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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE RAMON BRAHMS-GARCIA, No. 21-1238 Agency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.

§ 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 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 . . . [1] is or has been an illicit trafficker in any controlled substance . . . or [2] is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled . . . substance . . . or endeavored to do so” is inadmissible. See also Gomez-Granillo v. Holder, 654 F.3d 826, 831 (9th Cir. 2011) (interpreting “a knowing aider, abettor, assister, conspirator, or colluder with others” to signify a knowing “particip[ant]” in the traffic of illicit drugs). In reviewing whether substantial evidence supports the agency’s determination that a noncitizen is inadmissible under § 1182(a)(2)(C)(i), we look to whether the decision rests on “reasonable, substantial, and probative evidence.” Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000).

Moreover, Brahms-Garcia’s solicitation of delivery of methamphetamine gave the agency adequate reason to believe that he had participated in illicit drug trafficking. See Hamid v. INS, 538 F.2d 1389, 1390–91 (9th Cir. 1976) (per curiam) (concluding that a noncitizen’s conduct in asking an individual to carry hashish into the United States provided a “sound basis” to believe that he was a “trafficker” under § 1182(a)(2)(C)(i)).2 Substantial evidence supports the agency’s determination that Brahms-Garcia is inadmissible under § 1182(a)(2)(C)(i) and, thus, removable for having committed a criminal offense covered therein.

2. Therefore, our jurisdiction to review Brahms-Garcia’s final order of removal is limited to questions of law and constitutional matters. 8 U.S.C.

§1252(a)(2)(D). Because Brahms-Garcia does not contest that he was convicted of criminal solicitation to commit delivery of methamphetamine, but rather challenges whether his conviction legally satisfies the definition “of an offense [described] under” § 1182(a)(2)(C)(i) for purposes of § 1229b(b)(1)(C), he raises a legal question. See Orellana v. Barr, 967 F.3d 927, 932 (9th Cir. 2020) (“Questions of law include the application of law to undisputed or established facts.”).

Our jurisdiction is also limited under 8 U.S.C. § 1252(a)(2)(B)(i) because we may not review agency factual findings when reviewing a claim for discretionary relief, including applications for cancellation of removal. Patel v. Garland, ––– U.S. ––––, 142 S. Ct. 1614, 1621–22 (2022). However, as noted above, we have jurisdiction to review legal and constitutional questions pertaining to cancellation of removal. 8 U.S.C. § 1252(a)(2)(D); see also Ochoa v. Garland, 71 F.4th 717, (9th Cir. 2023) (noting that, if the question regarding discretionary relief does not pertain to “historical fact,” but “can be answered in a law library,” we have jurisdiction under § 1252(a)(2)(D).). Accordingly, we consider whether Brahms- Garica met his burden of proving that his conviction does not meet the statutory definition “of an offense [described] under” § 1182(a)(2)(C)(i) and, thus, that the BIA erred in finding him ineligible for cancellation of removal. See 8 U.S.C. § 1229a(c)(4)(A)(i).

PETITION FOR REVIEW DENIED.