FILED
NOT FOR PUBLICATION MAR 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PETER F. THOMAS, No. 11-70289
Petitioner, Agency No. A073-451-788
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 January 8, 2013
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and
HELLERSTEIN, Senior District Judge.**
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior United States District
Judge for the Southern District of New York, sitting by designation.
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 fine. Over ten years later, the government began removal
proceedings under 8 U.S.C. § 1227(a)(2)(B)(i) 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. 872 (B.I.A. 1994), and adopts the IJ’s decision.
Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005). Where the BIA
summarily affirms an IJ’s decision and does not expressly state that it is
conducting a de novo review, we may “also look to the IJ’s oral decision as a guide
to what lay behind the BIA’s conclusion.” Avetova-Elisseva v. I.N.S., 213 F.3d
1192, 1197 (9th Cir. 2000). Here the BIA cited Matter of Burbano with respect to
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the IJ’s decision that Thomas is removable for his conviction for sale of a
controlled substance and the IJ’s conclusion that Thomas was convicted of an
aggravated felony. The BIA agreed in a summary disposition with the IJ’s
determination that Thomas was convicted of a particularly serious crime.
The BIA erred in retroactively applying the rule from Matter of Y-L-, which
created a presumption that any drug trafficking crime is a particularly serious
crime. In Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir. 2007), we
applied the five-factor test articulated in SEC v. Chenery Corp., 332 U.S. 194, 203
(1947), to hold that the BIA’s presumption that all drug trafficking crimes are
“particularly serious” could not be applied retroactively to Miguel-Miguel. The
facts in Miguel-Miguel are virtually indistinguishable from the present facts;
applying the factors to Thomas, there is no question that the BIA erred in the
retroactive application of the presumption of Matter of Y-L-. The government
agrees and acknowledges that remand is appropriate on this ground.
Thomas’s remaining claims lack merit.
Petition GRANTED and REMANDED.
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