Jose Luis MEDINA-LARA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 13-70491.
United States Court of Appeals, Ninth Circuit.
Filed Oct. 10, 2014.
771 F.3d 1106
Argued and Submitted Aug. 25, 2014.
Stuart F. Delery, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Brendan P. Hogan (argued), Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: JOHN T. NOONAN, MICHAEL DALY HAWKINS, and MORGAN CHRISTEN, Circuit Judges.
ORDER AND OPINION
ORDER
The Opinion filed September 19, 2014, and appearing at 767 F.3d 801 (9th Cir. 2014), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.
OPINION
HAWKINS, Circuit Judge:
Jose Medina-Lara (Medina), a Mexican citizen and lawful permanent resident
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Immigration authorities admitted Medina as a lawful permanent resident in 2002. In 2005, a California court convicted Medina of violating
After he completed his sentence for the § 11377 conviction, the Department of Homeland Security (DHS) took Medina into custody and initiated removal proceedings.1 Although the charging documents in the record are somewhat unclear, it appears that DHS alleged that the drug convictions render Medina removable because each is both an aggravated felony and a conviction relating to a controlled substance under the INA.2 DHS further alleged the § 12022 conviction renders Medina removable because it is a firearm offense under the INA.3 Medina denied these allegations and, in the alternative, applied for cancellation of removal.4
Proceedings before the agency were protracted. Medina first appeared before an Immigration Judge (IJ) in San Francisco, California, on November 17, 2009. Medina requested an initial continuance to obtain counsel and later requested additional time to pursue a U-visa. For its part, DHS requested several continuances to supplement the record with documents pertaining to Medina‘s convictions. This was necessary because the parties and the IJ seemed to agree early on in the proceedings that the drug convictions were not categorically predicate offenses under the INA, thus requiring application of the modified categorical approach as described in Shepard v. United States, 544 U.S. 13 (2005).
Two and a half months later, the parties reconvened. The IJ, noting that the 2004 complaint contained a complicated set of charges, called the minutes of the state court proceedings a jumble and once again asked the government to clarify if it had requested a transcript of Medina‘s 2005 plea colloquy, saying, I think [the transcript] ought to be requested. Because the government was not sure if it had requested the documents, the IJ gave the government one more month to supplement the record. Medina, by now detained for five months, consented to the continuance even though he was ready to proceed on that date.9 Finally, at a June 6, 2010, hearing, the government admitted it was unable to produce the transcript and instead attempted to submit a probation report to clarify the nature of Medina‘s convictions. The IJ excluded that report under Shepard.10
Though the government neither produced the requested plea colloquy nor any additional unambiguous documents, the IJ nevertheless ordered Medina‘s removal, holding that each drug conviction is both an aggravated felony and a controlled substance offense under the INA and that the § 12022 conviction is a firearm offense under the INA. Medina appealed to the Board. In an order dismissing Medina‘s appeal (the 2010 order), the Board held that Medina was removable on all five grounds identified by the IJ; put another way, the Board reached a conclusion as to all of DHS‘s allegations.
Medina then sought review in this court. Before we could hear the case on the
The Board remanded the reopened case to the IJ for reconsideration of Medina‘s cancellation application. At this point, litigation virtually began anew. Following a transfer of venue to the immigration court in Tacoma, Washington, where Medina was detained, Medina renewed his efforts to terminate removal proceedings based on his theory that none of his convictions suffices as a predicate for removal, initiated state post-conviction proceedings in an effort to vacate his California convictions, and restarted his efforts to obtain a U-visa. DHS opposed these efforts and sought a new removal order. The Tacoma-based IJ ordered Medina‘s removal. The IJ held that § 11351, though not categorically an aggravated felony or a controlled substances offense, is divisible and that an application of the modified categorical approach showed that the § 11351 conviction constitutes both an aggravated felony and a controlled substance offense. The IJ further held that § 12022 is categorically a firearm offense under the INA, and thus ordered Medina removed on that ground as well. The IJ did not address the § 11377 conviction. Medina appealed to the Board, which affirmed, also without addressing the § 11377 conviction. Medina again sought review in this court.
JURISDICTION AND STANDARD OF REVIEW
Notwithstanding
Where, as here, the Board incorporates the IJ‘s decision into its own without citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will review the IJ‘s decision to the extent incorporated. Ahir v. Mukasey, 527 F.3d 912, 916 (9th Cir. 2008) (citation omitted). Thus, we refer to the Board and IJ collectively as the agency. We review the agency‘s legal conclusions de novo. Malilia, 632 F.3d at 602.
ANALYSIS
I. The § 11351 Conviction
We hold that Medina‘s § 11351 conviction is neither an aggravated felony nor controlled substance offense under the INA.
A. Breadth and Divisibility
To determine whether the § 11351 conviction is a predicate aggravated felony or controlled substance offense, we use the framework set out in Taylor v. United States, 495 U.S. 575 (1990), as refined by its progeny, most notably Descamps v. United States, 133 S.Ct. 2276 (2013).11 The Taylor-Descamps framework lays out a three-step process for determining whether a specific
conviction is a predicate offense mandating removal under the INA.12 At the first step, we ask whether the statute of conviction is a categorical match to the generic predicate offense; that is, if the statute of conviction criminalizes only as much (or less) conduct than the generic offense. Taylor, 495 U.S. at 600; Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2014). If so, the inquiry ends, because the conviction categorically constitutes a predicate offense. If not, we move on to step two and ask if the statute of conviction‘s comparatively overbroad element is divisible.13 If not, then our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense. See Descamps, 133 S.Ct. at 2286. But if the overbroad element (or elements) is divisible, we then continue to the third step, an application of the modified categorical approach, which we describe in more detail below.
Here, because the agency proceeded to step three and relied upon a modified categorical analysis, we, too, must consider all three issues: breadth, divisibility, and the modified categorical approach. The parties’ concessions make the analysis simple at steps one and two. Our focus is on the controlled substance element of § 11351.14 The government concedes that § 11351 is not a categorical match to the generic offense, because California‘s list of controlled substances includes one or more substances not controlled by federal law. See also Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010) (We have previously found that California law regulates the possession and sale of many substances that are not regulated by the [federal] CSA.). This concession ushers us to step two, where Medina concedes that our recent decision in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), forecloses his previous argument that § 11351‘s controlled substance element is indivisible. Based on this concession, we assume, without deciding, that § 11351‘s controlled substance element is divisible; that is, that the specific controlled substance (e.g., cocaine) is an element of the crime.
B. Modified Categorical Approach
We now confront the third step in the Taylor-Descamps procedure: an ap
We permit[ ] reliance on an abstract of judgment in combination with a charging document to establish that the defendant pled guilty to a generic crime under the modified categorical approach. Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1040 (9th Cir. 2011). Sitting en banc, we have held that [i]n order to identify a conviction as the generic offense through the modified categorical approach, when the record of conviction comprises only the indictment and the judgment, the judgment must contain the critical phrase ‘as charged in the Information’ United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (quoting Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir. 2004)).
Subsequently, we have not been so exacting as to require that the phrase as charged in the Information appear on the abstract of judgment. E.g., Cabantac v. Holder, 736 F.3d 787 (9th Cir. 2012) (per curiam) (looking to the allegations in a complaint where the abstract of judgment and transcript of the plea colloquy clearly referenced the count to which the defendant pleaded guilty); id. at 793-94 (We hold that where, as here, the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count.); Ramirez-Villalpando, 645 F.3d at 1041 (similar).
However, we have never retreated from Vidal‘s core requirement: When a court using the modified categorical approach to determine whether an underlying conviction is a predicate offense relies solely on the link between the charging papers and the abstract of judgment, that link must be clear and convincing. Put another way, where, as here, the government bears the burden of proof to show by clear and convincing evidence that the § 11351 conviction is a predicate offense,
The agency relied on two Shepard-approved documents, a written, amended complaint and an abstract of judgment, and so we look only to these. The amended complaint, which alleges five counts of misconduct, seems to have two docket numbers. The first, typewritten, is 04121514. The second, handwritten, is SS 043284. The complaint is marked Filed in Court on April 20, 2005. Count 003 of the complaint alleges that on or about December 20, 2004, the crime of possession for sale of a controlled substance, in violation of Section 11351 of the Health and Safety Code, a felony, was committed by Jose Luis Medina, who did willfully and unlawfully possess for sale a controlled substance, to wit, cocaine.15
Box 1 on the abstract of judgment lists Medina‘s two convictions. The first row in this box deals with Medina‘s § 11351 conviction. (The second row pertains to the § 11377 conviction. We discuss that conviction below.) Under Count, the document lists 3A. Under Code, it lists HS. Under Section No., it lists 11351. Under Crime, it lists Poss cont subs. Under Year Crime Committed, it lists 2004. And under Date of Conviction, it lists 04-20-05.16
Box 2 pertains to Enhancements. The first line in this box (and the only line containing any information) lists under Count the number 3 and under Enhancement the reference to PC 12022(c).17 The only other relevant box on this form appears toward the top-right corner. It is labeled -A and contains this number: SS043284A.
Here, the government has failed to carry its burden of showing a clear and convincing link between the abstract and the charging papers. The abstract states Medina pleaded to count 3A, not count 3 as it is denominated in the complaint. The Tacoma Immigration Judge posited that the 3A reflected that the third count of the complaint contained both the § 11351 charge and the § 12022 enhancement, in that order, and so the A referred to the main charge rather than the count as a whole or the enhancement. The government defends this theory and also advances its own, namely, that the 3A refers to the -A box toward the upper right-hand side of the abstract, in which a docket number is printed.
While these are both plausible explanations of what the abstract might mean, they suffer a common and fatal flaw.18 If, as the IJ posited, the 3A were a function of the bifurcation of the third count of the complaint, we would expect the enhancement listed on this same abstract to be coded 3B. Likewise, as the government argues in the alternative, if the A in the 3A relates to the case number in the corner box, we would expect the enhancement to be coded 3A. But the enhancement is coded 3 with no letter appended, casting significant doubt on both of the government‘s theories.
While the government‘s theories are certainly plausible, just as plausible is that the A in 3A stands for amended. Indeed, the record suggests that count 3 might have been amended beyond even the written amendment in the administrative record. The San Francisco IJ noted that there is a disconnect between the charging document and the abstract because the counts don‘t correspond. By way of explaining why this might be, the IJ went on to speculate that there must have been a super[s]eding charging document at some point. The DHS attorney seemed to agree, saying, We need to get the super[s]eding indictment. Moreover, because California allows for indictments to be amended orally in open court, see People v. Sandoval, 140 Cal.App.4th 111, 43 Cal.Rptr.3d 911, 926-27 (2006), there would not necessarily be any written record of a superseding indictment in the state court papers.
The docket number on the abstract also has an unexplained A appended to it. The IJ speculated that this extra letter was the result of a clerical error. Standing alone, perhaps this would not negate an otherwise clear and convincing showing. But, as we have discussed above, this extra letter is far from the only ambiguity in the purported link between the complaint and the abstract and may also refer to an amended complaint not present in the administrative record.
We note that the record does not contain any serious suggestion that Medina was apprehended with any substance other than one controlled by federal law. But, as we observed above, under Descamps, whether Medina actually possessed or purchased, for sale, cocaine makes no difference. 133 S.Ct. at 2286. We must look only to the elements to which Medina pleaded guilty. Because on this record it is not clear and convincing what Medina pleaded guilty to, it has not been established that his § 11351 conviction is an aggravated felony or a controlled substance offense.
II. The § 12022 Conviction
Medina also challenges the agency‘s holding that his § 12022 conviction19 is a firearm offense as that term is defined by
For this proposition, the agency relied on Gil v. Holder, 651 F.3d 1000 (9th Cir. 2011). Indeed, Gil seems on point, and if Gil were still good law, it would appear to preclude Medina‘s challenge. Recognizing this, Medina directs us to our recent decision in United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014), which holds that Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), overruled Gil. The government contends that Aguilera-Rios does not control the outcome here.
Medina has the better argument. The issue in Gil was whether California‘s definition of firearm was a categorical match to the federal definition. The INA expressly excludes antique firearms from the generic definition of a firearm. See
Thus, a plain language comparison of the statutes would suggest that § 12001(b) is overbroad.
However, the Board had determined in Matter of Mendez-Orellana, 25 I. & N. Dec. 254, 255-56 (BIA 2010), that the antique firearm exception was an affirmative defense to removability, and Gil accepted that reading of the statute. Because recourse to a hypothetical affirmative defense (i.e., one not actually advanced in the underlying proceeding) may not necessarily impact a subsequent court‘s Taylor analysis of a statute of conviction, Gil held that California‘s definition of a firearm categorically matched the federal definition. Cf. Aguilera-Rios, 769 F.3d at 636 n. 4 (We are not holding that Gil‘s distinction between affirmative defenses and elements of a crime is invalid for all categorical analyses. Rather, we read Moncrieffe as applying particularly to definitional provisions, and as holding that as to such provisions, the allocation of the burden of proof is not relevant to a categorical analysis.).
Aguilera-Rios holds that Moncrieffe implicitly rejects Gil‘s analysis and mandates the conclusion that California‘s firearm definition is overbroad. 769 F.3d at 635-36. We do not repeat Aguilera-Rios‘s reasoning, here; as a three-judge panel, our task is to determine whether it binds us, or if, as the government suggests, Aguilera-Rios is distinguishable. We hold that Aguilera-Rios applies to any California statute based on the definition of firearm formerly appearing at § 12001(b). Although the underlying conviction in Aguilera-Rios was obtained under former
The government argues that there is only a theoretical possibility and not a realistic probability that California would prosecute an individual under § 12022(c) where the firearm in question was antique. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). To support this argument, the government points to the absence of any reported California case upholding a § 12022(c) conviction based on possession of an antique firearm. By contrast, Medina notes that § 12022(c) simply incorporates by reference the definition of firearm appearing at former § 12001(b), and that there are a good many cases in which California obtained a conviction based on that definition in which the firearm in question was antique.
Medina is correct that our inquiry must focus on California‘s interpretation of former § 12001(b) rather than convictions based on § 12022(c). No conviction could have arisen under former § 12001(b), because it simply defined the term firearm as used in Title 2 of Part 4 of the California Penal Code. Other statutes in that Title criminalize conduct. It does not matter if the conduct is criminalized by former § 12021(c)(1), as in Aguilera-Rios; by § 12022(c), as here; or by former § 12025(a), as in Gil. Because the common link in these cases is the § 12001(b) definition of firearm, our analysis should center on that statute. Indeed, the agency implicitly conceded as much when it cited Gil to sustain the firearms charge against Medina. Because Gil analyzed § 12025(a), the Board could have applied it to Medina‘s case only if Gil‘s holding was rooted in the definition appearing at former § 12001(b).
Having framed the inquiry correctly, Medina‘s challenge easily passes the Duenas-Alvarez bar. California obviously
Although the agency did not assess the divisibility of former § 12001(b), we may proceed to do so without first remanding to the Board. Divisibility is a purely legal question which does not require any additional fact-finding. Cf. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1080 (9th Cir. 2007) (declining remand where no further fact-finding remains to be done). We owe no deference to the Board‘s interpretation of a criminal statute it does not administer, see Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133 (9th Cir. 2006) (en banc), meaning that if we remanded to the Board to determine whether former § 12001(b) is divisible, we would review that conclusion de novo rather than under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th Cir. 2008). In short, the interests of judicial and administrative economy dictate that we consider divisibility at this juncture.
Former § 12001(b) is indivisible. As we discuss above, the statute does not even mention antique firearms. Like
III. Disposition of the Petition
Finally, we must consider how to dispose of this petition. To recap, because we have determined that, as a matter of law, Medina‘s convictions under § 11351 and § 12022 are not predicate offenses for removal under the INA, there is no reason to remand on those counts. There remains, however, the matter of Medina‘s § 11377 conviction.
Medina asks that we remand with instructions to terminate the removal proceedings outright. This would be contrary to our ordinary practice of remanding for
First, the government‘s charge of removability based on the § 11377 conviction suffers the same legal defect as the agency‘s decision to order removal based on the § 11351 conviction: There is no clear and convincing evidence in the record linking the abstract of judgment and the charging document. Where, as here, only purely legal issues remain, it would serve no purpose to remand to the agency. Karimi v. Holder, 715 F.3d 561, 565 (4th Cir. 2013); see also Ruiz-Vidal, 473 F.3d at 1080 (declining remand in similar situation).
Second, the government has not suggested how it would cure this deficiency on remand. In the initial round of proceedings, the San Francisco IJ gave the government fair warning that it had a flimsy record in this case. Anticipating the eventual need to turn to the modified categorical approach, the IJ granted many continuances, several of which were for the express purpose of allowing the government to supplement the record. And while the government could have introduced additional evidence before the Tacoma IJ, it did not do so. The government‘s failure over the course of several years to produce any Shepard-compliant documents relevant to the § 11377 conviction suggests its ultimate inability to do so. Cf. Ruiz-Vidal, 473 F.3d at 1080 (declining to remand where the record on remand would consist only of those documents already in the record).
Third, we note that in its 2010 order the Board affirmed the San Francisco IJ‘s determination that the § 11377 conviction rendered Medina removable. The Board‘s subsequent sua sponte reopening of the case vacated that order, Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc), and so it is not before us today. We do not know why the agency, which once believed that the § 11377 conviction was sufficient to order removal, decided to ignore that conclusion in the second round of administrative proceedings. But it is clear that DHS has had ample opportunity to build the record. Two different IJs and the Board have considered the § 11377 conviction, but ultimately did not rest their decision upon that ground. The government has given us no reason to provide it a third bite at the apple, Siwe v. Holder, 742 F.3d 603, 611-12 (5th Cir. 2012) (internal brackets omitted) (quoting Zhu v. Gonzales, 493 F.3d 588, 602 (5th Cir. 2007)), especially since it has considered the issue, see Pascua v. Holder, 641 F.3d 316, 319 (9th Cir. 2011) (denying remand where agency had considered a potentially dispositive issue twice previously).
Fourth, under our case law, the government is precluded from relitigating the § 11377 issue. In the immigration context, a party is precluded from relitigating an issue where (1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits. Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012). Here, the government put the § 11377 issue at stake when it charged Medina with removability on the basis of that conviction. The issue was actually litigated before the San
CONCLUSION
The government has failed to carry its burden to show by clear and convincing evidence that Medina has been convicted of an aggravated felony or a controlled substance offense. Similarly, Supreme Court case law issued subsequent to the agency action reviewed here has foreclosed on the government‘s contention that Medina had been convicted of a firearm offense. Because a substantive remand is inappropriate for the reasons stated above, we GRANT Medina‘s petition for review, VACATE the removal order, and REMAND to the agency with the instruction that it grant Medina‘s motion to terminate proceedings.
PETITION GRANTED.