Cabantac v. Holder
736 F.3d 787
9th Cir.2012Background
- Cabantac, a Philippines native and lawful permanent resident, seeks review of a BIA removal order based on a California H&S Code § 11377(a) conviction for possession of methamphetamine.
- At issue is whether conviction documents prove he was convicted of a federal defined controlled substance offense, not merely a generalized state offense.
- Three conviction documents exist: the complaint, the plea colloquy, and the abstract of judgment; the abstract initially states a guilty plea to possession of methamphetamine.
- Cabantac contends the record shows a guilty plea to a generalized offense, not to methamphetamine specifically, so removal cannot be grounded in a controlled substance offense.
- The BIA denied reopening to consider an amended abstract; the agency concluded the conviction record as a whole supports removability.
- The court ultimately denies the petition, holding the amended abstract is not properly before the court but the record still establishes a removable offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the abstract of judgment suffices to prove a controlled substance offense | Cabantac contends the abstract shows only a general offense | Government argues the abstract, together with the complaint and plea, establishes a controlled substance offense | Yes; record supports removal as a controlled substance offense |
| Whether the amended abstract may be considered in this review | Amended abstract could establish specific plea to methamphetamine | amended abstract not part of administrative record and not determinative | Amended abstract not properly before court, but does not change result |
| Whether Cabantac is entitled to reopening or remand to pursue the amended abstract | Requests reopening/remand to address amended abstract | Agency acted within discretion to deny reopening/remand | Reopening/remand denied |
| Whether Vidal governs the proper use of the record to identify the charged offense under the modified categorical approach | Vidal requires specific phrasing to connect charges to the conviction | Panel distinguished Vidal and allowed reliance on the abstract | Panel's reading creates split; court should reconsider Vidal en banc |
Key Cases Cited
- Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) (distinguishes when information identifies drug vs. generic offense)
- Vidal v. Gonzales, 504 F.3d 1072 (9th Cir. 2007) (modified categorical approach requires 'as charged in the information' language)
- Snellenberger v. United States, 548 F.3d 699 (9th Cir. 2008) (en banc decision on reliability of minute orders for modification analysis)
- Descamps v. United States, 570 U.S. 254 (2013) (divisible statute and modified categorical approach clarified)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must inform defendant of deportation risks during plea negotiations)
- United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012) (confirms complexities when record shows non-federal substances)