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Bermudez v. Holder

November 10, 2009

ROMUALDO CABAY BERMUDEZ, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A34-027-920.

Per curiam.

FOR PUBLICATION

Submitted October 15, 2009*fn1 -- Honolulu, Hawaii.

Before: Robert R. Beezer, Susan P. Graber, and Raymond C. Fisher, Circuit Judges.

OPINION

Petitioner Romualdo Cabay Bermudez petitions for review from a final order of the Board of Immigration Appeals ("BIA") denying his request to terminate proceedings and his request for cancellation of removal. Petitioner argues that his conviction for possessing "a pipe and/or packets" that are used for and with the drug methamphetamine is not a violation of a law "relating to a controlled substance," so that he is eligible for cancellation of removal. We are not persuaded. We hold that Petitioner's conviction is indeed one "relating to a controlled substance" and, as a result, we lack jurisdiction over the petition for review.

Petitioner is a native and citizen of the Philippines. He was admitted to the United States in 1973. On June 9, 2006, Petitioner was convicted of the offense of Prohibited Acts Related to Drug Paraphernalia, in violation of section 329-43.5(a) of the Hawaii Revised Statutes. That section provides:

Prohibited acts related to drug paraphernalia

(a) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.

Haw. Rev. Stat. § 329-43.5(a) (2009). Following that conviction, the government charged Petitioner with being removable under 8 U.S.C. § 1227(a)(2)(B)(i). That section reads in relevant part:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).

We determine our own jurisdiction de novo. Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000). Whether a particular conviction is a deportable offense is a question of law, which we likewise review de novo. Id. (citing Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997)).

[1] In Luu-Le, we held that an Arizona statute that criminalized possession of drug paraphernalia was a law "relating to a controlled ...


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