FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NOE MEDINA-RODRIGUEZ, AKA No. 19-72681 Eloy Medina-Rodriguez, AKA Noe Rodrigues-Medina, Agency No. Petitioner, A041-848-597 v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 9, 2020 Pasadena, California Filed October 30, 2020 Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and KATHLEEN CARDONE, * District Judge. Opinion by Judge Milan D. Smith, Jr. * The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 2 MEDINA-RODRIGUEZ V. BARR SUMMARY ** Immigration Denying Noe Medina-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) in determining whether a state conviction is a categorical match for its federal counterpart, the proper point of comparison are the two drug schedules in effect at the time of the conviction; 2) Medina-Rodriguez’s 2011 conviction for possession for sale of marijuana, in violation of California Health & Safety Code § 11359, was a drug trafficking aggravated felony because the state and federal schedules defined marijuana the same way at the time of his conviction; and 3) substantial evidence supported the agency’s denial of deferral of removal under the Convention Against Torture (CAT). The panel concluded that it was bound by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014), in which the court held that a conviction under § 11359 was a drug trafficking aggravated felony because § 11359 was a categorial match to a federal marijuana offense under 21 U.S.C. § 841(a)(1). The panel also concluded that, even if it were not bound, neither of the two California decisions Medina-Rodriguez relied on supported his argument that Roman-Suaste should be considered en banc. Medina-Rodriguez also contended that § 11359 is broader than the generic federal offense because the 2011 ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MEDINA-RODRIGUEZ V. BARR 3 definition of marijuana pursuant to California law includes types of marijuana not criminalized pursuant to current federal law. The panel noted that precedent demands (and the parties agreed) that the California definition of marijuana at the time of Medina-Rodriguez’s conviction was appropriate for the categorical analysis comparison. However, the parties disagreed about whether the federal definition of marijuana to be applied should be that at the time of Medina-Rodriguez’s conviction, or at the time of his removal. Joining the Second, Third, and Eleventh Circuits, the panel held that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner’s underlying criminal offense, not at the time of the petitioner’s removal. The panel explained that the Supreme Court has assumed that the time-of-conviction federal drug schedule is the appropriate one for the categorical approach comparison, and that such a rule ...
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