John Morla Bumatay v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN MORLA BUMATAY,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-74044
Agency No. A046-564-058
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2019**
Honolulu, Hawaii
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
1. The Board of Immigration Appeals (BIA) correctly determined that John
Bumatay is removable based on his conviction for a controlled substance offense.
See 8 U.S.C. § 1227(a)(2)(B)(i). Bumatay was convicted under a Hawaii statute
prohibiting the knowing possession of certain drugs. Haw. Rev. Stat.
* 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. See Fed. R. App. P. 34(a)(2).
FILED
OCT 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 712-1243(1). Although that statute criminalizes the possession of at least two
drugs that are not similarly proscribed by the Controlled Substances Act, the
Hawaii statute is divisible based on the drug at issue. See Ragasa v. Holder, 752
F.3d 1173, 1176 (9th Cir. 2014). Here, under the modified categorical approach, it
is apparent that the drug underlying Bumatay’s conviction was methamphetamine,
a substance covered by the Controlled Substances Act. See 21 U.S.C. § 812(c).
Count One of the amended felony information charged Bumatay with
knowing possession of “methamphetamine,” and the judgment of conviction
reflects that he pleaded guilty to that count. The relevant conviction documents
refer to only one substance, so no reasonable possibility exists that Bumatay’s
conviction was based on the possession of another drug. United States v.
Leal-Vega, 680 F.3d 1160, 1169 (9th Cir. 2012). The fact that the relevant
conviction documents contain references to different police report numbers is
irrelevant to the analysis under the modified categorial approach.
2. Bumatay appears to challenge the immigration judge’s denial of his
application for cancellation of removal. Because Bumatay failed to raise that
challenge before the BIA, we lack jurisdiction to consider it. See 8 U.S.C.
§ 1252(d)(1); Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED IN PART and DISMISSED IN
PART.

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