Jesus Canedo-Duarte v. Eric Holder, Jr.

FILED

NOT FOR PUBLICATION FEB 13 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESUS GILBERTO CANEDO-DUARTE, No. 10-73081

Petitioner, Agency No. A098-072-755

v.

ORDER*

ERIC H. HOLDER JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted January 14, 2013** San Francisco, California

Before: NOONAN, TASHIMA, and GRABER, Circuit Judges.

* 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. Fed. R. App. P. 34(a)(2). Respondent’s Motion to Remand is GRANTED. The case is remanded to

apply In re Davey, 26 I. & N. Dec. 37 (B.I.A. 2012), as appropriate.

The parties shall bear their own fees and costs on appeal. This order shall

serve as the mandate of this court.

1 The dissent asserts that we are implicitly approving In re Davey "as properly decided." We are not. The government has asked for an…

ORDER **

Respondent’s Renewed Motion to Remand is GRANTED. The case is remanded to apply In re Davey, 26 I. & N. Dec. 37 (B.I.A.2012), as appropriate.

The parties shall bear their own fees and costs on appeal. This order shall serve as the mandate of this court.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

. The dissent asserts that we are implicitly approving In re Davey "as properly decided." We are not. The government has asked for an opportunity to allow the BIA to reconsider this case. On reconsideration, the BIA may apply In re Davey, or it may choose to decide the case on other grounds, in which event any substantive decision that we might make about In re Davey would be premature. Moreover, even if the BIA decides to apply In re Davey here, and one of the parties petitions for review, then we can review the concrete application of that rule to an issue that the BIA will have decided in this case.

dissenting:

I dissent from the Order because of its highly questionable methodology and assumptions.

The primary issue involved in this petition for review is whether petitioner’s drug paraphernalia conviction under Arizona law is a drug related conviction under 8 U.S.C. § 1227 (a)(2)(B)(i), such that it renders petitioner removable. The BIA held that it was and petitioner petitioned for review of that decision. Shortly before the calendared date for oral argument, the government moved to remand this case to the BIA for application of In re Davey, 26 I & N Dec. 37 (B.I.A.2012). Petitioner opposes the remand motion.

*632 The Order grants the motion and directs that “[t]he case is remanded [to the BIA] to apply In re Davey .It is necessarily implicit in the Order that we are approving In re Davey as properly decided and, therefore, entitled to Chevron deference as a reasonable interpretation of an ambiguous statute. Why else would we order the BIA “to apply In re Davey”! Yet, we have done so without examining the case, without providing any analysis or rationale for our decision and, indeed, even without any briefing or argument by the parties.

Moreover, In re Davey has…