Randy Cabantac v. Eric Holder, Jr.
2012 U.S. App. LEXIS 17877
| 9th Cir. | 2012Background
- Cabantac, a native and citizen of the Philippines, was found removable for possession of methamphetamine under Cal. Health & Safety Code § 11377(a).
- IJ and BIA rulings held Cabantac removable based on a conviction for a controlled substance offense.
- Record included a complaint, plea colloquy, and abstract of judgment; abstract initially indicated methamphetamine.
- Amended abstract later stated possession of a controlled substance; government relied on the record as a whole to sustain removability.
- Court consolidated petition Nos. 09-71336 and 12-71459, denied sua sponte reopening and remand requests as not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the California conviction constitutes a controlled substance offense under 21 U.S.C. § 802 | Cabantac argues the record shows only a general possession offense. | Holder contends the abstract and plea show possession of methamphetamine, a controlled substance offense. | Yes; conviction supported by record showing possession of methamphetamine. |
| Whether the abstract of judgment alone suffices to prove the offense | Abstract alone may be insufficient if it does not reflect the specific drug pleaded. | Abstract, along with plea and complaint, can establish the offense. | Abstract plus plea evidence suffices to show the controlled substance offense. |
| Whether amended abstract can be considered to reflect the plea | Amended abstract postdates removal order and should be allowed to reopen. | Agency properly refused to reopen; delay and discretion apply. | No remand or reopening required; amended abstract not enough to alter result. |
| Whether the petition for review and sua sponte reopening are reviewable | Cabantac challenges BIA denial of reopening. | Agency decisions on reopening are generally not judicially reviewable. | Petition and sua sponte reopening are not reviewable; denied. |
Key Cases Cited
- Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) (distinguishes when drug type is not clearly established from the conviction record)
- Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011) (records may be read to connect plea with the drug involved)
- United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008 (en banc)) (proximate rule on how to read pleadings with abstracts and counts)
- Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005) (addressed validity when plea differs from charged offense; distinguish Ruiz-Vidal)
- Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir. 2011) (agency discretion governs reopening; review limited)