Alberto Hernandez-Munoz v. Jefferson Sessions

FILED NOT FOR PUBLICATION NOV 14 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALBERTO ULISES HERNANDEZ- No. 14-72542 MUNOZ, Agency No. A089-296-568 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 6, 2017** Pasadena, California Before: REINHARDT, GILMAN,*** and WARDLAW, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Hernandez-Munoz applied for adjustment of status to lawful permanent resident under 8 U.S.C. § 1255(i). Because he was inadmissible due to a single conviction for possession of a small amount of marijuana, see 8 U.S.C. § 1182(a)(2)(A)(i)(II), Hernandez-Munoz also applied for a waiver of inadmissibility under 8 U.S.C. § 1182(h). On direct examination, Hernandez- Munoz’s own lawyer elicited admissions from Hernandez-Munoz that he had used marijuana on numerous prior occasions. The IJ found that Hernandez-Munoz was ineligible for a waiver of inadmissibility because he had supposedly admitted to facts constituting the essential elements of numerous counts of marijuana possession. See 8 U.S.C. § 1182(a)(2)(A)(i). However, the IJ also “note[d] that were it not for these admissions, the Court would not hesitate in granting Respondent’s adjustment of status and 212(h) waiver.” It is well-established under both California and federal law in this circuit that use of a drug does not necessarily imply possession of that drug. Rather, use is at most circumstantial evidence of possession. See United States v. Martin, 984 F.2d 308, 311 n.5 (9th Cir. 1993) (citing United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991)); Flores-Arellano v. I.N.S., 5 F.3d 360, 363 n.5 (9th Cir. 1993); People v. Morales, 25 Cal. 4th 34, 44 (2001); People v. Palaschak, 9 Cal. 4th 1236, 1240-41 (1995); People v. Spann, 187 Cal. App. 3d 400, 401-06 (1986); 2 People v. Ayala, 334 P.2d 61, 63 (Cal. Dist. Ct. App. 1959). In fact, in its supplemental brief the government acknowledges that use is only circumstantial evidence of possession. Therefore, Hernandez-Munoz’s admissions to using marijuana were not admissions to “acts which constitute the essential elements of” marijuana possession. 8 U.S.C. § 1182(a)(2)(A)(i) (emphasis added).1 The government argues that by admitting to acts which constitute circumstantial evidence of marijuana possession, Hernandez-Munoz assumed a burden to prove that he did not possess marijuana on each of those occasions. This argument is contradicted by the plain text of the statute. Hernandez-Munoz is inadmissible under the relevant provision only if he admitted to the essential elements of marijuana possession. He did not admit to those essential elements. He has therefore carried his burden to show his eligibility for relief. The petition for review ...

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