Nathaniel Flores Pazcoguin v. Donald A. Radcliffe, District Director Immigration and Naturalization Service

292 F.3d 1209 Nathaniel Flores PAZCOGUIN, Petitioner, v. Donald A. RADCLIFFE, District Director; Immigration and Naturalization Service, Respondents. No. 00-70595. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 5, 2001. Filed June 25, 2002. COPYRIGHT MATERIAL OMITTED James A. Stanton, Honolulu, HI, for the petitioner. Jeffrey J. Bernstein, United States Department of Justice, Washington, DC, for the respondents. Before: THOMPSON, O'SCANNLAIN, and BERZON, Circuit Judges. Opinion by Judge DAVID R. THOMPSON; Dissent by Judge BERZON. DAVID R. THOMPSON, Circuit Judge. 1 Petitioner Nathaniel Flores Pazcoguin petitions for review of the Board of Immigration Appeals' ("BIA") final order of deportation, finding him excludable from the United States because he: (1) admitted acts that constitute the essential elements of a controlled substance violation, Immigration and Nationality Act ("INA") § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182 (a)(2)(A)(i)(II); and (2) was an alien without a valid immigrant visa, INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182 (a)(7)(A)(i)(I). 2 We have jurisdiction under 8 U.S.C. § 1105a(a), as amended by section 309(c)…

Opinion by Judge DAVID R. THOMPSON; Dissent by Judge BERZON.

Petitioner Nathaniel Flores Pazcoguin petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of deportation, finding him excludable from the United States because he: (1) admitted acts that constitute the essential elements of a controlled substance violation, Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II), 8 U.S.C. § U82(a)(2)(A)(i)(II); and (2) was an alien without a valid immigrant visa, INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182 (a)(7)(A)(i)(I).

We have jurisdiction under 8 U.S.C. § 1105a(a), as amended by section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See Avetova-Elisseva v. INS, 213 F.3d 1192 , 1195 n. 4 (9th Cir. 2000). 1 Our jurisdiction is not foreclosed *1212 by IIRIRA § 309(c)(4)(G) which precludes judicial review in cases where an alien is inadmissible or deportable by reason of having committed a controlled substance offense. See Alfaro-Reyes v. INS, 224 F.3d 916 , 921-22 (9th Cir.2000); Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir.1999). We have repeatedly held that we retain jurisdiction to determine whether…

dissenting.

By applying burden of proof concepts applicable at trial, the majority interprets INA § 212(a)(2)(A)®, 8 U.S.C. § 1182 (a)(2)(A)(i), to exclude from this country individuals who have not actually admitted committing any crime. Under the majority’s approach, for example, someone who assaulted another in self-defense could be excluded, as long as the law of the country where the assault occurred made self-defense an affirmative defense at trial. Because Pazcoguin did not admit to using marijuana without authorization of law, and therefore may not have committed any crime, I respectfully dissent from the majority’s conclusion that he is excludable.

Additionally, the BIA’s decisions permit the use of only those admissions made after an alien has been fully informed about the legal requirements governing conviction of the crime to which he then admits. I would hold that the BIA abused its discretion by relying on an uninformed admission in violation of its own precedent.

1. “Essential Elements”

Section 212(a)(2)(A)(i) classifies as “inadmissible” (with certain exceptions and discretionary waivers not relevant here):

Id. The majority bases its holding that Pazcoguin is…