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Ramos v. Holder

United States Court of Appeals, Tenth Circuit

February 12, 2015

OCTAVIO DIAZ RAMOS, Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General, Respondent.

Before KELLY, BALDOCK, and MORITZ, Circuit Judges.

ORDER AND JUDGMENT [*]

Paul J. Kelly, Jr. Circuit Judge

Octavio Diaz Ramos petitions for review of a final order of removal. He challenges the Board of Immigration Appeals' (BIA or Board) holding that he is removable and its denial of his applications for relief from removal because he has been convicted of an aggravated felony. Exercising jurisdiction under 8 U.S.C. § 1252(a), we dismiss in part and deny the remainder of the petition for review.

I. Background

Mr. Diaz, a native and citizen of Mexico, became a lawful permanent resident (LPR) of the United States in 1992. In 1999, he pleaded guilty in state court in Arizona to an attempted violation of Ariz. Rev. Stat. § 13-3405 (1999), which criminalized the possession, use, production, sale or transportation of marijuana. More specifically, according to the Arizona state court's sentencing order and Mr. Diaz's plea agreement, he pleaded guilty to a single count of "Attempted Possession of Marijuana for Sale, a class 3 nondangerous and nonrepetitive felony, in violation of [Ariz. Rev. Stat. §§] 13-1001, 13-3405(A)(2) and (B)(3), 13-3401, 13-701, and 13-801." Admin. R. at 811, 821-22.

The terms of §§ 13-3405(A)(2) and (B)(3) are relevant to the issues raised in this petition for review.[1] At the time of Mr. Diaz's conviction, § 13-3405 provided, in relevant part:

A. A person shall not knowingly:
1. Possess or use marijuana.
2. Possess marijuana for sale. . . .
B. A person who violates: . . .
3. Subsection A, paragraph 1 of this section involving an amount of marijuana not possessed for sale having a weight of four pounds or more is guilty of a class 4 felony.

Ariz. Rev. Stat. § 13-3405 (1999) (emphasis added).

When, as a returning LPR, Mr. Diaz applied for re-admission into the United States in December 2007, the Department of Homeland Security (DHS) sought his removal as an alien who has been an illicit trafficker in any controlled substance. See 8 U.S.C. § 1182(a)(2)(C). DHS subsequently added an additional charge that Mr. Diaz is an alien convicted of a violation of any law relating to a controlled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). In support of these charges, DHS submitted the sentencing order and Mr. Diaz's plea agreement in his Arizona criminal proceedings.

Appearing before an immigration judge (IJ), Mr. Diaz denied that he was removable as charged and applied for cancellation of removal. After the IJ found him removable, he also filed an application for withholding of removal and relief under the Convention Against Torture (CAT), in which he alleged that he faces harm from drug cartels in Mexico. He asserted that his work as a confidential informant ...


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