ANTONIO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.

Jack Donald ANTONIO, aka Jack Antonio, aka Jack Donald Castillo, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 13-71256

Decided: July 23, 2021

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Laura Murray-Tjan, Director, Federal Immigration Appeals Project, Boston, MA, for Petitioner. Aric Allan Anderson, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent. Andrew Wachtenheim, Immigrant Defense Project, New York, NY, for Amici Curiae American Immigration Lawyers Association, Asian Americans Advancing Justice - Asian Law Caucus, Community Legal Services of Palo Alto, Detention Watch Network, Florence Immigrant and Refugee Rights Project, Heartland Alliance's National Immigrant Justice Center, Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Law Center, National Immigration Project of the National Lawyers Guild, Northwest Immigrant Rights Project, Public Counsel, U.C. Davis School of Law Immigration Law Clinic

MEMORANDUM **

Jack Donald Antonio, a native and citizen of Belize, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge's (“IJ”) decision pretermitting his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). We deny the petition for review.

The BIA did not err in concluding that Antonio failed to meet his burden to establish that his conviction under Arizona Revised Statutes (“Ariz. Rev. Stats.”) § 13-3405(A)(4) is not an aggravated felony drug trafficking offense that renders him ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3); Pereida v. Wilkinson, ––– U.S. ––––, 141 S. Ct. 754, 766, 209 L.Ed.2d 47 (2021) (an applicant for relief bears the burden of showing eligibility and cannot meet burden with an inconclusive conviction record); see also Rosas-Castaneda v. Holder, 655 F.3d 875, 885-86 (9th Cir. 2011) (applying the modified categorial approach to Ariz. Rev. Stats. § 13-3405(A)(4)), overruled on other grounds by Young v. Holder, 697 F.3d 976, 979-80 (9th Cir. 2012) (en banc).

We grant the unopposed motion for leave to file a brief of amicus curiae.

The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.

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