                             NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                          JAN 27 2017

                             FOR THE NINTH CIRCUIT                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




STANLEY RONALD GUINTO,                           No.   13-72938

               Petitioner,                       Agency No. A029-677-725

          v.
                                                 MEMORANDUM*
SALLY YATES, Acting Attorney
General,
         Respondent.

                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                      Argued and Submitted November 8, 2016
                                 Portland, Oregon

Before: McKEOWN, W. FLETCHER and FISHER, Circuit Judges.

      Stanley Ronald Guinto pled guilty to delivering marijuana under Oregon

Revised Statutes § 475.992(1)(a). Shortly thereafter, the government instituted

removal proceedings against him based on two charges: (1) conviction of an

aggravated felony and (2) conviction of an offense related to a controlled

substance. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). The IJ found Guinto’s



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
conviction qualified as an aggravated felony and ordered him removed, making

him ineligible for cancellation of removal. See id. § 1229b(a)(3). The BIA

dismissed Guinto’s appeal. He timely petitioned for review.

      In our concurrently filed opinion, Sandoval v. Yates, No. 13-71784 at 18, we

held § 475.992(1)(a) is not an aggravated felony because it punishes solicitation in

addition to actual or attempted delivery of controlled substances. But Guinto did

not raise this argument before the BIA. Thus, the question is whether we have

jurisdiction to apply our holding in Sandoval to Guinto’s case.

      Under 8 U.S.C. § 1252(d)(1), “[a] court may review a final order of removal

only if – (1) the alien has exhausted all administrative remedies available to the

alien as of right.” Although it is not necessary for a petitioner to raise his “precise

argument” in administrative proceedings to exhaust his remedies, he must do more

than make a “general challenge to the IJ’s decision.” Alvarado v. Holder, 759 F.3d

1121, 1128 (9th Cir. 2014) (internal quotation marks omitted); see also Rendon v.

Mukasey, 520 F.3d 967, 972 (9th Cir. 2008). Petitioners must “specify which

issues form the basis of the appeal,” Alvarado, 759 F.3d at 1128 (internal

quotation marks omitted), and the BIA is entitled to rely upon the petitioner’s brief

to identify these issues, see Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.

2009) (en banc).


                                           2
      Nevertheless, a petitioner “need only exhaust all administrative remedies

available ‘as of right.’” Alvarado, 759 F.3d at 1128 (quoting Sun v. Ashcroft, 370

F.3d 932, 941 (9th Cir. 2004)). “A remedy is available as of right only when

the agency can ‘give unencumbered consideration to whether relief should be

granted,’” id. (quoting Sun, 370 F.3d at 942); entirely foreclosed issues are not

unencumbered, see id. The BIA is foreclosed from reconsidering legal issues

outside the BIA’s authority – such as the interpretation of state criminal statutes –

decided by federal appellate courts. See id. at 1128-29.

      At the time of Guinto’s BIA appeal, the Ninth Circuit did not require a

finding of divisibility before applying the modified categorical approach to

determine whether a state conviction was an aggravated felony. See Lopez-

Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015); see also United States v.

Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), abrogated by

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Under this precedent,

Guinto’s conviction qualified as an aggravated felony under the modified

categorical approach.1 The IJ simply considered Guinto’s record of conviction to

      1
        Compare Aguila-Montes, 655 F.3d at 937 (“[T]he modified categorical
approach asks what facts the conviction ‘necessarily rested’ on in light of the
theory of the case as revealed in the relevant Shepard documents, and whether
these facts satisfy the elements of the generic offense.”), and id. at 940 (“In any
                                                                          (continued...)

                                           3
conclude he had been convicted of an aggravated felony, and the BIA did not

disagree with this method. This was entirely consistent with Ninth Circuit

precedent at the time. See, e.g., United States v. Chavaria-Angel, 323 F.3d 1172,

1177-78 (9th Cir. 2003) (applying the modified categorical approach to a

conviction under § 475.992 to conclude a defendant was convicted of an

aggravated felony because he admitted to selling controlled substances in his

record of conviction).

      Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999), and Coronado-Durazo v.

INS, 123 F.3d 1322 (9th Cir. 1997), would not have prevented this conclusion

because they concerned general solicitation statutes, not specific controlled

substances statutes that could be violated through solicitation. See Leyva-Licea,

187 F.3d at 1149 (petitioner convicted of solicitation to possess marijuana for

sale); Coronado-Durazo, 123 F.3d at 1323 (petitioner convicted of solicitation to



      1
        (...continued)
case requiring the application of Taylor’s categorical approach, in the event that we
determine that the statute under which the defendant or alien was previously
convicted is categorically broader than the generic offense, we may apply the
modified categorical approach.”), with Descamps, 133 S. Ct. at 2288 (“[T]he Ninth
Circuit’s reworking [improperly] authorizes the court to try to discern what a trial
showed, or a plea proceeding revealed, about the defendant’s underlying
conduct.”), and id. at 2287 (“That approach – which an objecting judge aptly called
‘modified factual,’ . . . – turns an elements-based inquiry into an evidence-based
one.”).

                                          4
possess cocaine); see also United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th

Cir. 2001) (en banc) (not reaching the issue of whether, under the modified

categorical approach and without any divisibility analysis, a crime including

solicitation as a possible method was an aggravated felony), superseded on other

grounds as stated in Guerrero-Silva v. Holder, 599 F.3d 1090, 1092 (9th Cir.

2010). The only method of committing the crimes at issue in Leyva-Licea and

Coronado-Durazo was solicitation. Section 475.992(1)(a) punishes delivering or

attempting to deliver (as understood under federal law) marijuana as well. Thus,

under Ninth Circuit precedent at the time, the BIA rightly applied the modified

categorical approach to find Guinto guilty of delivery of or possession with intent

to deliver marijuana. As a result, it would have been futile for Guinto to present

his statutory overbreadth argument to the BIA.

      We acknowledge that Descamps was decided before the BIA rendered its

decision. Under Alvarado, we may not assume “the BIA would rigidly apply

circuit precedent when confronted with a meritorious argument that such precedent

is no longer binding.” Alvarado, 759 F.3d at 1130. Accordingly, it is true the BIA




                                          5
could have rejected our pre-Descamps case law and concluded a divisibility

analysis was necessary.2

      Nevertheless, unlike in Alvarado, Guinto had no remedy available “as of

right” to bring these issues before the BIA. See Alcaraz v. INS, 384 F.3d 1150,

1160 (9th Cir. 2004) (discretionary remedies such as motions to reopen or motions

to supplement are not remedies available “as of right”). Further, in Alvarado, the

allegedly foreclosed legal argument had been available at the very outset of the

removal proceedings. See Alvarado, 759 F.3d at 1125, 1127 (noting removal

proceedings were instituted in August 2009 whereas the intervening legal authority

was decided in January of that year). Here, Descamps was decided over a year

after Guinto exercised his last available administrative remedy as of right. Given

such circumstances, we hold the issue has been exhausted. See Alcaraz, 384 F.3d

at 1158-60 (holding there was no jurisdictional bar under 8 U.S.C. § 1252(d) to

reviewing legal issues that arose after arguments to the BIA were made).

Accordingly, we have jurisdiction to consider Guinto’s solicitation argument.




      2
        Notably, the BIA did not consider this case and, even in this appeal, the
government has argued it is not clear divisibility analysis applies. Only recently
has the BIA concluded that Descamps’ divisibility analysis applies to immigration
proceedings. See In re Chairez-Castrejon, 26 I. & N. Dec. 819, 819-20 (BIA
2016).

                                          6
      Guinto’s petition is granted because § 475.992(1)(a) is not an aggravated

felony under Sandoval.

      PETITION GRANTED AND REMANDED.




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