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BUMATAY v. BARR (2019)

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United States Court of Appeals, Ninth Circuit.

John Morla BUMATAY, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-74044

Decided: October 23, 2019

Before: GRABER, M. SMITH, and WATFORD, Circuit Judges. Emmanuel G. Guerrero, Esquire, Attorney, Law Offices of Emmanuel G. Guerrero, LLLC, Honolulu, HI, for Petitioner Corey Leigh Farrell, 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


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. § 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).


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