*1 livery MSMLA, pre- fee violated the Countrywide
paid interest collected on the loan was
Washingtons’ an additional viola-
tion of the statute. See id. at 502-03
(affirming jury instruction “to liability find ‘directly
if it believed Defendants or indi- for,
rectly charged, contracted or received
interest connection with’ the [second loans”).
mortgage]
This court reverses and remands court for proceedings
district consistent opinion.
with this ROSAS-CASTANEDA,
Luis Javier
Petitioner, Jr., Attorney
Eric H. HOLDER
General, Respondent.
No. 10-70087. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Dec. 2010.
Filed Jan. 2011. Sept. 12,
Amended 2011. *2 DeStefano, (argued),
John M. III Snell AZ, Wilmer, Phoenix, L.L.P., for the & petitioner. West, General;
Tony Attorney Assistant Director; Wernery, Linda S. Assistant Litiga- (argued), E. Senior James Grimes Counsel, Litiga- Immigration tion Office of tion, Division, Justice, Department of Civil D.C., Washington, respondent. COWEN,* E. A. Before: ROBERT TASHIMA, BARRY G. WALLACE SILVERMAN, Judges. Circuit * Cowen, by designation. sitting E. Senior Unit- The Honorable Robert Circuit, Judge ed States Circuit for the Third
Order; Judge Chief sweeping Dissent to Order ates rule prohibiting IJs from KOZINSKI; Opinion by Judge fulfilling duty their fundamental to develop *3 SILVERMAN. the record immigration cases. This is
contrary to the BIA’s reasonable construc- ORDER statute, of tion the panel construction the not pause does to examine it because di- opinion January The filed on vines the “unambiguous intent” of Con- (9th published at F.3d Cir. 881 gress statutory silence. The 2011) panel is amended as follows: thereby creates an end run around Chev- slip at opinion page At [630 Inc., NRDC, Inc. ron U.S.A. 467 U.S. 889], < 15-16, replace ... we lines (1984), S.Ct. L.Ed.2d 694 the BIA for proceedings remand to con- rendering it pretty much a > dead letter < ... opinion. sistent with this with panel whenever a our of court chooses to and we remand to the BIA for further ignore agency’s proceedings opinion interpretation consistent with this permit government put the forth statute it administers. show that the peti- reliable evidence to
tioner was convicted I > amended, The opinion panel the as the REAL Act authorizes With IJs to ask deny petition has voted to for rehear- aliens to provide corroboration of their ing. Judge deny has Silverman voted testimony. credible banc, petition for rehearing en 1229a(c)(4)(B). panel The interprets Judges Cowen and Tashima have so rec- provision this as abrogating the IJ’s au- ommended. The full court was advised thority request any- corroboration of petition rehearing A en banc. thing else. See Rosas-Castaneda v. Hold- judge requested a vote on whether to re- (9th er, Cir.2011). The banc, hear the matter en the matter panel claims that this is the unambiguous majority failed receive votes though says statute even it judges the nonrecused active in favor of en nothing of the I suppose possible sort. it’s banc R.App. consideration. Fed. P. 35. to infer that Congress meant to cut back petition for rehearing en banc de- is IJs, power on the even though it didn’t nied. it; say expressio unius rule of con- petitions rehearing No future or re- inference, permit struction would this al- hearing en will banc be entertained. though it a very would be strange inter- pretation, my panel But view. holds IT IS SO ORDERED. merely
that this inference
permitted,
KOZINSKI,
Judge,
Chief
with whom
required,
said,
as if
had
“the
joins,
Judge
dissenting
O’SCANNLAIN
request
corroboration of docu-
petition
from the
denying
order
mentary records.” But
there’s world of
rehearing en banc:
difference
statutory
between a clear
com-
mand and an inference
on a rule of
based
panel
opinion
frames
modestly
its
By
construction.
eliminating this distinc-
addressing whether Sandoval-Lua v. Gon
zales,
turning
tion and
a rule of
into
Cir.2007),
thumb
silent as evidence. rationale, an has to
panel’s accept distilling congressional intent proffered by all face value documents silence, fails ac- statutory panel say anything alien. Nor does statute lan- why Congress included opposing application, knowledge about witnesses about guage interpretation corroboration credible is a impairment drastic testimony place. first An IJ is as authority the IJ’s and one we should not powers all the sumed have inherent adopt an explicit without congressional adjudicator, including authority command. request corroboration evidence. But a away cases
misguided line of took IJ’s Ill request corroboration of We can see a sample small of the evil See, testimony. e.g., credible Kataria v. perpetuated by panel’s rule in this (9th Cir.2000) INS, very happens, case. As it the agency here (“It is well circuit established this interpreted statutory provision at issue independent BIA require out precisely came way. other an asylum corroborative evidence from space Mesmerized the white on the credibly support who testifies statutory page, the panel doesn’t even ac application.”). Congress of his tried to knowledge published BIA’s opinion in patch up the hole had carved into the *5 statute, the terpreting which held: “[W]e by overruling statute pro this ridiculous do not that respondent, believe a bound reinstating hibition and full adju the IJ’s the dicatory powers. requirements Act, See REAL H.R.Rep. No. the 109- (2005). satisfy U.S.C.C.A.N. Con can his proof by produc gress got wanted to make sure the ing portions the inconclusive of a record of message, spoke precisely. so it Because conviction, by failing to comply with was no law prohibiting there case an IJ an appropriate request from Immigra asking evidence, documentary tion Judge produce the more conclusive say Congress had no reason to anything portions that record.” Matter Al surely about it. Congress didn’t think manza-Arenas, 24 I. & N. Dec. by reinstating power the IJ’s as to (BIA 2009) added). (emphasis actually it testimony credible was cutting The BIA speaking here is on a matter back the power IJ’s as to documents. significance is of vital to the adminis- Congress reasonably would have assumed immigration system, tration of the as it nothing, that if it said it preserving was authority deals with the of Immigration quo. the status Judges. subject It is also a as to which panel seems to believe that en- BIA, closely supervises IJs, which hancing authority respect, IJ’s one aside, has expertise: considerable Chevron Congress diminished the IJ’s one would want to know what the BIA has all respects, though other even there is no say subject on the and defer to its statement, report, committee floor witness interpretation possible. as much as But testimony any or other indication that having holy grail plain discovered the say Congress anything meant to at all on meaning Congress words did subject. quite It’s a stretch to infer write, panel pays attention to what Congress expressly gave the IJ the say. panel’s BIA has to side- power asking for corroboration credi- stepping opens up gold, maneuver mine testimony ble one silently with hand and parties challenging agency action, espe- away took power ask for corrobora- cially governed by highly complex those tion of other with kinds statutes, EPA, FEC, such as the SEC likely Far other. more is that FDA. I many doubt there are statutes or very specific language surgically used statutory rule that can’t found misguided remove the tumor our books be to have a law panel’s panel’s case had metastasized. The clear using the method of Supreme counting on the up rather than construction, much pretty and it will be I to overrule it us. must dissent. to decide when to solve panel to each Court (or inter- reasonable ignore) agency’s administering. OPINION it
pretation statute challenges of an gates opens It SILVERMAN, Judge: Circuit only on agency’s construction based Rosas-Castaneda, a native Luis Javier everything says, what statute also perma- of Mexico and lawful and citizen through negative implica- might it exclude States, of the United nent resident tions. attempted transportation convicted marijuana weighing of an amount of IV sale pounds of Ari- more than two violation by created potential difficulties Immigration Judge An found law. zona terribly im- ruling may not seem panel’s his removable based on Rosas-Castaneda requested the document portant because viola- conviction for controlled substance record, criminal which here is a domestic tion, the record of conviction but found as may be to obtain government able But rule to whether offense consti- readily unclear as petitioner. adopts applies to all immi- panel that the The IJ re- tuted just convic- gration proceedings, submit the quested that Rosas-Castaneda documents, records, foreign but to all tion in- transcript to corroborate the criminal rec- While criminal as well as domestic. record; however, Rosas-Cas- conclusive *6 with minor ords can be obtained ICE to provide any further evi- taneda declined difficulties, true re- the same is not with Instead, conviction. Rosas- dence his birth, death foreign marriage and spect to argued, citing Sandoval-Lua Castaneda certificates; membership politi- union and Gonzales, Cir.2007), 499 F.3d cards; party cal and records of medical he met his for relief from burden stays that are lo- hospital treatment and of conviction removal because the record cated abroad. his conclusively prove offense did a asylum presents If applicant an aggravated felony. The IJ constituted he was hos- foreign doctor’s certificate that application for cancellation of denied his a what claims was pitalized following he affirmed, appeal, the BIA removal. On beating, unconvinced police IJ is changes the REAL ID Act ruling that records, hospital and for actual asks today hold result Sandoval—Lua. We did) (as alien can refuse Rosas-Castaneda not. and after that it does Both before any explanation, and the IJ without Act, at the time including the REAL ruling him in against not hold it on decided, was the burden Sandoval—Lua matter, asylum practical As petition. was, is, and remains on alien. proof all documents. ICE cannot obtain such REAL ID particular respect, In this Thus, asylum can force the law. There- merely existing Act codified adjudicate to his case based on fore, the REAL ID Act did not affect presented drawing an evidence he without holding in Sandoval-Lua. unexplained from the adverse inference evidence the provide failure to available Background Factual and Procedural necessary to a trier of fact believes to be the United Rosas-Castaneda entered very This fair accurate decision. on permanent a lawful resident as States legal rules surprise: Bad bad law but 15, 2006, 1993. On December August-13, precisely lead to bad results. This charged with one Rosas-Castaneda was kind of we should solve ourselves problem 1229b(a). § attempted transportation Having count sale found the statute of of marijuana weighing divisible, of an amount more conviction the IJ reviewed the pounds than and one count of know- two record of conviction. These documents re- ingly possessing for sale amount of only veal that Rosas-Castaneda con- marijuana weighing more than four victed of one count of “[attempted trans- 22, 2007, signed an pounds. On March he portation marijuana sale, involving plead agreement guilty to to one count: more pounds, felony than two a class 3 “attempted transportation of marijuana for 13-1001, §§ 13-3405, violation A.R.S. sale, more than involving pounds, two 13-3401, 13-610, 13-701, 13-702, and 13- felony, three class violation of A.R.S. 801.” The IJ found the record of convic- 13-1001, 13-3405, 13-3401, 13-601, §§ 13- tion inconclusive and ordered Rosas-Cas- 23, 2007, April 13-801.” On he produce taneda a transcript of his Ari- in Maricopa County Superi- was convicted zona plea criminal court hearing. on Court that count and sentenced to 30 argued Rosas-Castaneda that under months’ incarceration. Sandovalr-Lua, meet Rosas-Castaneda was served with no- proof eligibility establish appear April alleging tice removal, cancellation of only he needed that he was removable because his convic- prove that the record of conviction is in- (1) aggravated felony, tion constituted as to conclusive whether he was convicted 1101(a)(43)(B)(il- as defined of an aggravated felony. rejected The IJ substance) trafficking licit a controlled that argument, distinguishing Sandovalr- (U) (attempt to commit an aggravated Lua inapplicable to applications re- (2) felony), violation of a relating law lief submitted the subsequently under en- substance, to a controlled as defined in 8 Act, acted REAL ID and held that 1227(a)(2)(B)(i). Rosas-Castane- REAL ID Act placed the burden on Ro- da denied removability. comply sas-Castaneda to a request with *7 2009, 12, June admitted On the IJ Ro- corroborate inconclusive conviction docu- sas-Castaneda’s conviction documents into ments. represented Rosas-Castaneda complaint against evidence—the criminal that he would request transcript, and plea him and agreement. his Based on proceedings IJ continued the —first documents, these the IJ found Rosas-Cas- 28, 2009, July until again Sep- then until taneda removable on account of his convic- 3, tember 2009. offense, tion for a controlled substance hearing September a not on Ro- the basis of a conviction (1) argued aggravated felony. sas-Castaneda that The IJ that the rule found statute under which stated in applied Rosas-Castaneda had Sandovalr-Lua to post- divisible, (2) cases, been convicted was and that the REAL ID Act he was not re- government had to prove failed clear quired present any to further conviction convincing evidence Rosas-Cas- documents to his proof meet taneda’s offense constituted an eligibility removal, for cancellation of felony for purposes of removal. (3) he had met his burden showing noticeable conviction docu-
After the him IJ found removable based ments in the record were inconclusive as to on the conviction for controlled sub- whether his offense, aggra- offense constituted an stance Rosas-Castaneda stated his intention vated The IJ apply to for cancellation of asked Rosas-Cas- re- Aggravated requested moval. taneda if he eligible felons are not had and received for cancellation of transcript plea removal. 8 U.S.C. hearing. Rosas- 882 appeal Rosas-Castaneda’s was attempt- he had removal. responded that
Castaneda yet dismissed, but had not transcript, he removed from get ed to has been then it. de- received Rosas-Castaneda the United States.1 a continuance until offer of clined IJ’s The IJ transcript proceeded arrived. Jurisdiction support of Rosas-
to receive 11, 2010, January On Rosas-Castaneda application for cancellation Castaneda’s petition for of the timely review filed judicial econo- “in the interest of removal 18, 2009, order December final BIA’s my.” IJ an oral decision and issued jurisdiction has This Court removal. hearing. order at close petition’s constitutional and le- review Rosas-Castaneda remova- The IJ found gal pursuant claims conviction of an offense ble on his based 1252(a)(2)(D). in the immi- Jurisdiction substance, controlled de- relating under gration proceedings proper 8 application for cancellation of re- nied his 1229a. prove conclu- based on his failure moval that he had not convicted sively been Standard of Review aggravated felony. The IJ held under the unpublished We review decision Act, ID Rosas-Castaneda could REAL BIA required produce transcripts under deference scheme set be Co., proceedings the state criminal as “corrobo- v. & forth Skidmore U.S. Swift distinguished rating evidence.” The IJ (1944), 134, 65 S.Ct. L.Ed. 124 on the that Sando- grounds Sandoval-Lua “entitling interpretation respect to a apply post-REAL val-Lua did not Act. persuade.” to its proportional power also that if Rosas-Castaneda found Holder, F.3d 1012 n. Vasquez removal, eligible cancellation of were (9th Cir.2010) (internal and quo citations application relief then his would have omitted). tations exercise of discre- favorable “merit[ed] “Legal regarding determinations tion.” cancellation of re eligibility alien’s appeal, On the BIA did not review are novo.” Sandoval- moval reviewed de conviction whether Rosas-Castaneda’s Lua, (quoting at 1126 Sinotes- F.3d were, fact, inconclusive; documents Gonzales, Cruz nonetheless, the Board affirmed IJ’s Cir.2006)). production that the an inconclu- decision *8 did carry sive record of conviction Discussion to prove eligi-
Rosas-Castaneda’s burden bility for cancellation removal. Sandoval-Lua Applies I. Post- in distinguished BIA also our decision REAL ID Act Context. applicable applica- Sandoval-Lua as not Prior the enactment for relief filed after the effective date tions 2005, in a removable alien REAL Act Furthermore, of the REAL ID Act. discretionary for relief from re applying BIA, having ineligible for found him can- proving by had burden of a moval removal, cellation of mooted the IJ’s find- (1) that of the evidence she preponderance that, if ing eligible, ap- Rosas-Castaneda’s (2) relief, and that her eligible was plication would merit a favorable exercise application a favorable exercise of granting in cancellation of merited discretion 1252(d); Ashcroft, notwithstanding § 253 jurisdiction 1. We retain Ro- U.S.C. Andreiu 477, (en banc). (9th Cir.2001) having See 8 484 sas-Castaneda’s been removed.
883 1240.8(d). § 8 a proven discretion. C.F.R. For under categorical the modified permanent prove eligi lawful resident analysis that necessarily he ‘con- ” removal, bility for cancellation of she must of any aggravated felony.’ victed Id. at (1) a perma show that she has been lawful 1229b(a)(3)). § (quoting (2) years; nent resident for at least five nowWe consider whether the REAL ID continuously resided in the United States has changed Act regarding law years, regardless for seven of immigration proof alien’s burden of in cancellation of (3) status; any not been convicted of removal in such way actions that Sando- aggravated felony. Toro-Romero v. Ash val-Lua has been statutorily overruled. (9th Cir.2004) (cit 930, croft, 382 F.3d 1229b(a)). § ing 8 of an U.S.C. Conviction Statutory Language A. The of 8 aggravated felony mandatory constitutes a 1229a(c)(4)(A) § U.S.C. Confirms ground denial of relief. Sandoval- That the REAL ID Act Codified Lua, at 1127. Where an alien’s Existing Regulatory Scheme. conviction “indicates that one or more REAL ID Act amended the Immi- grounds mandatory denial of the 2005, gration Nationality Act in insert- application for relief apply, the alien (4), ing paragraph titled “Applications for shall of proving by have burden Removal,” Relief into U.S.C. preponderance of the evidence that such 1229a(c). § Pub.L. 109-13, No. grounds apply.” Id. at (citing do (2005). 101(d)(2), § 1240.8(d)). 119 Stat. 231 § 8 C.F.R. The stat- ute reads: Sandoval-Lua, we decided An alien applying protection for relief or facts of are which similar those in this from removal has the of proof burden Sandoval-Lua, case. In we upheld an IJ’s (i) establish that the alien satisfies the finding eligible decision alien removable applicable eligibility requirements; cancellation of removal because the (ii) with respect any statute form relief under which the alien was convict- granted that is in ed was divisible and the record of convic- exercise discre- tion, tion was inconclusive as to whether the the alien merits favorable offense constituted exercise of discretion. Id. at 1124. Relying on the Supreme 1229a(c)(4)(A). provision This Shepard Court’s decisions in v. United appears no different substance than the States, 544 U.S. 125 S.Ct. 161 requirement regulation stated (2005), Taylor L.Ed.2d 205 United issue regulation, Sandoval-Lua. That States, 495 U.S. 110 S.Ct. 1240.8(d), C.F.R. reads: (1990), L.Ed.2d 607 Sandoval-Lua held respondent shall have that under the categorical ap- modified establishing he or eligible she is proach, relevant inquiry was “whether requested any benefit or privilege and noticeable documents estab- granted that it should be exercise *9 lish necessarily that conviction [the alien’s] of discretion.
was for all of the
constituting
elements
an
both
recently
Under
the
Act
enacted
and
aggravated felony....
If the record of
pre-existing regulation,
the
applying
aliens
establish,
conviction does not so
the
[then
for cancellation of removal have the bur-
cannot
to
generic
conviction]
amount
the
(1)
establishing
den
eligibility
of
their
offense,
[the
and
has
alien]
carried
relief,
(2)
their applications
that
merit
burden.”
v.
the gener-
was convicted of
“punish
Ariz.Rev.Stat.
13-3405
the defendant
Because
solicitation,
range
the full
of conduct
v.
ically
es
crime.” United States
defined
(9th
con
by
Navidad-Marcos,
encompassed
statute does
felony under 8
aggravated
Cir.2004)
stitute
ci-
marks and internal
(quotation
Sandoval-Lua,
1101(a)(43)(B).”
omitted).
Neither document
tation
(quoting
States
finding judge the trial which (quoting Shep- Id.
defendant assented.” 1254).
ard, 544 U.S. S.Ct. proves incon-
Where a record conviction
clusive, prov- an alien his burden of carries ing preponderance of the evidence Dwayne Anthony WOODS, she has been convicted Petitioner-Appellant, The rec- Id. at 1130. charging case doc- ord this includes copy plea Stephen SINCLAIR, Respondent- agreement. ument and a Together only these documents reveal Appellee. of one
Rosas-Castaneda was convicted No. 09-99003. “[a]ttempted transportation of count of sale, marijuana involving than more Appeals, United States Court pounds, felony two a class violation Ninth Circuit. 13-3405, 13-1001, §§ 13-
Ariz.Rev.Stat. Argued and Submitted March 2010. 13-702, 3401, 13-610, 13-701, and 13-801.” Aug. Filed 2011. facts “If noticeable would allow the defendant to be convicted
of an offense other than that defined as offense,” those do not
qualifying then facts
satisfy categorical approach, the modified if requires that a court “determine
which