Opinion
No. 10-73389 Agency No. A092-444-014
07-10-2014
RAMON ROBERTO HUERTA-FLORES, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 9, 2014
San Francisco, California
Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.
The Honorable Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation.
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Petitioner Ramon Roberto Huerta-Flores is an alien charged with being removable for having been convicted of a controlled substances offense. See 8 U.S.C. § 1227(a)(2)(B)(i). The BIA applied the categorical approach and found him removable on the basis of his Arizona conviction for conspiracy to sell a narcotic drug under Arizona Revised Statutes ("A.R.S.") § 13-3408(A)(7). In light of Ragasa v. Holder, No. 12-72262, — F.3d —, 2014 WL 1661491 (9th Cir. Apr. 28, 2014), amended by 2014 WL 2498950 (9th Cir. June 4, 2014), we grant Huerta-Flores's petition for review and remand for further proceedings consistent with this disposition.
In Ragasa we were faced with the same mismatch between the federal and state lists of controlled substances present here: the inclusion of benzylfentanyl and thenylfentanyl in the state list but not in the federal list. See id. at *2 (comparing Hawaii list with federal list). Compare A.R.S. § 13-3401(20), with 21 C.F.R. §§ 1308.11-.15. The court held that the petitioner was not categorically removable under 8 U.S.C. § 1227(a)(2)(B)(i) because of this mismatch. Ragasa, 2014 WL 1661491, at *2. For the same reason, Huerta-Flores's petition must be granted.
Unlike Ragasa, it appears that documents in the record of this case may reflect the substances involved in Huerta-Flores's conviction. The BIA's decision did not discuss application of the modified categorical approach. We leave that question to its consideration in the first instance on remand. Huerta-Flores may present his arguments against application of the modified categorical approach to the BIA.
PETITION FOR REVIEW GRANTED; REMANDED.