                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 14a0525n.06

                                                      No. 13-3864                                         FILED
                                                                                                       Jul 17, 2014
                                UNITED STATES COURT OF APPEALS                                DEBORAH S. HUNT, Clerk
                                    FOR THE SIXTH CIRCUIT


MIGUEL ENRIQUEZ-VELASCO                                )
                                                       )
          Petitioner,                                  )
                                                       )
v.                                                     )                 ON PETITION FOR REVIEW
                                                       )                 FROM THE BOARD OF
ERIC H. HOLDER, JR., Attorney                          )                 IMMIGRATION APPEALS
General,                                               )
                                                       )
          Respondent.                                  )

                                                  /

BEFORE:           MOORE and McKEAGUE, Circuit Judges; and STAFFORD, District
                  Judge.*

          STAFFORD, District Judge.

          Miguel Enriquez-Velasco (“Petitioner”), a native and citizen of Mexico, petitions for review

of a final order of the Board of Immigration Appeals (the “Board”) denying his motion to reopen his

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for

review.

                                                           I.

          Petitioner entered the United States in 1999 without being admitted or paroled. On July 12,

2009, Petitioner was arrested for possession of drugs (marijuana) and possession of drug

paraphernalia (a rolled-twenty-dollar bill) in violation of Ohio law. Four days after his arrest,


          *
            The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District
 of Florida, sitting by designation.
No. 13-3864, Enriquez-Velasco v. Holder

Petitioner pleaded guilty to possession of drug paraphernalia—a fourth-degree misdemeanor under

Ohio Rev. Code § 2925.14(C)(1)—and was sentenced to thirty (30) days in the Warren County Jail.

The drug possession charge was dismissed. When he was released from custody, Petitioner was

turned over to Immigration and Customs Enforcement, an agency within the Department of

Homeland Security (“DHS”).

        On July 20, 2009, DHS initiated removal proceedings against Petitioner by issuing a Notice

to Appear, charging that Petitioner was subject to removal as “an alien present in the United States

without being admitted or paroled” pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality

Act (“INA”). 8 U.S.C. § 1182(a)(6)(A)(i). On February 24, 2010, Petitioner appeared before an

immigration judge (“IJ”) and conceded removability under § 1182(a)(6)(A)(i). The hearing was

adjourned after Petitioner’s counsel advised the IJ that Petitioner would be filing an application for

cancellation of removal.

        On January 6, 2011, Petitioner again appeared before the IJ, this time to address his

application for cancellation of removal. DHS moved to pretermit Petitioner’s application for

cancellation of removal on the ground that his drug paraphernalia conviction under Ohio Rev. Code

§ 2925.14(C)(1) rendered him ineligible for cancellation of removal pursuant to INA

§ 240A(b)(1)(C). 8 U.S.C. § 1229b(b).1 After being advised that Petitioner did not dispute his

conviction for possession of drug paraphernalia, the IJ denied Petitioner’s application for cancellation

of removal on the ground urged by DHS—namely, that Petitioner’s state-court drug-paraphernalia

conviction made him ineligible for cancellation of removal. On appeal, the Board upheld the IJ's


         1
           To be eligible for cancellation of removal, an alien has the burden of proving that he “has not been
convicted of an offense under section 1182(a)(2) . . . of this title.” 8 U.S.C. § 1229b(b)(1)(C). A “section
1182(a)(2)” offense includes “a violation of . . . any law or regulation of a State . . . relating to a controlled
substance (as defined in section 802 of Title 21).” INA § 212(a)(2)(A)(i)(II); 8 U.S.C. § 1182(a)(2)(A)(i)(II).
No. 13-3864, Enriquez-Velasco v. Holder

determination that Petitioner failed to meet his burden of showing that his state conviction for

possession of drug paraphernalia did not disqualify him for cancellation of removal under the INA.

The Board accordingly dismissed Petitioner’s appeal. Petitioner did not seek review of the Board’s

decision in this Court.

       On May 1, 2013, Petitioner filed a timely motion to reopen with the Board, asking for

reconsideration of his eligibility for cancellation of removal in light of the Supreme Court’s April 23,

2013, decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (holding that, when determining

whether an alien’s state conviction qualifies as an “aggravated felony” under the INA, the categorical

approach must be used to determine whether the state offense is comparable to an offense listed in

the INA). In essence, Petitioner argued that, under Moncrieffe, his Ohio drug-paraphernalia

conviction did not render him inadmissible and ineligible for cancellation or removal because “a

rolled 20 dollar bill” is not included in the federal definition of “drug paraphernalia” and because “a

rolled 20 dollar bill” does not “categorically” fit within the definition of a corresponding federal

offense.2 The Board denied Petitioner’s motion to reopen, explaining that Petitioner “has not

established that the Supreme Court’s decision relating to whether a state drug conviction may

constitute an aggravated felony under the [INA] effects [sic] the Immigration Judge’s determination

that [Petitioner] has not established that he is statutorily eligible for cancellation of removal.”

                                                        II.

       The only decision before this court is the Board’s denial of Petitioner’s motion to reopen.

“A motion to reopen is a form of procedural relief that asks the Board to change its decision in light




        2
            There is no corresponding federal offense for simple possession of drug paraphernalia.
No. 13-3864, Enriquez-Velasco v. Holder

of newly discovered evidence or a change in circumstances since the hearing.” Dada v. Mukasey,

554 U.S. 1, 12 (2008) (internal quotation marks omitted).

       We review the denial of a motion to reopen for an abuse of discretion. Haddad v. Gonzales,

437 F.3d 515, 517 (6th Cir. 2006). An abuse of discretion occurs when the denial of the motion to

reopen was made “without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis such as invidious discrimination against a particular race or

group.” Id. (citation & internal quotation marks omitted). “[Q]uestions of law are reviewed de novo,

but we give substantial deference to the BIA’s interpretations of the INA and its accompanying

regulations.” Kukalo v. Holder, 744 F.3d 395, 402 (6th Cir. 2011). Because the Board has broad

discretion to grant or deny a motion to reopen, a party seeking to reopen his removal proceedings

bears a heavy burden. Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007).

                                                 III.

       In his motion to reopen, Petitioner sought the Board’s reconsideration of his conviction and

application for cancellation of removal in light of Moncrieffe, a newly-decided Supreme Court case.

Petitioner made no reasoned argument, however, to support his assertion that, under Moncrieffe, his

state conviction for possession of drug paraphernalia did not disqualify him from cancellation of

removal. Indeed, he did little more than copy portions of the reporter-prepared syllabus preceding

the Supreme Court’s decision in Moncrieffe, inserting facts relevant to his case in place of the facts

pertinent to Moncrieffe. He altogether failed to explain how or why the analysis in Moncrieffe

applies to his case.

       Despite the cursory nature of Petitioner’s motion, the Board considered the decision in

Moncrieffe, concluding that Petitioner failed to establish that Moncrieffe in any way affected the
No. 13-3864, Enriquez-Velasco v. Holder

decision regarding Petitioner’s failure to prove his eligibility for cancellation of removal. The Board

distinguished Moncrieffe, which addressed the question of whether a state drug conviction

“categorically fits within the 'generic' federal definition of a corresponding aggravated felony,”

Moncrieffe, 133 S. Ct. at 1684, from Petitioner’s case, which concerns the question of whether a

conviction for possession of drug paraphernalia constitutes a violation of state law “relating to” a

controlled substance.3 Unpersuaded that Moncrieffe cast doubt on the IJ’s decision regarding the

disqualifying effect of Petitioner’s Ohio drug-paraphernalia conviction, the Board denied the motion

to reopen.

        Petitioner’s arguments before this court are equally unconvincing. Indeed, based upon our

review of Moncrieffe, the parties’ briefs, and the administrative record, we find that Petitioner has

failed to carry his heavy burden to establish that the Board abused its discretion in rejecting

Petitioner’s Moncrieffe-based arguments and denying his motion to reopen.4

        PETITION DENIED.




         3
            We note that the court in Rojas v. Att'y Gen. of the United States, 728 F.3d 203, 214-16 (3d Cir. 2013)
(en banc), decided that the question presented in Moncrieffe was qualitatively different from the question of
whether a state drug conviction "relates to" a controlled substance. While the Rojas court acknowledged that the
categorical approach is typically used to determine whether one crime fits the generic definition of another crime,
the court determined that the categorical approach is not appropriate when the question is whether a crime “relates
to” a controlled substance. Id. In that instance, the court wrote, the categorical approach is a “red herring,” the
use of which would produce “odd results.” Id. at 216, n.14. However, in Mellouli v. Holder, 719 F.3d 995,1000
(8th Cir. 2013), cert. granted, No.13-1034, 2014 WL 796807 (June 30, 2014), the Eighth Circuit endorsed the
use of the categorical approach in determining if a state drug paraphernalia conviction is a violation of the law
“relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).
         4
            Some states that have adopted the Uniform Controlled Substances Act have added a small number of
substances to the hundreds of substances listed in the federal schedules. Asserting that Ohio is one such state,
Petitioner argues—for the first time—that because the term “controlled substance” is defined more broadly by
the State of Ohio than by the federal Controlled Substances Act, his conviction does not necessarily relate to a
federally-controlled substance and, therefore, is not a conviction that makes him ineligible for cancellation of
removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Having been raised for the first time on appeal of the Board’s
denial of Petitioner’s motion to reopen, this issue is not properly before us for review.
