                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CRISANTO CARINO RAGASA,                  No. 12-72262
                     Petitioner,
                                         Agency No.
                v.                      A037-485-221

ERIC H. HOLDER, JR., Attorney
General,                                  OPINION
                        Respondent.


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

                 Argued and Submitted
   February 20, 2014—University Of Hawaii, Manoa

                 Filed April 28, 2014

Before: Michael Daly Hawkins, M. Margaret McKeown,
          and Carlos T. Bea, Circuit Judges.

             Opinion by Judge McKeown
2                      RAGASA V. HOLDER

                           SUMMARY*


                           Immigration

    The panel granted Crisanto Ragasa’s petition for review
of the Board of Immigration Appeals’ decision finding him
removable based on his Hawaii state court drug conviction.

   The panel held that Ragasa’s conviction for attempted
promoting a dangerous drug was based on a crime the
elements of which encompassed actions beyond those
required pursuant to the federal Controlled Substances Act,
and thus under the categorical approach the state conviction
was not a ground for removability.

    The panel denied Ragasa’s citizenship claim, holding that
under the law in effect at the time of the relevant events
Ragasa did not acquire citizenship from his adoptive parents.
The panel held that former Immigration and Nationality Act
§ 320(a) does not apply to adopted children, and that he did
not acquire citizenship under former INA § 320(b) because he
was not residing in the U.S. nor was he in the custody of his
adoptive parents at the time they naturalized. The panel also
held that because Ragasa’s adoptive parents did not become
his legal parents until fourteen years after his birth he could
not obtain citizenship through them under former INA
§ 301(a)(7).




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    RAGASA V. HOLDER                        3

                        COUNSEL

M. Cora Avinante (argued), Law Office of M. Cora Avinante,
Honolulu, Hawai‘i, for Petitioner.

Theodore William Atkinson (argued), Trial Attorney; Stuart
F. Delery, Acting Assistant Attorney General; Ernesto H.
Molina, Assistant Director; S. Nicole Nardone, Trial
Attorney, Civil Division, United States Department of Justice,
Washington, D.C., for Respondent.


                         OPINION

McKEOWN, Circuit Judge:

    Crisanto Ragasa was born in the Philippines in 1966 to
two married Filipino citizens (his “biological parents”). At
the age of fourteen, he immigrated to the United States and
was adopted by his uncle and aunt (his “adoptive parents”),
both naturalized U.S. citizens. Years later in 2008, Ragasa
was convicted in Hawai‘i state court for “Attempted
Promoting a Dangerous Drug in the First Degree,” in
violation of Haw. Rev. Stat. §§ 705-500(1)(b), 712-
1241(1)(b)(ii). The government initiated immigration
proceedings against Ragasa, a lawful permanent resident,
charging him as a removable alien because of his drug-related
conviction. The immigration judge (“IJ”) ordered Ragasa
removed, and the Board of Immigration Appeals (“BIA”)
dismissed his appeal from the IJ’s removal order and denial
of his application for cancellation of removal. Ragasa timely
petitions for review of the BIA’s decision. We have
jurisdiction under 8 U.S.C. § 1252, and we grant the petition.
4                      RAGASA V. HOLDER

I. Citizenship Claim

    Contrary to his view, Ragasa did not automatically
acquire U.S. citizenship from his adoptive parents under
former Section 320 and 301(a)(7) of the Immigration and
Nationality Act (“INA”). In analyzing this issue de novo, we
look to “the law in effect at the time the critical events giving
rise to eligibility occurred,” which in this case are the dates of
Ragasa’s birth (1966), his entry into the United States (1980),
and his adoption (1980). Minasyan v. Gonzales, 401 F.3d
1069, 1074–75 (9th Cir. 2005).

    To begin, as an adopted child, Ragasa does not acquire
citizenship under former Section 320(b) because he was
neither “residing in the United States” nor “in the custody of
his adoptive parents” at the time they naturalized. An Act to
Amend the INA, Pub. L. No. 95-417, 92 Stat. 917 (1978)
(codified at 8 U.S.C. § 1431 (Supp. 1978)).1 Nor does Ragasa


   1
     At the time of Ragasa’s adoption and arrival to the United States,
former Section 320 of the INA provided:

        (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
        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
                            RAGASA V. HOLDER                                 5

qualify for citizenship under former Section 320(a) because
Section 320(b), not Section 320(a), applies to adopted
children. Id. Ragasa’s contrary view rests on an
interpretation of the statute that ignores the statutory text and
renders Section 320(b) superfluous. Chubb Custom Ins. Co.
v. Space Sys./Loral, Inc., 710 F.3d 946, 966 (9th Cir. 2013)
(“It is a well-established rule of statutory construction that
courts should not interpret statutes in a way that renders a
provision superfluous.”).

    Ragasa’s citizenship claim under former Section
301(a)(7) is equally unavailing because that section requires
one parent to be a U.S. citizen at the time of the child’s birth
outside of the United States and the other to be an alien. An
Act to Amend Section 301(a)(7) of the INA, Pub. L. No. 89-
770, 80 Stat. 1322 (1966) (codified at 8 U.S.C. § 1401(a)(7)
(Supp. 1966)).2 Neither of Ragasa’s biological parents was


          eighteen years.

      (b) Subsection (a)(1) of this section shall apply to a child adopted
      while under the age of sixteen years who is residing in the United
      States at the time of naturalization of such adoptive parent, in the
      custody of his adoptive parents, pursuant to a lawful admission
      for permanent residence.

8 U.S.C. § 1431 (Supp. 1978). Notably, an earlier version of former
Section 320, in effect during Ragasa’s birth, excluded adopted children
like him from obtaining citizenship under its provisions altogether. See
8 U.S.C. § 1431(b) (1964).
  2
   At the time of Ragasa’s birth in 1966, Section 301(a)(7) of the INA
provided:

          (a) The following shall be nationals and citizens of the
          United States at birth:
6                       RAGASA V. HOLDER

a U.S. citizen when he was born. Although Ragasa’s
adoptive parents were naturalized U.S. citizens at the time of
his birth, they did not become his legal parents until fourteen
years later. Hence, Ragasa cannot obtain citizenship through
his adoptive parents under former Section 301(a)(7).

    Neither of the cases cited by Ragasa—Scales v. INS,
232 F.3d 1159 (9th Cir. 2000) and Solis-Espinoza v.
Gonzales, 401 F.3d 1090 (9th Cir. 2005)—supports his
argument that a foreign-born child, whose biological parents
were not U.S. citizens at the time of his birth, obtains
citizenship under Section 301(a)(7) through a subsequent
adoption by U.S. citizens. Unlike in those cases, Ragasa was
not “born into a marital relationship between a citizen and an
alien.” Martinez-Madera v. Holder, 559 F.3d 937, 941 (9th
Cir. 2009); see Solis-Espinoza, 401 F.3d at 1091; Scales,
232 F.3d at 1161–62; see also Marquez-Marquez v. Gonzales,
455 F.3d 548, 559 (5th Cir. 2006) (distinguishing Scales and


         ...

         (7) 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) (Supp. 1966). By 1980, the year of Ragasa’s
adoption, Section 301(a)(7) had been redesignated as Section 301(g), but
otherwise remained the same in substance as the version of the statute in
effect at the time of Ragasa’s birth. An Act to Repeal Certain Sections of
Title III of the INA, Pub. L. No. 95-432, 92 Stat. 1046 (1978) (codified at
8 U.S.C. § 1401(g) (Supp. 1978)).
                    RAGASA V. HOLDER                        7

Solis-Espinoza because neither of “petitioner’s biological
parents was married to a U.S. citizen at the time of the
petitioner’s birth”). We therefore deny Ragasa’s citizenship
claim.

II. Removability

    Nevertheless, we conclude on de novo review that Ragasa
is not removable as charged because his state conviction does
not constitute a predicate offense for purposes of
removability under Section 237(a)(2)(B)(i) of the INA,
8 U.S.C. § 1227(a)(2)(B)(i). See Mielewczyk v. Holder,
575 F.3d 992, 994–95 (9th Cir. 2009). To establish
removability under Section 237(a)(2)(B)(i), the government
must prove that the drug underlying Ragasa’s state conviction
is covered by Section 102 of the federal Controlled
Substances Act (“CSA”). Ruiz-Vidal v. Gonzales, 473 F.3d
1072, 1076 (9th Cir. 2007), abrogated on other grounds by
Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011). In
determining whether the government has discharged this
burden, we employ the analytical framework established in
Taylor v. United States, 495 U.S. 575 (1990), turning first to
the categorical approach. Mielewczyk, 575 F.3d at 994.

    Under the categorical approach, we examine “only the
statutory definition of the crime to determine whether the
state statute of conviction renders an alien removable under
the statute of removal,” id., without looking to the actual
conduct underlying the petitioner’s offense. Ragasa is not
categorically removable under Section 237(a)(2)(B)(i) of the
INA because his statute of conviction criminalizes at least
two substances that are not similarly proscribed by the CSA:
benzylfentanyl and thenylfentanyl. Compare Haw. Rev. Stat.
§§ 329-14(b)(56) & (57) (2003); Haw. Rev. Stat. § 712-1240
8                       RAGASA V. HOLDER

(2004); Haw. Rev. Stat. § 712-1241(1)(b)(ii) (2006), with
21 U.S.C. § 812; 21 C.F.R. §§ 1308.11–15.3

    The categorical approach does not end our inquiry.
Because the statute of conviction “identifies a number of
controlled substances by referencing various [state] drug
schedules and statutes and criminalizes the possession of any
one,” it is a “divisible” statute, and we may resort to the
modified categorical approach to determine whether Ragasa’s
crime of conviction is a removable offense.4 See Coronado
v. Holder, — F.3d — , No. 11-72121, 2014 WL 983621, at
*3–5 (9th Cir. Mar. 14, 2014) (citing Descamps v. United
States, 133 S. Ct. 2276, 2281, 2283–85 (2013)). Under the
modified categorical approach, we review “a limited set of


    3
     Although benzylfentanyl and thenylfentanyl were temporarily added
on an emergency basis to Schedule I of the CSA in 1985, the listing
expired after a year. Schedules of Controlled Substances, 50 Fed. Reg.
43,698, 43,701 (Oct. 29, 1985); see also Joint Resolution Making
Continuing Appropriations, Pub. L. No. 98-473, 98 Stat. 1837 (1984)
(codified at 21 U.S.C. § 811(h)(2) (Supp. 1984)). Since the temporary
listing expired in 1986, these substances have not been permanently added
to the CSA. United States v. Madera, 521 F. Supp. 2d 149, 155 & n.4 (D.
Conn. 2007) (“[B]enzylfentanyl and thenylfentanyl have not been listed
on the federal controlled substance schedules since 1986.”).
    4
    Although the BIA did not apply the modified categorical approach,
remanding this matter to the agency to conduct the analysis in the first
instance is not warranted for several reasons. See Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1133–34 (9th Cir. 2006) (en banc) (declining to
remand to BIA and applying modified categorical approach in first
instance). First, the documents of conviction in the record “cannot
possibly be interpreted” to establish Ragasa’s removability; second, there
is no possibility that new evidence has developed since the BIA’s
erroneous decision; third, the BIA has already considered the issue of
Ragasa’s removability; and fourth, and most importantly, at argument, the
government declined to request remand. Id.
                        RAGASA V. HOLDER                               9

documents in the record of conviction: the indictment, the
judgment of conviction, jury instructions, a signed guilty
plea, or the transcript from the plea proceedings.” Medina v.
Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005) (internal
quotation marks omitted). As the government candidly
acknowledged during oral argument, the documents of
conviction in the record do not establish that Ragasa’s state
conviction involved a controlled substance listed in the CSA.
Because the government has not carried its burden of proving
Ragasa’s removability by clear and convincing evidence, we
grant the petition and vacate the order of removal. See
Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th Cir. 2004).5

     PETITION GRANTED.




 5
   On February 24, 2014, we ordered the United States to release Ragasa
from custody. In light of our holding that Ragasa is not removable, we
need not address Ragasa’s final argument that the agency erred by denying
his request for cancellation of removal.
