SAWYERS v. HOLDER (2012)

OPINION

Petitioner Damien Antonio Sawyers petitions for review from the Board of Immigration Appeals' (“BIA”) denial of cancellation of removal under 8 U.S.C. § 1229b(a). The BIA held that Petitioner could not demonstrate that he met the seven-year continuous residence requirement, id. § 1229b(a)(2). In our original decision, we followed Cuevas–Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), and Mercado–Zazueta v. Holder, 580 F.3d 1102 (9th Cir.2009), to hold that the years of residence of Petitioner's mother were imputed to him. Sawyers v. Holder, 399 F. App'x 313 (9th Cir.2010) (unpublished decision). We therefore granted the petition. Id. at 314. The Supreme Court granted certiorari, Holder v. Sawyers, ––– U.S. ––––, 132 S.Ct. 71, 180 L.Ed.2d 939 (2011), and reversed our decision, Holder v. Martinez Gutierrez, ––– U.S. ––––, 132 S.Ct. 2011, ––– L.Ed.2d –––– (2012). Because Cuevas–Gaspar and Mercado–Zazueta are no longer valid precedent on the issue of imputation under 8 U.S.C. § 1229b, we now reject Petitioner's imputation argument concerning his mother's residence.

In the alternative,¹ Petitioner challenges the BIA's determination that his 2002 conviction terminated his continuous residence. See 8 U.S.C. § 1229b(d)(1). Specifically, Petitioner argues that his conviction for “maintaining a dwelling for keeping controlled substances,” in violation of 16 Delaware Code section 4755(a)(5) (2002), might have qualified as “a single offense involving possession for one's own use of 30 grams or less of marijuana,” 8 U.S.C. § 1227(a)(2)(B)(i).

We disagree. The indictment alleged that Petitioner maintained a specific dwelling that was used for keeping controlled substances as described in one or more of the five other counts. Four of those counts involve cocaine, not marijuana. The fifth count alleges possession of marijuana with intent to distribute. Accordingly, it is not possible that Petitioner's conviction involved only “possession for one's own use of 30 grams or less of marijuana.” Id. (emphasis added).

Petition DENIED.

PER CURIAM: