i. statement of jurisdiction - william s. richardson ...i. statement of jurisdiction crisanto carino...

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I. STATEMENT OF JURISDICTION

CRISANTO CARINO RAGASA ( “Petitioner”) seeks to vacate the INA

237(a)(2)(B)(i) and (A) (iii)Immigration Judge’s (“IJ”) order of removal entered on

January 31, 2012 (See Certified Administrative Record (CAR) at 68-69 ) and

review of the Board of Immigration Appeals’ (“BIA”) final decision of June 19,

2012, affirming the Immigrations Judge’s (“IJ”) oral decision ( See Certified

Administrative Record (CAR) at 3-4). Petitioner asserted that the Immigration

Court abused it’s discretion to the BIA and is appealing the Immigration

Judge’s decision.

The IJ found that Petitioner had not established United States citizenship.

The Immigration court also found Petitioner removable under of the act even

though the Hawaii controlled substance statute under which he was convicted

includes controlled substances which are not criminalized under the federal

Controlled Substances Act (“CSA”). Petitioner also argues that the Immigration

court abused it’s discretion when it used Petitioner’s truthful statements to

prejudice his application for Cancellation of Removal .

Case: 12-72262 03/18/2013 RESTRICTED ID: 8555509 DktEntry: 7-2 Page: 1 of 33

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The BIA denied petitioner’s appeal on June 19, 2012, and this petition

for review was timely filed on July 13, 2012, within thirty days of the BIA’s final

order. INA § 242(b)(1), 8 U.S.C. §1252(b)(1).

Venue properly lies in this Court pursuant to INA 242 (b)(2), 8 U.S.C. 12

52 (b)(2) for the reason that the administrative proceedings before the IJ took place

within this judicial circuit and the decision by the Board of Immigration Appeals

was a final agency determination. This Court has jurisdiction to address the

Petitioner’s petition for review of his final removal order because the issues of

whether he qualified for United States citizenship, or was removable under INA

237(a)(2)(B) and (A)(iii) of the Act , are questions of law, reviewable under the

REAL ID Act of 2005, 8 U.S.C. 1252 (a)(2)(D). The Act restored the 9th

Circuit’s

jurisdiction to review questions of law presented in petitions for review of final

removal orders. The Act states,

Nothing in subparagraph (B) or (C), or in any other

Provision of this Act (other than this section) which limits

or eliminates judicial review, shall be construed as precluding

review of constitutional claims or questions of law raised

upon a petition for review of constitutional claims or

questions of law raised upon a petition of review filed with

an appropriate court of appeals in accordance with this section.

8U.S.C. 1252 (a)(2)(D).


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This Court has stated that “[i]nterpretation of immigration statutes is a

question of law that [the 9th Circuit] review[s] de novo.” Cabrera-Alverez v.

Gonzales, 423 F.32d 1006, 1007 (9th

Cir. 2005); Lopez-Torres v. Gonzales, 202

Fed. Appx. 979 (9th Cir. 2006); Li Bin Lin v. Gonzales, 472 F. 3d 1131 (9th Cir.

2007)

Accordingly, this Court has jurisdiction pursuant to the Immigration and

Nationality Act (INA) 242(a)(1) and INA 242(a)(2)(C), 8 U.S.C. 1252, limitation

on judicial review of orders of removal for certain convicted aliens does not apply.

II. STATEMENT OF THE ISSUES

1. Whether it is an abuse of discretion for an immigration judge to find that

Petitioner did not establish that he was a United State Citizen under the

former section of INA 301 (a)(7) of the Act.

2. Whether the Immigration court abused it’s discretion when it found that

Petitioner was removable under INA 237(a)(2)(B) and (A)(iii) of the Act

as his State conviction under the Hawaii drug statute when the Hawaii

drug statute included drugs that are not in the CSA.

3. Whether the Immigration court abused it’s discretion when it used

Petitioner’s truthful statements about his past absent an actual conviction

to prejudice his application for Cancellation of Removal.


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III. STANDARD OF REVIEW

An agency’s interpretation or application of a statute is a question of law

reviewed de novo. Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999); Garcia-

Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). Whether a conviction is a

deportable offense is a question of law reviewed de novo. See Coronado-Durazo v.

INS, 123 F.3d 1322, 1324 (9th Cir. 1997); Rodriguez-Herrera v. INS, 52 F.3d 238,

240 n.4 (9th

Cir. 1995); Morales-Alegria v. Gonzales, 449 F.3d 1051 (9th

Cir.

2006).

A petition for review of an order of the Board of Immigration Appeals is

governed by the transitional rules of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996. Agyeman v. INS, 296 F.3d 871 (9th

Cir.

2002).

When the BIA reviews the IJ’s decision de novo, the appellate court’s

review is limited to the BIA’s decision except to the extent that the BIA adopted

the IJ’s opinion.

The appellate court reviews de novo legal interpretations of the Immigration

and Naturalization Act's requirements. Because the standard of review is de novo,

the appellate court conducts an independent examination of the entire record.


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IV. STATEMENT OF THE CASE

Petitioner is a 45 year old adult male born in the Philippines, who was

adopted by American citizen parents and came to the United States when he was

14 years of age on November 6, 1980 as an IR4 immigrant. He is presently being

held in custody at the Federal Detention Center after serving two years in State

custody. Petitioner has an American citizen spouse and three children.

Respondent has only one conviction for Attempted promoting dangerous

Drugs in the first decree and no other criminal convictions. This was

Petitioner’s first conviction for drugs. On July 28, 2008, Petitioner

pleaded guilty to the one count of attempted promoting dangerous

drugs in the first degree, and the Judgment was modified

in the State court on August 17, 2011. Petitioner was convicted

of Attempted Promoting a Dangerous Drug in the 1st

Degree

under Hawaii Revised Statutes 705-500 (1)(b) and 712-1241(1)(b)(ii).

The Petitioner withdrew it’s original allegation number 4

on the Notice to Appear dated February 17, 2011, and substituted

with the following: “5. You were on July 28, 2008, convicted


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in the Circuit Court of the Third Circuit, State of Hawaii,

for the offense of Attempted Promoting a Dangerous Drug in the First

Degree under CR. No. 06-1-535 in violation of sections 705-500(1)(b) and 712 124

(1)(b)(ii) of the Hawaii Revised Statutes.

The Immigration court found Petitioner removable under INA 37(a)(2)(B)(i)

and (A) (iii) INA 237(a)(2)(B)(i) and (A) (iii) . The BIA affirmed the Immigration

court’s decision which he has now appealed to the Ninth Circuit court of Appeals.

V. STATEMENT OF THE FACTS

Petitioner initially sought to have the case terminated before the

Immigration court, as he made a claim to U.S. Citizenship his claim

to citizenship was based on Petitioner’s claims to automatic

citizenship under the laws subsequent to 12/24/52 but before 2/27/01

under Public Law 95-417 .

Petitioner argued that this period is applicable to him as dates

when his parents Naturalized, is the key for automatic citizenship,

his mother Cleofe naturalized on August 21, 1964, and when she married

Alejandrino on April 24, 1956 the marriage contract indicated that he was an


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American. Thus INA 320, as amended by P.L. 95-417, Repealed by P.L. 106-395

was the law applicable to him for Derivative citizenship. 7 FAM 1157 (b) for

Adopted Children and Derivative Naturalization Prior to February 21, 2001. This

was denied by the Immigration court .

Petitioner also asserted to the court that he was not removable under INA

237(a)(2)(B) and (A)(iii) of the Act as his State conviction under the Hawaii Drug

Statutes included drugs that were not in the Federal Constrolled Substances Act.

This argument was also denied by the court as well , the court

found Petitioner removable for the State convict ion under INA 237(a)(2)(B) and

(A) (iii).

Petitioner in the alternative also sought relief under INS

42(b) wherein he is required to have at least ten years of continuance

residence in order to qualify for this form of relief. While the

court did not consider his one conviction as an aggravated felony to


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disqualify the Petitioner for the requested relief, the court did use Petitioner’s

statements as aggravating facts comparable to a finding of a conviction for an

aggravated felony situation to disqualify the Petitioner, thus finding that Petitioner

was not qualified for relief under INA 42(A).

VI. SUMMARY OF THE ARGUMENT

Petitioner asserts that he is a United States Citizen as he qualifies as an

individual who has acquired citizenship automatically under the former section

INA 301(a)(7) of the Act, 8 U.S.C.1401 (a), now designated 301(g).

Petitioner also asserts that the Immigration court was

incorrect in it’s finding that Petitioner was removable under INA 237(a)(2)(B) and

(A)(iii) of the Act as the record will show that his State of Hawaii conviction under

the Hawaii drug Statute included drugs that were not in the Controlled Substance

Act. The Immigration court also abused it’s discretion when it used statements by

the Petitioner against him to literally disqualify as if he had convictions, which

prejudiced his qualification for INA 42(A) relief.

VII. ARGUMENT

I. IT WAS AN ABUSE OF DISCRETION FOR THE IMMIGRATION

JUDGE TO FIND THAT PETITIONER DID NOT ESTABLISH THAT

HE WAS A UNITED STATES CITIZEN

The Immigration court hearing the court cited two cases, which the


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court held are applicable to Petitioner and that it would deny Petitioner’s claim

to Citizenship.

The first case cited by the court was dated March 11, 2008 , Mustanich,

vs. Mukasey , 518 Fed. 3rd

. 1084, (2008) this case is distinguishable from

Petitioner’s legal argument and factual situation for several reasons. Mustanich

adopted parents were not naturalized U.S. Citizens , but citizens through birth.

That Mustanich was born on August 15, 1978 and he was adopted when he was

one years old in 1979, while Petitioner was born in 1966 and was adopted in

1980 when he was fourteen years of age. That Mustanich was claiming

citizenship rights through the court, under the legal doctrine of Estoppel, under no

statutory rights given by law through Congress. Because Mustanich was born

outside the United States the court held that he was required to satisfy U.S.C.

1433 before becoming a naturalized citizen . That because Mustanich adopted

parents were unable to file the application for naturalization before he was eighteen

he did not qualify for citizenship under 1433 of the 8 U.S.C. The present law

provides as follows:

§ 1433. Children born and residing outside the United States;

conditions for acquiring certificate of citizenship

(a) Application by citizen parents; requirements


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A parent who is a citizen of the United States (or, if the citizen parent has

died during the preceding 5 years, a citizen grandparent or citizen legal

guardian) may apply for naturalization on behalf of a child born outside

of the United States who has not acquired citizenship automatically

under section 1431 of this title. The Attorney General shall issue a

certificate of citizenship to such applicant upon proof, to the satisfaction

of the Attorney General, that the following conditions have been

fulfilled:

(1) At least one parent (or, at the time of his or her death, was) is a citizen

of the United States, whether by birth or naturalization.

(2) The United States citizen parent—

(A) has (or, at the time of his or her death, had) been physically present

in the United States or its outlying possessions for a period or periods

totaling not less than five years, at least two of which were after attaining

the age of fourteen years; or

(B) has (or, at the time of his or her death, had) a citizen parent who has

been physically present in the United States or its outlying possessions

for a period or periods totaling not less than five years, at least two of

which were after attaining the age of fourteen years.

(3) The child is under the age of eighteen years.

(4) The child is residing outside of the United States in the legal and

physical custody of the applicant (or, if the citizen parent is deceased, an

individual who does not object to the application).

(5) The child is temporarily present in the United States pursuant to a

lawful admission, and is maintaining such lawful status.

(b) Attainment of citizenship status; receipt of certificate

Upon approval of the application (which may be filed from abroad) and,

except as provided in the last sentence of section 1448 (a) of this title,

upon taking and subscribing before an officer of the Service within the

United States to the oath of allegiance required by this chapter of an

applicant for naturalization, the child shall become a citizen of the United

States and shall be furnished by the Attorney General with a certificate of

citizenship.

(c) Adopted children

Subsections (a) and (b) of this section shall apply to a child adopted by a

United States citizen parent if the child satisfies the requirements

applicable to adopted children under section 1101 (b)(1) of this title.


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The exception to 1433 regarding conditions for acquiring a certificate of

citizenship on behalf of a child born outside of the United States is for a child

who has acquired citizenship automatically under section 1431 of title 8

USC. That section provides :

§ 1431. Children born outside the United States and residing permanently

in the United States; conditions under which citizenship automatically

acquired

(a) A child born outside of the United States automatically becomes a

citizen of the United States when all of the following conditions have

been fulfilled:

(1) At least one parent of the child is a citizen of the United States,

whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical

custody of the citizen parent pursuant to a lawful admission for

permanent residence.

(b) Subsection (a) of this section shall apply to a child adopted by a

United States citizen parent if the child satisfies the requirements

applicable to adopted children under section 1101 (b)(1) of this title.

A. Petitioner qualifies as an individual who has acquired citizenship

under the former section INA 301(a)(7) of the Act, 8 U.S.C. 1401

(a), now designated 301(g)

Petitioner Ragasa, is claiming citizenship under this exception, and

under the laws applicable to him at the time of his parents naturalization.

However the same reasoning was given by the USCIS in its denial of


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Petitioner’s N- 600 application. The USCIS claims in there memo “The prior

Sections 320 and 321 of the INA did not include children whose adoptive

parents were already naturalized at time of adoption or were citizens at birth.

In cases where the adoptive parents were already United States citizens prior to

the adoption of the child, then it was necessary to apply for certificates under

Section 322 of the INA prior to the child turning 18 years of age.”

However Petitioner’s claims automatic citizenship under the laws

Subsequent to 12/24/52 but before 2/27/01 under Public Law 95-417.

Petitioner argues that this period is applicable to him as dates when his

parents Naturalized, is the key for automatic citizenship , his mother Cleofe

naturalized on August 21, 1964, and when she married Alejandrino on April 24,

1956 the marriage contract indicated that he was an American. Thus INA 320,

as amended by P.L. 95-417, Repealed by P.L. 106-395 was the laws applicable

to him for Derivative citizenship. 7 FAM 1157 (b) for Adopted Children and


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Derivative Naturalization, Prior to February 21, 2001.

( b): From December 24, 1952 to October 5, 1978 (Public Law 95-417) was the law for that period regarding for Derivative citizenship of lawful permanent resident children gaining citizenship through parents citizenship., foreign-born children adopted by aliens who later became naturalized U.S. citizens automatically became naturalized U.S. citizens themselves provided: (1) They were adopted before they reached age 16; and (2) A parent naturalized before the child reached age 18. ........................ (d): Applicants in categories (b) or ( c ) must submit: (1) Certificate of birth with the seal of the issuing office; (2) Certified copy of adoption decree (3) Evidence of the adoptive parent’s identity; (4) Evidence of th adoptive parent’s U.S. citizenship; (5) Evidence that the child resides with a U.S. citizen parent ; and (6) Primary Evidence of Permanent Residence status: Child’s permanent

resident alien registration car indicating an acceptable IR category or foreign passport with US. Entry stamp reflecting admission as lawful permanent resident.

The only restriction in the former INA 320 laws applicable to Petitioner

was that the parents naturalization and the his lawful admittance occur before he

was eighteen years of age, it provides that the date of automatic acquisition is the

DATE THE LAST CONDITION WAS FULFILLED. Former INA 320 does

NOT require that his parents apply for certificates before he turned eighteen.

Petitioner’s parents hired an attorney and went through all the trouble of getting

the Hawaii adoption decree back dated to 1980 , assuming that he would be


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automatically a citizen under the abovementioned laws.

The second case which the Immigration court cited was Hughes vs. Ashcroft, 255

Fed.3rd 1752 (2001). In that case the Petitioner was born in 1956 from Poland

and was adopted by two U.S. Citizens on May of 1960. Hughes was claiming

automatic citizenship under Title 1 of the 2000 Child and Citizenship Act. The

court in that case the court denied the petition because Hughes did not apply for

citizenship to qualify as a non citizen national of the U.S. and because he was 40

years old when the CHILD CITIZENSHIP ACT OF 2000 took effect and

automatic citizenship did not apply to him . In Petitioner’s case he is not

claiming to be a U.S. National, nor is he claiming to be a citizen under Child

Citizenship Act 2000 automatic citizenship, but under Public Law 95-417 which

applicable as of October 5, 1978 to foreign-born adopted children.

PETITIONER ALSO QUALIFIES FOR CITIZENSHIP UNDER 1401

Petitioner Ragasa is also claiming citizenship through the statutory

requirements of 8 U.S.C. 1401(g) as passed by Congress. When Petitioner


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Ragasa was born in 1966, the categories of persons recognized as nationals

and citizens of the United States at birth, set forth in 8 U.SC. 1401, included:

“....a person born outside the geographical limits of the United States

and its outlying possessions of parents one of whom is an alien, and the other

a citizen of the United States who, prior to birth of such person, was

physically present in the United States or its outlying possessions for a period

or periods totaling not less than ten years, at least five of which were after

attaining the age of fourteen years.............”

A. Petitioner’s situation is similar to Solis-Espinoza v. Gonzales, 401 f.3d

1090 (9th Cir. 2005)

Petitioner asserts that Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th

Cir. 2005) is applicable to his situation, in that case the Ninth Circuit found that a

child can acquire citizenship at birth through a person who is neither a biological

nor an adoptive parent . This case arose under the context of “acquired

citizenship” rather than “derivative citizenship,” In that case Solis-Espinoza was

born in Tijuana, Mexico in 1967, both of his biological parents were not U.S.

Citizens. Respondent was born in the Philippines 1966, both of his biological

parents were not U.S. Citizens. Solis-Espinoza was raised in the United States

by his biological father, Refugio Solis, a Mexican citizen and lawful permanent

resident of the United States, and his father’s wife, Stella Cruz- Dominguez, a

natural-born United States citizen. Solis and Cruz-Dominguez were married at the


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time of Solis- Espinoza’s birth. That at the time of Respondent Ragasa’s birth on

June 9, 1966 both his adoptive parents were married and U.S. citizens. On appeal

to the BIA, the BIA found that since neither of Solis-Espinoza’s biological

parents were United States citizens, he did not share a blood relationship with a

U.S. citizen and did not, according to the BIA, qualify for citizenship. The Ninth

Circuit reversed the BIA decision and found the following:

‘The applicable law for transmitting citizenship to a child born abroad when one

parent is a U.S. citizen is the statute that was in effect at the time of the child’s

birth.’ ” Scales, supra,

232 F.3d at 1162-63 (quoting United States v. Viramontes-Alvarado, 149 F.3d

912, 915 (9th Cir.), cert. denied, 525 U.S.976, (1998)). When Solis-Espinoza was

born in 1967, the categories of persons recognized as nationals and citizens of the

United States at birth, set forth in 8 U.S.C. § 1401, included: a person born outside

the geographical limits of the

United States and its outlying possessions of parents one of whom is an alien, and

the other a citizen of the United States who, prior to the birth of such person, was

physically present in the United States or its outlying possessions for a period or

periods totaling not less than ten years, at least five of which were after attaining

the age of fourteen years . 8 U.S.C. § 1401(a)(7) (1964) (redesignated in 1978 as


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§ 1401(g)). In Respondent Ragasa’s case he had an Immigrant Visa IR-4 , as

petitioned by his adoptive father Alejandrino Ragasa ( See USCIS Exhibit 2, Tab

B dated September 22, 2010). Respondents adoptive father was married to his

adoptive mother Cleofe Ragasa on April 24, 1956, and in the marriage contract it

indicates that Alejandrino Ragasa was an American, which was ten years before

Respondent Ragasa was born on June 9, 1966.

The court in Solis-Espinoza,(supra) (p. 3572) went on further to define as

follow:

“Child,” as used in the subchapter concerning nationality, including §

1401, was defined as follows: The term “child” means an unmarried person

under twenty-one years of age and includes a child 3572 8 U.S.C. §

1401(a)(7) (1964) (redesignated in 1978 as § 1401(g)). legitimated under

the law of the child’s residence or domicile, or under the law of the father’s

residence or domicile, whether in the United States or elsewhere, and,

except as otherwise provided in sections 1431-1434 of this title, a child

adopted in the United States, if such legitimation or adoption takes place

before the child reaches the age of sixteen years, and the child is in the

legal custody of the legitimating or adopting parent or parents at the time

of such legitimation or adoption. 8 U.S.C. § 1101(c)(1) (1964).

Petitioner Ragasa’s adoption occurred when he was fourteen years of age,

the Hawaii State family court specifically backdated the effective date of the

adoption and made the effective date of his adoption to be when he was fourteen

years of age, and while he was in the legal custody of his adoptive parents.


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B. Petitioner’s situation is also supported by this court’s ruling in Scales v.

INA, 232 F.3d 1159 (9th

Cir. 2000)

The Ninth Circuit Courts decision in Scales v. INS, 232 F.3d 1159,1166

(9th Cir. 2000) concerned the same statutes, since they were in the same form ten

years later, in 1977, when the petitioner in that case was born. In that case a

Petitioner who was born in the Philippines in 1977 to an American citizen

serviceman and a Philippine citizen. When Petitioner was nineteen years of age he

was convicted of an aggravated felony. On appeal to the BIA Petitioner asserted

that Scales senior was his natural father, but the BIA rejected his argument citing

an affidavit of non-paternity that his father signed in order to obtain an immigrant

visa for Petitioner in 1979. Petitioner has not been naturalized, claiming instead

that he acquired citizenship at birth by being born to a citizen father. The

court in Scales, (supra, p. 1066) provided as follows:

“The statutory provisions concerning citizenship do not

address the situation presented here, where the child is "legiti-

mate" by virtue of his parents being married at the time of his

birth, yet he may not be the "natural," or biological, child of

the citizen parent. Section 1401(a)(7) merely states that a per-

son "born . . . of parents one of whom is an alien, and the

other a citizen of the United States" is a citizen, if the resi-

dency requirement is met by the citizen parent. It does not

address whether being "born of parents" requires only that the


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person be born in wedlock, or, as the BIA concluded, that

there must be a blood relationship between the person claim-

ing citizenship and the citizen parent. A straightforward read-

ing of § 1401 indicates, however, that there is no requirement

of a blood relationship. Thus, even if the affidavit of non-

paternity is sufficiently "clear, cogent, and convincing" to

overcome the state law presumption that Scales is Petitioner's

natural father, it does not defeat Petitioner's acquisition of

citizenship under § 1401.”

In the Scales case , the Ninth Circuit held that a blood relationship between

a child and a U.S. citizen was not required to establish citizenship under 8 U.S.C. §

1401(g), if the child in question was not born out of wedlock. In that case the court

found that a child acquired U.S. citizenship at birth even though neither of his

biological parents were citizens, but at the time of his birth his mother was married

to a U.S. Citizen. In Petitioner’s Ragasa’s case he was adopted before he was

sixteen, his adoptive parents were married when he was born, and his American

citizen adoptive father was residing in the U.S. for the required ten years.

That based on the Ninth Circuit decision in Solis-Espinoza v. Gonzales, 401

F.3d 1091 (9th

Cir. 2005) that a child acquired U.S. citizenship at birth even though

neither of his biological parents were citizens, but at the time of his birth his father

was married to a US. Citizen who did not formally adopt him. The court in Solis-

Espinoza granted Citizenship to the thirty three year old, under 8 U.S.C. 1401(g) .


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The Ninth Circuit in Scales supra, had a slightly different situation where the

appellate court had to determine whether the respondent in that case automatically

derived United States citizenship under 8 U.S.C. 1401, where there is no blood

relationship between a person born outside the United States and his U.S. citizen

parent. The Ninth Circuit determined that 8 U.S.C. § 1401 does not require a

blood relationship between a person born outside the United States and his U.S.

citizen parent.

In Petitioner Ragasa’s case, the laws applicable for a person born in 1966

are those after 12/24/52 and prior to 11/14/86, that in a situation where there is

one citizen parent and one alien parent, his adoptive citizen father was

physically present in the U.S. or its outlying possessions for 10 years. That at

the time of his birth both of his adoptive parents were married and U.S. Citizens

and that he was legally adopted on December 31, 1980 when he was 14 years of

age. That Respondent Ragasa meets the requirements of 1401.

II. THE IMMIGRATION COURT ABUSED IT’S DISCRETION WHEN

IT PROVIDED THAT REPONDENT WAS REMOVABLE UNDER

INA 237(A)(2)(b) AND (a)(III) OF THE Act as his STATE

CONVICTION UNDER THE HAWAII DRUG STATUTES

INCLUDED DRUGS THAT ARE NOT IN THE CSA

Respondent ’s first charge of removability, was that at any time after

admission, Petitioner was convicted of a violation of (or conspiracy or attempted


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to violate) any law or regulation of a State, the United States, or a foreign country

relating to a controlled substance (as defined in Section 102 of the Controlled

Substances Act, 21 USC 802, other than a single offense involving possession for

one’s own use of 30 grams or less of marijuana. Respondent denies that he is

removable under INA Section 237 (a)(2)(B) (i) as amended which provides:

Sec 237 (a)(2)(B)(i)

a) Classes of Deportable Aliens.-Any alien (including an alien

crewman) in and admitted to the United States shall, upon the order of

the Attorney General, be removed if the alien is within one or more of

the following classes of deportable aliens:

(2) Criminal offenses.-

(B) Controlled substances.-

(i) Conviction.-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 (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802)), other than a single

offense involving possession for one's own use of 30 grams or less of

marijuana, is deportable.


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A. PETITIONER’S CONVICTION ON July 28, 2008, 2011 INCLUDES

DANGEROUS DRUGS THAT ARE NOT IN THE FEDERAL

CONTROLLED SUBSTANCES ACT FOR THE UNITED STATES

Petitioner was convicted in his Judgment of Conviction and

Probation Order for violations under Hawaii Revised Statues of Attempted

Promoting a Dangerous Drug in the 1st Degree under 705-500(1) (b) and

712-1241)(1)(b)(ii) which provides as follows:

§705-500 Criminal attempt. (1) A person is guilty of an attempt to

commit a crime if the person:

(a) Intentionally engages in conduct which would constitute the crime if the

attendant circumstances were as the person believes them to be; or

(b) Intentionally engages in conduct which, under the circumstances as the

person believes them to be, constitutes a substantial step in a course of

conduct intended to culminate in the person's commission of the crime.

And

§712-1241 Promoting a dangerous drug in the first degree. (1) A person

commits the offense of promoting a dangerous drug in the first degree if the

person knowingly:

(a) Possesses one or more preparations, compounds, mixtures, or substances of

an aggregate weight of:

(i) One ounce or more, containing heroin, morphine, or cocaine or any of

their respective salts, isomers, and salts of isomers; or

(ii) One and one-half ounce or more, containing one or more of any of the

other dangerous drugs except methamphetamine; or

(b) Distributes, except for methamphetamine:

(i) Twenty-five or more capsules, tablets, ampules, dosage units, or syrettes

containing one or more dangerous drugs; or

(ii) One or more preparations, compounds, mixtures, or substances of an

aggregate weight of:

(A) One-eighth ounce or more, containing heroin, morphine, or

cocaine or any of their respective salts, isomers, and salts of isomers; or


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(B) Three-eighths ounce or more, containing any other

dangerous drug;

Under the Hawaii Revised Statutes the definition of “DANGEROUS

DRUG” is found in HRS 12-1240 Definitions which provides:

"Dangerous drugs" means any substance or immediate precursor defined

or specified as a "Schedule I substance" or a "Schedule II substance" by

chapter 329, or a substance specified in section 329-18(c)(13), except

marijuana or marijuana concentrate.

It is under Hawaii Revised Statutes Chapter 329, which lists Hawaii’s

“Uniform Controlled Substances Act”. Schedule I is found under HRS 329-

14, Schedule II is found under HRS329-16 and HRS 329-18 ( c ) (13 ) is part

of Schedule III.

B. HAWAII PROMOTING OF DANGEROUS DRUGS IN THE FIRST

DECREE INCLUDES DRUGS THAT ARE NOT ON THE FEDERAL

CONTROLLED SUBSTANCES ACT.

Respondent was convicted on August , 2011 for Attempted PDD1. At the

last court hearing DHS provided evidence which was a letter from the State of

Hawaii Department of Public Safety Administrator Keith Kamita which states

that State of Hawaii Schedules I and II ( HRS Section 329-14 and 329- 16) were

identical with the Federal Controlled Substances Act for the period of 2005

through May of 2009. However he does not state that Schedule III

or specifically Section 329-18(c)(13) of Schedule III was identical to the

Federal Controlled Substances Act for that same period , and a review shows


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that it is NOT on the FCS list today. A Review of the Federal Control

Substances Act for (13) Tiletamine/Zolazepam (Telazol, 2-(ethylamino)-2-(-

thienyl)-cyclohexanone, flupyrazapon) or any salts thereof; and under the

State Schedule III cannot be found in any of the Federal Schedules . Since

no reference is made in the letter from the Public Safety Administrator the State

Schedule III was not identical. As a result, Respondents State of Hawaii

conviction should not make him removable.

III. THE IMMIGRATION COURT ABUSED IT’S DISCRETION WHEN

IT USED PETITIONER’S TRUTHFUL STATEMENTS ABOUT HIS

PAST TO PREJUDICE HIS APPLICATION FOR RELIEF UNDER

INA 42(A) CANCELLATION OF REMOVAL .

The Immigration court abused it’s discretion when it used Petitioner’s

statements in court as literal convictions against the Petitioner. This

disqualification make the whole basis of the claim for relief under INA 42(A)

when there are no aggravated felonies meaningless. The court abused it’s

discretion when it applied the same meaning behind aggravated felonies to

disqualify Petitioner.

CONCLUSION

THE RECORD ESTABLISHES THAT PETITIONER IS A “CHILD”

AS DEFINED BY INA 101(c)(1), RESPONDENT IS A U.S.

CITIZEN STATUS PURSUANT TO FORMER INA 320(A).


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Based on the following arguments, Petitioner derived U.S.

citizenship status on December 31, 1980 pursuant to the requirements of

INA 320(a) as it existed between the period of October 5, 1978 and

February 27, 2001 (“Former INA 320") as a “child” defined by INA 101

(c)(1).

Pursuant to Title 18 USC 1431, or 320 Ia) of the Immigration and

Nationality Act as it existed in January 1, 1999:

(a) A child born outside of the United states, one of whose

parents at the time

of the child’s birth was an alien and the other of whose

parents then was and never thereafter ceased to be a citizen of

the United States, shall, if such alien parent is naturalized,

become a citizen of the United States, when-

(1) such naturalization takes place while such child is

unmarried and under the

Age of eighteen years; and

(2) such child is residing in the United States pursuant to a

lawful admission

for permanent residence at the time of naturalization or

thereafter and begins to reside permanently in the

United States while under the age of eighteen Years.

(emphasis added)

Respondent qualifies as a “child” as required by INA 320(a)

and defined by INA 101(c)(1).

The term “child” as used in fomer INA 320(a) is defined as:


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“Unmarried person under twenty-one years of age and includes a

child legitimated under the law of the child’s residence or domicile, or

under the law of the father’s residence or domicile, whether in the

United States or elsewhere, and except as otherwise provided in 320, and

321 of title III, a child adopted in the United States, if such legitimation

or adoption takes place before the child reaches the age of sixteen years,

and the child is in the legal custody of the legitimating or adopting

parent or parents at the time of such legitimation or adoption.”

See INA 101(c)(1).

Clearly, the former INA 320 makes a distinction between “child”

and an “adopted child” for the purposes of qualifying for derivative

citizenship status. According to INA 320(b), an “adopted child” may

only qualify for citizenship status if, “the child is residing in the United

States at the time of naturalization of such adoptive parent, in the

custody of the adoptive parents, pursuant to a lawful admission for

permanent residence.”

While former INA 320(b) requires that an “adopted child” reside in

the U.S. at the time of naturalization of te adoptive parent, former INA

320(a)(2) allows for a “child” to reside with the parent “at the time

of naturalization or thereafter.”

See Id.


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Clearly, there is a distinction between an “adopted child” who has

not met the burden of INA 101(c)(1) and an “adopted child” who

qualifies as a “child” under the same statue. Examples of adopted

children who would not qualify as a “child” for purposes of former INA

320(a) are children adopted at the age of 16 and above or children

adopted outside of the United States. In these instances, INA 320(b)

would be the applicable statute for deriving U.S. citizenship.

However, in the case at hand, Petitioner began residing in the U.S.

under the legal custody of Alejandrino and Cleofe Ragasa as of

November 8, 1980. He was officially adopted under Hawaii legal

authority on December 31, 1980. As required by INA 101( c ), Petitioner

was under the age of 16 at the time he was adopted. Therefore, Petitioner

met the requirements to be considered a “child” for the purposes of INA

320(a) derivative citizenship status.

Based on the argument stated above regarding U.S. Citizenship and the

Argument’s presented on the inclusion of drugs in the State of Hawaii’s list of

illegal drugs not found in the CSA Petitioner’s case should have been

terminated. Also there was an abuse of discretion by the Immigration


28

court in using statements by Petitioner as virtual convictions of an aggravated

felony to deny Petitioner his claim to relief.

DATED: Honolulu, Hawaii, March 18, 2013

Respectfully submitted,

/s/ M. CORA AVINANTE

___________________________

M. CORA AVINANTE

Law Office of M. Cora Avinante

550 Halekauwila Street, Suite 304

Honolulu, Hawaii 96813

Telephone: (808) 550-8867

Facsimile: (808) 550-8869

E-Mail: [email protected]

Attorney for Petitioner

CRISANTO CARINO RAGASA


mailto:[email protected]

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CERTIFICATE OF COMPLIANCE

I certify that, pursuant to Federal Rules of Appellate Procedure Rule

32(a)(7)(A) and Circuit Rule 32-1, Petitioner’s Opening Brief is

proportionately spaced, has a typeface of 14 points, contains 6438 words

and has 29 pages (which is less than the 30 page limit and complies with

FRAP Rule 32(a)(7)(B) and (C).

Dated: Honolulu, Hawaii, March 18, 2013


__________________________

M. CORA AVINANTE

550 Halekauwila Street

Suite #304


Phone No: 808-550-8867

Fax No: 808-550-8869





30

STATEMENT OF RELATED CASES

PURSUANT TO CIRCUIT RULE 28-2.6 Counsel for

the Petitioner CRISANTO CARINO RAGASA, is not aware of any related cases

before this Court.

DATED this 18 th day of March 2013.


__________________________

M. CORA AVINANTE


Suite #304


Phone No: 808-550-8867

Fax No: 808-550-8869





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STATEMENT OF CUSTODY STATUS

Petitioner is detained, and were not physically removed to

Philippines as Petitioner CRISANTO CARINO RAGASA , and is detained at the

Hawaii Federal Detention Center.

Dated: Honolulu, Hawaii, March 18, 2013


__________________________

M. CORA AVINANTE


Suite #304


Phone No: 808-550-8867

Fax No: 808-550-8869





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CERTIFICATE OF SERVICE

I certify that on 3-18-13 I electronically filed the foregoing OPENING

BRIEF FOR PETITIONER with the Clerk of the Court of the United States Court

of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system. There are no unregistered participants

Dated this 18th day of March, 2013.

Respectfully Submitted,

_________/s/ M. CORA AVINANTE___________

M. CORA AVINANTE


Suite #304


Phone No: 808-550-8867

Fax No: 808-550-8869





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