Jose Prides Medina v. John Ashcroft, Attorney General

393 F.3d 1063 Jose Prides MEDINA, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 03-71966. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 3, 2004. Filed January 4, 2005. Vicenta E. Montoya, Las Vegas, NV, for the petitioner. Susan K. Houser, Jennifer Levings, Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ahe-vxt-tcn. Before CANBY, RYMER, and HAWKINS, Circuit Judges. Opinion by Judge CANBY; Dissent by Judge RYMER. OPINION CANBY, Circuit Judge. 1 Jose Valdes Medina 1 is a permanent resident of this country, having been admitted as an immigrant from Cuba in 1976. He petitions for review of an order of removal entered by an immigration judge (IJ) and affirmed without opinion by a single member of the Board of Immigration Appeals. 2 The IJ ordered Medina's removal because the State of Nevada convicted him of attempting to be under the influence of a controlled substance — namely, THC-carboxylic acid. 3 2 The government may remove Medina if his Nevada conviction "relat[es] to a controlled substance (as…

Opinion by Judge CANBY; Dissent by Judge RYMER.

OPINION

Jose Valdes Medina 1 is a permanent resident of this country, having been admitted as an immigrant from Cuba in 1976. He petitions for review of an order of removal entered by an immigration judge (IJ) and *1065 affirmed without opinion by a single member of the Board of Immigration Appeals. 2 The IJ ordered Medina’s removal because the State of Nevada convicted him of attempting to be under the influence of a controlled substance — namely, THC-car-boxylic acid.

The government may remove Medina if his Nevada conviction “relat[es] to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227 (a)(2)(B)(i). If Medina was removable under this provision, we have no jurisdiction to review his removal. See 8 U.S.C. § 1252 (a)(2)(C). If he is not removable for a controlled substance offense, then we have jurisdiction and he necessarily prevails. Thus “the jurisdictional question and the merits collapse into one.” Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).

We conclude that Medina is not…

dissenting.

The majority’s opinion turns on its view that “Medina has been ordered removed from this country because he personally used a small amount of marijuana.” Maj. op. at 71. The problem is, this is not at all why Medina was ordered removed. He was ordered removed based on his controlled substance conviction for the offense of attempting to be under the influence of THC-carboxylic acid in violation of Nev. Rev.Stat. §§ 193.330 and 453.411. THC is listed as a controlled substance on both the Nevada schedule of controlled substances and the federal schedule — and it is listed separately from marijuana. See 21 U.S.C. §§ 802 , 812; compare § 812(c) Sch. I(c)(10) with § 812(c) Sch. I(c)(17); see also Nev. Admin. Code § 453.510 . The definition of THC in these schedules encompasses THC-carboxylic acid. 1 In my view, this satisfies the government’s burden of proving that Medina was convicted of a controlled substance violation other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.

Medina’s argument that THC-carboxylic acid is a metabolite in the body and can be caused by marijuana ingestion does nothing to undercut this; at best it…