NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAMON ROBERTO HUERTA-FLORES, No. 10-73389
Petitioner, Agency No. A092-444-014
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 9, 2014
San Francisco, California
Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.**
Petitioner Ramon Roberto Huerta-Flores is an alien charged with being
removable for having been convicted of a controlled substances offense. See 8
U.S.C. § 1227(a)(2)(B)(i). The BIA applied the categorical approach and found
him removable on the basis of his Arizona conviction for conspiracy to sell a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
narcotic drug under Arizona Revised Statutes (“A.R.S.”) § 13-3408(A)(7). In light
of Ragasa v. Holder, No. 12-72262, — F.3d —, 2014 WL 1661491 (9th Cir. Apr.
28, 2014), amended by 2014 WL 2498950 (9th Cir. June 4, 2014), we grant
Huerta-Flores’s petition for review and remand for further proceedings consistent
with this disposition.
In Ragasa we were faced with the same mismatch between the federal and
state lists of controlled substances present here: the inclusion of benzylfentanyl and
thenylfentanyl in the state list but not in the federal list. See id. at *2 (comparing
Hawaii list with federal list). Compare A.R.S. § 13-3401(20), with 21 C.F.R.
§§ 1308.11–.15. The court held that the petitioner was not categorically removable
under 8 U.S.C. § 1227(a)(2)(B)(i) because of this mismatch. Ragasa, 2014 WL
1661491, at *2. For the same reason, Huerta-Flores’s petition must be granted.
Unlike Ragasa, it appears that documents in the record of this case may
reflect the substances involved in Huerta-Flores’s conviction. The BIA’s decision
did not discuss application of the modified categorical approach. We leave that
question to its consideration in the first instance on remand. Huerta-Flores may
present his arguments against application of the modified categorical approach to
the BIA.
PETITION FOR REVIEW GRANTED; REMANDED.
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