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Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Doruu.., CWV\)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Creppy, Michael J.
Greer, Anne J.
Userteam: Docket
Cite as: Jose Luis Pimber-Cirerol, A019 117 585 (BIA Feb. 15, 2017)
U.S. Department of Justice
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
Don.rtL C WV\)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Creppy, Michael J.
Greer, Anne J.
Userteam:
Cite as: Jose Luis Pimber-Cirerol, A019 117 585 (BIA Feb. 15, 2017)
U.S. Department of Justice
ExecutiveOffil:e for Immigration Review
Decision of the Board of Immigration Appeals
APPEAL
CHARGE:
The respondent appeals the Immigration Judge's February 4, 2016, decision finding him
removable as charged and ordering him removed from the United States. 1 The appeal will be
sustained, and the proceedings will be terminated.
In her decision, the Immigration Judge summarily concluded, without any fact-finding or
analysis, that the respondent's 2005 conviction for the offense of possession of drug
paraphernalia in violation of Arizona Revised Statutes section 13-3415 renders him removable as
charged because it is an offense "relating to a controlled substance" (l.J. at 3). However, well
prior to the Immigration Judge's decision in this case, the United States Supreme Court issued its
decision in Mellouli v. Lynch, 135 S.Ct. 1980 (2015). Under Mellouli, in order for a drug
paraphernalia offense to render an alien inadmissible under section 212(a)(2)(A)(i)(1I), it must
relate to a controlled substance listed in the Federal Controlled Substances Act ("CSA").
See id. at 1990-91 (overruling Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009)).
Arizona Revised Statutes section 13-3415 references only "drug paraphernalia" and does not
include, by reference or otherwise, any controlled substances listed in the Federal Controlled
1
The Immigration Judge issued a decision on December 22, 2015, denying the respondent's
first motion to terminate. We find it unnecessary to address the merits of that decision given our
finding that the Immigration Judge erred in not terminating these proceedings based on her
erroneous finding that the respondent is removable as charged.
Cite as: Jose Luis Pimber-Cirerol, A019 117 585 (BIA Feb. 15, 2017)
t A019 117 585 .
Substances Act.2 Thus, the respondent's conviction does not constitute an offense related to a
controlled substance and the respondent is not removable as charged based on his conviction.3
Accordingly, the appeal will be sustained, and the proceedings will be terminated.
2
The statute defines "drug paraphernalia" as "all equipment, products and materials of any kind
which are used, intended for use or designed for use in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing,
testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting,
inhaling or otherwise introducing into the human body a drug in violation of this chapter." See
Ariz. Rev. Stat. 13-3415(F)(2). The statute also provides a list of "items" included within the
definition, none of which references a controlled substance listed in either the Federal CSA or
the State list(s) of controlled substances. See id.
3
The respondent was not charged with inadmissibility based on his 2005 conviction for the
offense of solicitation to possess a narcotic drug in violation of Arizona Revised Statutes section
13-3408(A)(l) (Exhs. 1, 2, and 13). See Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.
1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997).
2
Cite as: Jose Luis Pimber-Cirerol, A019 117 585 (BIA Feb. 15, 2017)
' I
In the Matter of
)
JOSE LUIS PIMBER CIREROL ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
APPLICATIONS:
permanent resident status on the 23rd of July, 1969, in Nogales, Arizona. See Exhibit
3. On September 19th, 2005, the Arizona Superior Court Pima County, the respondent
was convicted of the offense of unlawful possession of drug paraphernalia in violation of
Arizona Revised Statute Section 13-3415. On August 24th, 2014, the respondent
applied for admission as a returning lawful permanent resident at the Deconcini Port of
Entry in Nogales, Arizona. At such a time, inspection was deferred and the respondent
was paroled into the United States pursuant to INA Section 212(d) (5) . On September
24th, 2014, the respondent returned to the Deconcini Port of Entry to complete his
referenced above.
During master calendar hearings, the respondent had denied the first
respondent had argued that he believes he arrived or acquired citizenship through his
United States citizen father. Several hearings were conducted by this court to address
that issue and, ultimately, on the 22nd of December, 2015, this court denied
respondent's motion to terminate removal proceedings finding that he had not met his
With the citizenship claim not being established, the court finds the
he's a native and citizen of Mexico and that he was accorded lawful permanent resident
status as previously stated. They also had admitted that respondent on August 24th,
2014, had applied for admission as a returning lawful permanent resident at Deconcini
Port of Entry and that on that same date his inspection was deferred and he was
paroled into the United States. They also admitted that a month later that the
respondent returned to the Deconcini Port of Entry in Nogales, Arizona, to complete his
deferred inspection. The respondent, through counsel, had denied that on September
19th, 2005, in the Pima County Superior Court that he had been convicted for the
the Arizona Revised Statute for which he was sentenced to 18 months of probation.
the plea transcript, the court finds that not only has factual allegations 4 and 5 been
established, but that the single charge of inadmissibility as referenced above has also
been established.
//s//
Immigration Judge LINDA I. SPENCER-WALTERS