Brahms-Garcia v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE RAMON BRAHMS-GARCIA, No. 21-1238 Agency No. Petitioner, A200-685-986 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 13, 2023** Seattle, Washington Before: GRABER, GOULD, and PAEZ, Circuit Judges. Jose Ramon Brahms-Garcia petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) denial of his application for cancellation of removal under 8 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1229b(b). He contends that the BIA and IJ erred in finding that he was ineligible for nonpermanent resident cancellation of removal on account of having been “convicted of an offense [described] under” 8 U.S.C § 1182(a)(2)(C)(i), which sets forth grounds of inadmissibility. 8 U.S.C. § 1229b(b)(1)(C). Brahms-Garcia argues that the amended information, the judgment, and his guilty plea to criminal solicitation to commit delivery of methamphetamine under Washington Revised Code (“RCW”) sections 9A.28.030 and 69.50.401(1), (2)(b), do not show that he engaged in conduct described in § 1182(a)(2)(C)(i), which prohibits participation in illicit drug trafficking. He asserts that his criminal offense is not covered by § 1182(a)(2)(C)(i) because the Immigration and Nationality Act’s (“INA”) definition of illicit drug trafficking does not encompass solicitation to deliver controlled substances.1 Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review “any final order of removal against [a noncitizen] who is removable by reason of having committed a criminal offense covered in section 1182(a)(2),” including illicit 1 Brahms-Garcia also argues that we should apply the framework from Matter of Medina-Jimenez, 27 I&N Dec. 399 (BIA 2018), to determine whether he is ineligible for cancellation of removal under § 1229b(b)(1)(C). We disagree. The BIA was not required to apply Medina-Jimenez here because that case pertains only to offenses described under 8 U.S.C. § 1227(a)(2)(E)(ii). Id. at 401–03. Neither the BIA nor this court has required this framework for any of the other statutory offenses listed in § 1229b(b)(1)(C). See id; Diaz-Quirazco v. Barr, 931 F.3d 830, 841–45 (9th Cir. 2019). 2 21-1238 trafficking. See Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1208–11 (9th Cir. 2004). We retain jurisdiction, however, to determine our own jurisdiction, id., and may review constitutional claims and questions of law, 8 U.S.C. §1252(a)(2)(D). We deny the petition. 1. To determine whether we have jurisdiction to review Brahms-Garcia’s final order of removal, we must first address whether the agency correctly found that Brahms-Garcia is “removable by reason of having committed a criminal offense covered in” § 1182(a)(2)(C)(i). Lopez-Molina, 368 F.3d at 1208–11. Under § 1182(a)(2)(C)(i), a noncitizen who “the consular officer or the Attorney General knows or has reason to believe . …

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