Rafael Lara-Chacon (“Petitioner” or “Lara Chacon”), a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”), dismissing his appeal of the immigration judge’s (“IJ’s”) order finding Lara-Chacon removable for having been convicted of an aggravated felony and for having been convicted of violating a law related to a controlled substance. We grant the petition, vacate the order and remand.
BACKGROUND
Petitioner was admitted to the United States in 1970 as an immigrant. In 1999, he was convicted, based on a guilty plea, of five counts of conspiracy to commit money laundering in violation of Ariz.Rev.Stat. §§ 13-1003, 13-2317(A)(1) and (C), and was sentenced to three and one-half years’ imprisonment. As a result of these convictions, the Immigration and Naturalization Service (“INS”) charged Petitioner with being subject to removal for being an alien convicted of an aggravated felony under the Immigration and Nationality Act (“INA”), § 237(a)(2)(A)(iii). 1
The INS initially charged Lara Chacon with removability based on money laundering in excess of $10,000, which is defined as an aggravated felony in INA § 101(a)(43)(D). 2 In two subsequent amendments to the charging document, the INS added charges of removability based on illicit trafficking in a controlled substance, INA § 101(a)(43)(B), 3 an aggravated felony, and controlled substance violation, INA § 237(A)(2)(B)©. 4
After several continuances of his merits hearing, Petitioner admitted that he was a *1150 citizen of Mexico. At a later hearing, Petitioner admitted to his convictions, but denied that his convictions qualified as removable offenses under the INA. The IJ construed the denial as a motion to terminate the proceedings, and gave the parties the opportunity to submit briefs and continued the hearing.
The INS attached a copy of Petitioner’s Presentence Report (“PSR”) to its brief. After receiving the briefs and without holding any hearing on the issue, the IJ issued an order finding Petitioner removable for having been convicted of the aggravated felony of trafficking in controlled substances and for violating a law related to a controlled substance. Based solely on information in the PSR, he concluded that Petitioner’s money laundering convictions were predicated upon trafficking in marijuana, a controlled substance. The IJ cited the PSR as follows:
[T]he Presentence Report states that the respondent was identified as a “drug broker, who put drug deals together.” Consequently, other criminal cohorts would “call Lara [the petitioner] when they needed marijuana.” On the basis of the foregoing, it is evident to this Court that the respondent’s state felony conviction for racketeering/money laundering involved marijuana.
Again the Presentence Report indicates that “Rafael Lara was identified as a drug broker, who put drug deals together ... Defendants Carlos Taylor and David Garcia called Lara when they needed marijuana.
The IJ found that marijuana is a controlled substance under the Controlled Substance Act, and therefore that the conviction was for trafficking in an illicit controlled substance. Additionally, the IJ found Lara-Chacon removable because the conviction constituted a “violation[] of a law of a State relating to a controlled substance with the meaning of § 237(a)(2)(B)(i) of the Act.” (emphasis in original). The IJ found that the exception from removability in the INA for aliens convicted only of a “single offense involving possession for one’s own use of thirty grams or less of marijuana” under § 287(a)(2)(B)® did not apply because “respondent was a drug dealer, who dealt in large quantities of marijuana.” The IJ based this conclusion on an exhibit to the PSR “indicating that respondent’s cohorts were found transporting 15 pounds of marijuana.” (emphasis in the original).
The IJ dismissed the charge for the aggravated felony of money laundering because there was no showing of the amount of funds that was laundered.
Petitioner appealed to the BIA, which dismissed his appeal. The BIA rejected Petitioner’s challenge to the use of the PSR, finding it admissible under 8 C.F.R. § 3.41(a)(6) and § 3.41(d). 5 The BIA not *1151 ed the parts of the PSR that referred to Lara-Chacon as a “ ‘drug dealer, who put drug deals together’ ” and to the fact that his “criminal cohorts would’ call Lara [the petitioner] when they needed marijuana.’ ” Additionally, the BIA noted that the PSR indicated that the conviction involved the transportation of 15 pounds of marijuana. The BIA found that because marijuana is a controlled substance, the conviction constituted trafficking in a controlled substance, an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). Additionally, the BIA agreed with the IJ’s reasoning for the second charge of remov-ability under § 1227(a)(2)(B)(i) (conviction relating to a controlled substance). The BIA also agreed with the IJ’s dismissal of the money laundering charge.
STANDARD OF REVIEW
We review
de novo
the question of whether a conviction under state law is a deportable offense.
See Coronado-Durazo v. INS,
ANALYSIS
I. Jurisdiction
Respondent challenges our jurisdiction to hear this case. Pursuant to the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), if the BIA correctly concluded that Lara Chacon was convicted of an aggravated felony, the court lacks jurisdiction to review the removal decision.
See
8 U.S.C. § 1252(a)(2)(C). However, because we retain jurisdiction to determine our own jurisdiction by assessing whether the conviction was indeed for an aggravated felony, “the jurisdictional question and the merits collapse into one.”
Ye v. INS,
II. Removability
Because the initial basis charged for removing Lara-Chacon (money laundering) was insufficient, 6 the INS attempted to stretch two provisions to Lara-Chacon’s conviction in order to establish it as a removable offense by adding charges of removability based on the aggravated felonies of drug trafficking and a controlled substance violation. The record, however, does not establish that Lara-Chacon was convicted of these offenses.
To determine whether an offense qualifies as an aggravated felony, we first make a categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed by the statute of conviction is broader than, and so does not categorically fall within, this generic definition.
See Chang v. INS,
[I]n the case of a jury trial, the charging document and jury instructions from the prior offense may demonstrate that the “jury was actually required to find all the elements” of the generic crime. Similarly, if a defendant enters a guilty ■ plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime. Charging papers alone are never sufficient. However, charging papers may be considered in combination with a signed plea agreement.
A. Drug Trafficking
The BIA affirmed the IJ’s finding that Lara-Chacon’s conviction for conspiracy to commit money laundering constituted the aggravated felony of trafficking in a controlled substance under 8 U.S.C. § 1101(a)(43)(B). This provision defines an aggravated felony as the “illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). In turn, 18 U.S.C. § 924(c)(2) defines a “drug trafficking crime” as “any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.).” Lara-Chacon’s conviction under the Arizona racketeering statute is not a “drug trafficking crime” because his crime is not “punishable under the Controlled Substances Act.”
In assessing whether a crime is a drug trafficking crime, we consider categorically whether the “full range of conduct” encompassed by the statute of conviction is punishable by the Controlled Substances Act.
United States v. Rivera-Sanchez,
According to this approach, we look to other “judicially noticeable facts” in the record to determine whether the conduct for which Lara-Chacon was convicted is actually an aggravated felony.
Rivera-Sanchez,
As we explained in
Corona-Sanchez,
“the idea of the modified categorical approach is to determine if the record unequivocally establishes that the defendant was convicted of the generieally defined crime, even if the statute defining the crime is overly inclusive.”
In
Taylor,
the Supreme Court warned of the practical difficulties and potential unfairness of relying on the defendant’s conduct to prove the nature of his conviction. The Court indicated that such an approach was permitted only in a “narrow range of cases in which the jury actually found the elements of the crime.”
B. Controlled Substance Violation
The BIA also affirmed the IJ’s finding that Lara-Chacon was also removable. for being convicted of violating a law “relating to a controlled substance” under 8 U.S.C. § 1227(a)(2)(B)®. Lara-Chacon was convicted of violating a statute that punishes activities relating to “racketeering proceeds.” Ariz.Rev.Stat. § 13-2317. This statute does not mention controlled substances, but does refer to the definition of racketeering proceeds contained in Ariz. Rev.Stat. § 13-2301(D)(4), which, as discussed above, refers to proceeds derived from many sources, including “prohibited drugs.” Id.
Although the “relating to” language in § 1227(a)(2)(B)® is construed broadly,
Luu-Le v. INS,
The BIA has also recognized limits on the “relating to” language when the statute of conviction does not explicitly concern controlled substances.
See Matter of Carrillo,
16 I. & N. Dec. 625, 626,
In
Castaneda De Esper v. INS,
The facts of this case exceed the limits of the “relating to” language. Arizona’s money laundering offense is a distinct crime from the underlying crime and does not require proof of the underlying crime.
See State v. Harper,
Respondent’s rebanee on
Johnson v. INS,
The government has not cited a case in which we have looked at the underlying conduct, rather than the terms of the conviction itself to determine whether the conviction constituted a controlled substance violation. Even were we to do so, it would not be based on something as unreliable as a PSR. Lara Chacon was not convicted of violating a law related to a controlled substance.
The fact that Lara-Chacon’s conviction was not for violation of a statute related to controlled substances is also supported by the difference between the purpose of the INA’s provision for removing aliens convicted of crimes relating to controlled substances and the nature of the statute of conviction. The broad language of 8 U.S.C. § 1227(a)(2)(B)© indicates that it is directed at deporting “aliens who abuse the hospitality of the United States by committing drug related crimes.”
Coronado-Durazo,
Arizona’s racketeering statute was adapted from the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, and Arizona courts “look to federal decisional law for guidance in construing and applying the Arizona statute.”
Baines v. Superior Court,
Because racketeering statutes are not intended to be a vehicle to redress aliens’ controlled substance violations, the Arizona statute does not qualify as one “relating to” controlled substances. Accordingly, Arizona’s racketeering statute is not a law “relating to” a controlled substance. 10
CONCLUSION
Based on the foregoing, we conclude that Petitioner’s conviction did not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), or a violation of a statute relating to controlled substances under 8 U.S.C. § 1227(a)(2)(B)®. The petition for review is therefore GRANTED. The decision of the BIA is REVERSED and RE *1157 MANDED for proceedings consistent with this opinion.
Notes
. This section provides:
Any alien who is convicted of an aggravated felony at any time after admission is deportable.
8 U.S.C. § 1227(a)(iii).
. This section includes "an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000.” 8 U.S.C. § 1101(a)(43)(D).
. This section includes as an aggravated felony "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B).
. This section provides:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title *1150 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).
. These sections provide that the following documents are admissible as evidence of a criminal conviction in any proceeding before an IJ:
(1) A record of judgment and conviction;
(2) A record of plea, verdict and sentence;
(3) A docket entry from court records that indicates the existence of a conviction;
(4) Minutes of a court proceeding or a transcript of a hearing that indicates the existence of a conviction;
(5) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a state official associated with the state’s repository of criminal justice records, that indicates the following: The charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence;
(6) Any document or record prepared by, or under the direction of, the court in *1151 which the conviction was entered that indicates the existence of a conviction.
(d) Any other evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.
8 C.F.R. § 3.41(a)(6) and § 3.41(d).
. His state money laundering conviction did not qualify as an aggravated felony because the record did not show that it met the $10,000 statutory minimum. See 8 U.S.C. § 1101(a)(43)(D).
. Respondent's reliance on
Abreu-Reyes v. INS, 292
F.3d 1029 (9th Cir.2002), is misplaced.
Abreu-Reyes
did not employ the modified categorical approach, and therefore does not diminish
Corona-Sanchez’s
holding. More importantly, in
Hernandez-Martinez v. Ashcroft,
. In light of our holding that the BIA's reliance on the PSR was error, we do not reach Petitioner's contention that the PSR was inadmissible hearsay.
. Petitioner also argues that because 8 U.S.C. § 1101(a)(43)(D) specifically indicates that
money
laundering is only to be considered an aggravated felony when the amount in question exceeds $10,000, his Arizona conviction for money laundering cannot be construed as a different crime to get around this requirement. He argues that to do so would render the $10,000 requirement superfluous. He cites the general rule that statutes are to be read in a manner that avoids rendering statutory provisions "inconsistent, meaningless, or superfluous.”
Boise Cascade Corp. v. ERA,
. We do not reach Petitioner's additional due process challenge.
