Alejandro Garcia-Andrade v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO GARCIA-ANDRADE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 15-71749
Agency No. A091-857-082
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Alejandro Garcia-Andrade, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his applications for cancellation of removal
and adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review
* 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
AUG 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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de novo questions of law, including claims of due process violations in
immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We
deny the petition for review.
The agency properly denied cancellation of removal and adjustment of
status, where Garcia-Andrade failed to meet his burden of proof to establish that
his conviction under California Health & Safety Code (“CHSC”) section 11550(a)
is not a controlled substance violation that renders him ineligible for these forms of
relief. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C), 1255(i)(2)(A); see
also Pereida v. Wilkinson, 141 S. Ct. 754, 766 (2021) (an applicant for relief from
removal cannot establish eligibility where a conviction record is inconclusive as to
which elements of a divisible statute formed the offense); Tejeda v. Barr, 960 F.3d
1184, 1186 (9th Cir. 2020) (holding CHSC § 11550(a) is divisible with regard to
substance); Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir. 2018) (Federal First
Offender Act (“FFOA”) treatment “only applies to first time drug offenders
convicted of simple possession of a controlled substance”).
Garcia-Andrade’s equal protection and due process arguments fail, where
Garcia-Andrade entered his plea thirteen years before FFOA treatment was
extended to vacated convictions for being under the influence of a controlled
substance and that extension has since been overruled. See Nunez-Reyes v. Holder,
646 F.3d 684, 690, 695 n.7 (9th Cir. 2011) (holding that “equal protection does not

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require treating, for immigration purposes, an expunged state conviction of a drug
crime the same as a federal drug conviction that has been expunged under the
FFOA” and considering that there was no evidence that litigants had relied on Rice
v. Holder, 597 F.3d 952, 957 (9th Cir. 2010) (holding “that persons convicted of
using or being under the influence of a controlled substance, where that offense is
less serious than simple drug possession” are eligible for such treatment), in
determining that no “substantial inequitable results” arose from the retroactive
application of the decision to overrule Rice); see also Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).
The stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.

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