                                                                             FILED
                            NOT FOR PUBLICATION                                FEB 13 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

JULIO ALVARADO-OCHOA,                           No. 10-73686

              Petitioner,                       Agency No. A077-139-264

  v.
                                                ORDER*
ERIC H. HOLDER JR., Attorney General,

              Respondent.


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

                            Submitted January 14, 2013**
                              San Francisco, California

Before: NOONAN, TASHIMA, and GRABER, 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. Fed. R. App. P. 34(a)(2).
      Respondent’s Motion to Remand is GRANTED. The case is remanded to

apply In re Davey, 26 I. & N. Dec. 37 (B.I.A. 2012), as appropriate.1

      The parties shall bear their own fees and costs on appeal. This order shall

serve as the mandate of this court.




      1
        The dissent asserts that we are implicitly approving In re Davey "as
properly decided." We are not. The government has asked for an opportunity to
allow the BIA to reconsider this case. On reconsideration, the BIA may apply In re
Davey, or it may choose to decide the case on other grounds, in which event any
substantive decision that we might make about In re Davey would be premature.
Moreover, even if the BIA decides to apply In re Davey here, and one of the parties
petitions for review, then we can review the concrete application of that rule to an
issue that the BIA will have decided in this case.

                                         2
                                                                                FILED
Alvarado-Ochoa v. Holder, No. 10-73686                                           FEB 13 2013

                                                                            MOLLY C. DWYER, CLERK
TASHIMA, dissenting:                                                          U.S. COURT OF APPEALS



      I dissent from the Order because of its highly questionable methodology and

assumptions.

      The primary issue involved in this petition for review is whether petitioner’s

drug paraphernalia conviction under Arizona law is a drug related conviction under

8 U.S.C. § 1227(a)(2)(B)(i), such that it renders petitioner removable. The BIA

held that it was and petitioner petitioned for review of that decision. Shortly before

the calendared date for oral argument, the government moved to remand this case

to the BIA for application of In re Davey, 26 I & N Dec. 37 (B.I.A. 2012).

Petitioner opposes the remand motion.

      The Order grants the motion and directs that “[t]he case is remanded [to the

BIA] to apply In re Davey . . . .” It is necessarily implicit in the Order that we are

approving In re Davey as properly decided and, therefore, entitled to Chevron

deference as a reasonable interpretation of an ambiguous statute. Why else would

we order the BIA “to apply In re Davey”? Yet, we have done so without

examining the case, without providing any analysis or rationale for our decision

and, indeed, even without any briefing or argument by the parties.1


      1
            In its footnote, the majority makes two speculative assertions which
should not be left unanswered. (1) The majority first asserts that “the BIA may
      Moreover, In re Davey has another aspect involving a question we have

never examined. That is, when a state drug paraphernalia statute fails the Taylor

categorical analysis, whether further examination of the conviction at issue should

be under the modified categorical approach or the circumstance-specific approach,

which the BIA adopted in In re Davey. On this question also, we are adopting the

BIA’s circumstance-specific approach without analysis or examination when we

summarily grant Chevron deference to that case by directing the BIA to apply In re

Davey.

      Because I would first decide whether In re Davey was correctly decided and,

thus, entitled to Chevron (or any other) deference before remanding this case to the

BIA to “apply” In re Davey, I dissent from the majority’s methodology, which

effectively decides this case, and an important and substantial issue, without


apply In re Davey, or it may choose to decide the case on other grounds . . . .” This
is pure, unfounded speculation. The government asks for remand specifically “to
determine whether Petitioner is removable . . . in light of Matter of Davey,” and the
Order grants remand expressly “to apply In re Davey . . . .” As for deciding the
case “on other grounds,” the BIA has already had the opportunity to decide the
case on all such grounds and there is no reason why it should be given a second
bite of the apple as to any ground other than In re Davey; that is why the Order
does not leave room for reconsideration on any ground other than Davey. (2) The
majority also asserts that “we can review the concrete application” of In re Davey
on a second petition for review. That may be so, but we cannot review whether
Davey itself is good law – whether it is entitled to Chevron deference – because we
have necessarily already decided that issue by this remand Order and it is now the
law of the case.

                                         -2-
thought or analysis.




                       -3-
