Souvanh Saengvilay v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUVANH SAENGVILAY,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73259
Agency No. A071-439-103
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2022**
Phoenix, Arizona
Before: WARDLAW and BUMATAY, Circuit Judges, and ZOUHARY,***
District Judge.
* 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).
*** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED
DEC 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Souvanh Saengvilay, a native and citizen of Laos, petitions for review of the
Board of Immigration Appeals’ (BIA) decision affirming an immigration judge’s
(IJ) removability determination and discretionary denial of cancellation of
removal. As the parties are familiar with the facts, we do not restate them here.
We lack jurisdiction to consider Saengvilay’s claims and dismiss the
petition. First, Saengvilay was convicted of a criminal offense covered by 8
U.S.C. § 1227(a)(2)(B)(i), and we therefore lack jurisdiction to review his final
order of removal. Id. § 1252(a)(2)(C); Randhawa v. Ashcroft, 298 F.3d 1148, 1152
(9th Cir. 2002) (holding that we retain jurisdiction to determine whether this
jurisdictional bar applies). Second, although we have jurisdiction to consider
whether the IJ applied the correct legal standard—a question of law raised in the
context of a discretionary denial of cancellation—because the IJ applied the correct
legal standard, we “must conclude that [Saengvilay’s] claims are ‘so insubstantial
and frivolous’ as to preclude our jurisdiction over them.” Mendez-Castro v.
Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (quoting Barco-Sandoval v. Gonzalez,
516 F.3d 35, 40 (9th Cir. 2007)).
1. The IJ faithfully applied the categorical approach set forth in Taylor v.
United States, 495 U.S. 575, 600–02 (1990) to conclude that section 11358(c) of
the California Health and Safety Code is a crime “relating to a controlled
substance.” 8 U.S.C. § 1227(a)(2)(B)(i). There is a “logical or causal connection”

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between the least of the acts criminalized under section 11358(c) of the California
Health and Safety Code, and marijuana, a controlled substance defined in the
Controlled Substances Act, 21 U.S.C. §§ 802(16) (defining “marihuana”), 812
Schedule I (c)(10) (listing marijuana in schedule of controlled substances).
Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009). A conviction under
section 11358(a) requires that an individual physically handle at least six living
marijuana plants. In Mielewcyzck, we remarked that “[e]ven offenses that do not
require personal contact with the drug have the requisite connection.” Id. Here,
personal contact is required, and the conduct proscribed by section 11358(a) easily
satisfies the “broad[]” construction we give to “laws specifically aimed at
controlled substance activity[.]” Id. Saengvilay has been convicted of more than
one controlled substance-related offense and therefore cannot assert the personal-
use exception under 8 U.S.C. § 1227(a)(2)(B)(i). Rodriguez v. Holder, 619 F.3d
1077, 1079–80 (9th Cir. 2010).
In light of our holding that Saengvilay was convicted of an offense covered
by 8 U.S.C. § 1227(a)(2)(B)(i), we lack jurisdiction to review his final order. Id. §
1252(a)(2)(C).
2. Saengvilay fails to raise a colorable legal claim regarding the agency’s
discretionary denial of cancellation of removal. We have jurisdiction to consider
“whether an IJ failed to apply a controlling standard governing a discretionary

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determination” and determine whether such claim is “colorable.” Mendez-Castro,
552 F.3d at 979; 8 U.S.C. § 1252(a)(2)(D). The record does not support
Saengvilay’s contention that the IJ required a showing of rehabilitation as a
“prerequisite” for cancellation. The IJ remarked that “significant evidence of
rehabilitation is warranted to offset [Saengvilay]’s criminal history,” but did not
make this a dispositive factor or threshold inquiry. See Matter of Edwards, 20 I. &
N. Dec. 191, 196 (BIA 1990); In re Sotelo-Sotelo, 23 I. & N. Dec. 201, 204 (BIA
2001) (“[W]e reiterate that we will not apply a threshold test in cancellation of
removal cases. Instead, we will weigh the favorable and adverse factors to
determine whether, on balance” a noncitizen “warrants a favorable exercise of
discretion”) (citation omitted). Rehabilitation was one of several factors the IJ
weighed alongside positive and negative factors, such as Saengvilay’s family ties,
long-term residence in the United States, and criminal history. “Because the IJ
applied the correct legal standard in this case . . . , we must conclude that
[Saengvilay’s] claims are ‘so insubstantial and frivolous’ as to preclude our
jurisdiction over them.” Mendez-Castro, 552 F.3d at 980 (quoting Barco-Sandoval
v. Gonzalez, 516 F.3d 35, 40 (9th Cir. 2007)).
3. We also lack jurisdiction to consider Saengvilay’s arguments that the
IJ improperly weighed evidence of rehabilitation or abused its discretion in finding
his testimony credible in some respects and not others. Mejia v. Gonzalez, 499

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F.3d 991, 999 (9th Cir. 2007) (holding that 8 U.S.C. § 1252(a)(2)(B)(i) precludes
review of petitioner’s claim that “the BIA[] fail[ed] to consider his extensive
rehabilitation” in context of inadmissibility waiver); Patel v. Garland, 142 S. Ct.
1614, 1624 (2022) (same for challenge to credibility determination).1
PETITION DISMISSED.
1 Saengvilay’s motion for stay of removal pending our review of his case is denied
as moot.

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