Stanley Guinto v. Sally Yates
676 F. App'x 721
| 9th Cir. | 2017Background
- Stanley Ronald Guinto pled guilty in Oregon to violating ORS § 475.992(1)(a) (delivering marijuana).
- DHS commenced removal proceedings charging he was removable as: (1) an aggravated felony and (2) a controlled-substance offense under 8 U.S.C. § 1227(a)(2).
- The IJ and then the BIA concluded his conviction qualified as an aggravated felony under the Ninth Circuit’s pre-Descamps modified categorical approach; Guinto had not argued the statute was overbroad to the BIA.
- After the BIA decision, the Supreme Court decided Descamps, which limited the modified categorical approach and emphasized divisibility; the Ninth Circuit later recognized the need for divisibility analysis.
- The panel considered whether Guinto’s failure to raise the overbreadth/solicitation argument to the BIA barred judicial review under the exhaustion requirement of 8 U.S.C. § 1252(d)(1), given Descamps was decided after Guinto exhausted his administrative remedies.
- The court granted Guinto’s petition: it held he had exhausted available remedies as of right and applied the rule that ORS § 475.992(1)(a) is not an aggravated felony under the reasoning in Sandoval.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review Guinto’s solicitation/overbreadth challenge despite that argument not being raised to the BIA | Guinto: Descamps and intervening law postdated his administrative remedies; exhaustion as of right was impossible, so federal review is available | Government: Guinto failed to exhaust because he did not present the overbreadth/solicitation argument to the BIA | Court: Jurisdiction exists — Descamps and related change in law arose after Guinto’s last available remedy as of right, so exhaustion requirement does not bar review |
| Whether ORS § 475.992(1)(a) is an aggravated felony for immigration purposes | Guinto: The statute punishes solicitation as well as delivery/attempted delivery, so it is broader than the federal aggravated-felony definition | Government: Under then-controlling Ninth Circuit precedent, the modified categorical approach could find the record showed delivery, qualifying as an aggravated felony | Court: The statute is not an aggravated felony (following Sandoval); petition granted and remanded |
Key Cases Cited
- Alvarado v. Holder, 759 F.3d 1121 (9th Cir. 2014) (exhaustion requires more than a general challenge; agency must have had unencumbered opportunity to consider the issue)
- Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004) (discretionary remedies like motions to reopen are not remedies available as of right for exhaustion)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits the modified categorical approach; divisibility is required before consulting Shepard documents)
- United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (explains the modified categorical approach under Ninth Circuit precedent prior to Descamps)
- Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) (discusses divisibility requirement post-Descamps in Ninth Circuit practice)
- United States v. Chavaria-Angel, 323 F.3d 1172 (9th Cir. 2003) (applied the modified categorical approach to Oregon § 475.992 convictions to find delivery/intent to deliver)