Act (" INA" ). In analyzing this issue de novo, we look to " the law in effect at the time the critical events giving rise to eligibility occurred," which in this case are the dates of Ragasa's birth (1966), his entry into the United States (1980), and his adoption (1980). Minasyan v. Gonzales, 401 F.3d 1069, 1074-75 (9th Cir. 2005).
To begin, as an adopted child, Ragasa does not acquire citizenship under former Section 320(b) because he was neither " residing in the United States" nor " in the custody of his adoptive parents" at the time they naturalized. An Act to Amend the INA, Pub. L. No. 95-417, 92 Stat. 917 (1978) (codified at 8 U.S.C. § 1431 (Supp. 1978)). Nor does Ragasa qualify for citizenship under former Section 320(a) because Section 320(b), not Section 320(a), applies to adopted children. Id. Ragasa's contrary view rests on an interpretation of the statute that ignores the statutory text and renders Section 320(b) superfluous.
Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 966 (9th Cir. 2013) (" It is a well-established rule of statutory construction that courts should not interpret statutes in a way that renders a provision superfluous." ).
Ragasa's citizenship claim under former Section 301(a)(7) is equally unavailing because that section requires one parent to be a U.S. citizen at the time of the child's birth outside of the United States and the other to be an alien. An Act to Amend Section 301(a)(7) of the INA, Pub. L. No. 89-770, 80 Stat. 1322 (1966) (codified at 8 U.S.C. § 1401(a)(7) (Supp. 1966)). Neither of Ragasa's biological parents was a U.S. citizen when he was born. Although Ragasa's adoptive parents were naturalized U.S. citizens at the time of his birth, they did not become his legal parents until fourteen years later. Hence, Ragasa cannot obtain citizenship through his adoptive parents under former Section 301(a)(7).
Neither of the cases cited by Ragasa-- Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) and Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005)--supports his argument that a foreign-born child, whose biological parents were not U.S. citizens at the time of his birth, obtains citizenship under Section 301(a)(7) through a subsequent adoption by U.S. citizens. Unlike in those cases, Ragasa was not " born into a marital relationship between a citizen and an alien." Martinez-Madera v. Holder, 559 F.3d 937, 941 (9th Cir. 2009); see Solis-Espinoza, 401 F.3d at 1091; Scales, 232 F.3d at 1161-62; see also Marquez-Marquez v. Gonzales, 455 F.3d 548, 559 (5th Cir. 2006) (distinguishing Scales and Solis-Espinoza because neither of " petitioner's biological parents was married to a U.S. citizen at the time of the petitioner's birth " ). We therefore deny Ragasa's citizenship claim.
Nevertheless, we conclude on de novo review that Ragasa is not removable as charged because his state conviction does not constitute a predicate offense for purposes of removability under Section 237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i). See Mielewczyk v. Holder, 575 F.3d 992, 994-95 (9th Cir. 2009). To establish removability under Section 237(a)(2)(B)(i), the government must prove that the drug underlying Ragasa's state conviction is covered by Section 102 of the federal Controlled Substances Act (" CSA" ). Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir. 2007), abrogated on other grounds by Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011). In determining whether the government has discharged this burden, we employ the analytical framework established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607
(1990), turning first to the categorical approach. Mielewczyk, 575 F.3d at 994.
Under the categorical approach, we examine " only the statutory definition of the crime to determine whether the state statute of conviction renders an alien removable under the statute of removal," id., without looking to the actual conduct underlying the petitioner's offense. Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw. Rev. Stat. § § 329-14(b)(56) & (57) (2003); Haw. Rev. Stat. § 712-1240 (2004); Haw. Rev. Stat. § 712-1241(1)(b)(ii) (2006), with 21 U.S.C. § 812; 21 C.F.R. § § 1308.11-15.
The categorical approach does not end our inquiry. Because the statute of conviction " identifies a number of controlled substances by referencing various [state] drug schedules and statutes and criminalizes the possession of any one," it is a " divisible" statute, and we may resort to the modified categorical approach to determine whether Ragasa's crime of conviction is a removable offense. See Coronado v. Holder, 747 F.3d 662, No. 11-72121, 2014 WL 983621, at *3-5 (9th Cir. Mar. 14, 2014) (citing Descamps v. United States, 133 S.Ct. 2276, 2281, 2283-85, 186 L.Ed.2d 438 (2013)). Under the modified categorical approach, we review " a limited set of documents in the record of conviction: the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings." Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005) (internal quotation marks omitted). As the government candidly acknowledged during oral argument, the documents of conviction in the record do not establish that Ragasa's state conviction involved a controlled substance listed in the CSA. Because the government has not carried its burden of proving Ragasa's removability by clear and convincing evidence, we grant the petition and vacate the order of removal. See Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th Cir. 2004).