U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

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Pope, John Martin DHS/ICE Office of Chief Counsel - EAZ
Pope & Associates Eloy Detention Ctr, 1705 E. Hanna Rd
320 E. McDowell Rd., Ste. 220 Eloy, AZ 85131
Phoenix, AZ 85004

Name: PIMBER CIREROL, JOSE LUIS A 019-117-585

Date of this notice: 2/15/2017

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

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Jose Luis Pimber-Cirerol, A019 117 585 (BIA Feb. 15, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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PIMBER CIREROL, JOSE LUIS DHS/ICE Office of Chief Counsel - EAZ
A019-117-585 Eloy Detention Ctr, 1705 E. Hanna Rd
1705 E. HANNA RD Eloy, AZ 85131
ELOY, AZ 85131

Name: PIMBER CIREROL, JOSE LUIS A 019-117-585

Date of this notice: 2/15/2017

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

Falls Church, Virginia 22041

File: AOI 9 117 585 -Eloy, AZ Date:

In re: JOSE LUIS PIMBER-CIREROL FEB 1 5 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jolm M. Pope, Esquire

ON BEHALF OF DHS: Megan McLean

Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(II)] -

Controlled substance violation

APPLICATION: Termination of proceedings

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.

ORDER: The appeal is sustained, and the proceedings are terminated.

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FOR THE BOARD c:::::::::..

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ELOY, ARIZONA

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File: A019-117-585 February 4, 2016

In the Matter of

)
JOSE LUIS PIMBER CIREROL ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: Section 212(a)(2)(A)(i)(ii) of the Immigration and Nationality Act,

having been convicted of the essential elements of a violation of
law related to a controlled substance.

APPLICATIONS:

ON BEHALF OF RESPONDENT: Mr. John Pope, esquire

ON BEHALF OF OHS: Ms. Megan McClain, Assistance Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico who was accorded lawful

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

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deferred inspection.

On that same date, the Department of Homeland Security issued a Notice

to Appear against the respondent charging him as being subjected to removal as

referenced above.

During master calendar hearings, the respondent had denied the first

allegation pertaining to citizenship or naturalization in this country. In essence, the

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

burden to establish his citizenship claim. See Exhibit 17.

With the citizenship claim not being established, the court finds the

removal proceedings to be proper. Respondent, through counsel, had admitted that

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

offense of unlawful possession of drug paraphernalia in violation of Section 13-3415 of

the Arizona Revised Statute for which he was sentenced to 18 months of probation.

A019-117-585 2 February 4, 2016

The Department of Homeland Security had submitted documentary evidence to
establish the denied allegations as contained in Exhibit 2 and Exhibit 13. Based upon

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the court's review of the documentary evidence, the specific drug listed as it states in

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.

Please see the next page for electronic

signature
LINDA I. SPENCER-WALTERS
Immigration Judge

A019-117-585 3 February 4, 2016

I r 0

//s//
Immigration Judge LINDA I. SPENCER-WALTERS

spencerl on March 14, 2016 at 7:52 PM GMT

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A019-117-585 4 February 4, 2016