Peter Thomas v. Eric Holder, Jr.

MEMORANDUM

Thomas is an HIV-positive bisexual Grenadian citizen who has lived in the United States legally since 1996. In 1999, he pleaded guilty to the transportation or sale of a controlled substance under California law; the plea colloquy makes clear that the underlying crime was sale of cocaine base. The total amount of the sale was $10. Thomas was sentenced to 180 days in county jail, three years probation, and a $200 fíne. Over ten years later, the government began removal proceedings under 8 U.S.C. § 1227 (a)(2)(B)© against Thomas based on this conviction. After the proceedings began, Thomas had his conviction expunged under California Penal Code § 1203.4. The IJ held Thomas removable and ineligible for relief from removal. The IJ found that the conviction was still applicable for purposes of immigration law and that the conviction was for a particularly serious crime, applying the presumption enunciated in Matter of Y-L-, 23 I. & N. Dec. 270 (B.I.A.2002), that all drug trafficking crimes are particularly serious crimes. The BIA affirmed, and Thomas appealed.

We review the IJ’s decision as if it were that of the BIA where the BIA cites Matter of Burbano, 20 I. & N. Dec.…