575 F.3d 992 (9th Cir. 2009), 07-74246, Mielewczyk v. Holder
| Citation | 575 F.3d 992 |
| Opinion Judge | WARDLAW, Circuit Judge |
| Party Name | Thomas MIELEWCZYK, aka Tomasz Mielewczyk, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Attorney | Sarah K. Jezairian, Snell & Wilmer LLP, Tucson, AZ, for petitioner. Stuart S. Nickum, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for respondent. |
| Judge Panel | Before: HARRY PREGERSON, SUSAN P. GRABER, and KIM McLANE WARDLAW, Circuit Judges. |
| Case Date | August 05, 2009 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit |
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Argued and Submitted Feb. 2, 2009.
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On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A026-825-982.
Thomas Mielewczyk petitions for review of the Board of Immigration Appeals' (" BIA" ) dismissal of his appeal from the immigration judge's (" IJ" ) order of removal. The BIA and the IJ found Mielewczyk removable due to his prior state conviction under California Health and Safety Code section 11352(a) for offering to transport heroin. We must decide whether Mielewczyk's section 11352(a) conviction is a " violation of ... any law or regulation of a State ... relating to a controlled substance (as defined in section 802 of Title 21)," rendering him removable under 8 U.S.C. § 1227(a)(2)(B)(i). Because the statute of conviction by its own terms is a state law " relating to a controlled substance," and Mielewczyk's conviction involved heroin, a controlled substance as defined in 21 U.S.C. § 802(6), we hold that the BIA correctly found Mielewczyk removable and deny his petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mielewczyk is a native and citizen of Poland who was admitted to the United States as a refugee on June 13, 1984, at the age of thirteen. On October 4, 2005, he received a waiver of criminal grounds for inadmissibility and readjusted his status to lawful permanent residency.
On July 19, 2006, Mielewczyk was charged by information with two felony counts under California law. Count one alleged " possession for sale of a controlled substance, in violation of Health and Safety Code section 11351, a felony." Count two alleged " sale/transportation/offer to sell controlled substance, in violation of Health and Safety Code section 11352(a), a felony." Both counts alleged that the crimes involved " a controlled substance, to wit, Heroin."
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Mielewczyk signed a plea agreement that declared he was accused of " Possession of Heroin for Sale" and " Transportation of Heroin." He pleaded guilty to count two, charging a violation of California Health and Safety Code section 11352(a), for the offense of " Transportation of Heroin for Personal Use." Mielewczyk was sentenced to one hundred days in county jail and thirty-six months of probation. Later, at a hearing to correct its prior order, the California Superior Court issued a nunc pro tunc order, finding that the factual basis for Mielewczyk's plea was " ‘ offering’ to transport a controlled substance for the codefendant within the meaning of 11352 of the Health and Safety Code as a felony."
The Department of Homeland Security served Mielewczyk with a Notice to Appear before an IJ for a removal proceeding. The IJ found Mielewczyk removable as charged under 8 U.S.C. § 1227(a)(2)(B)(i), because his section 11352(a) conviction for offering to transport heroin was a violation of a state law relating to a controlled substance. The IJ denied Mielewczyk's application for asylum, withholding of removal, and relief under the Convention Against Torture, as well as his request for voluntary departure.
The BIA also concluded that Mielewczyk was convicted of a removable offense, affirmed the IJ's decision, and dismissed Mielewczyk's appeal. Mielewczyk's timely petition for review raises the sole issue of whether a conviction under California Health and Safety Code section 11352(a) for offering to transport a controlled substance constitutes a removable offense pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review questions of law when a final order of removal is predicated on a criminal offense. See de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir.2007). " Whether a particular conviction is a [removable] offense is a question of law we review de novo." Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir.2000). Therefore, we review de novo the BIA's legal conclusion that a state conviction renders an alien removable under 8 U.S.C. § 1227(a)(2)(B)(i). See id. Our review is limited to the grounds relied upon by the BIA. Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004) (per curiam).
III. DISCUSSION
A. Categorical Approach
To determine whether a conviction constitutes a predicate offense for removal purposes, " we use the analytical model constructed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)." United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n. 4 (2002), as recognized in United States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th Cir.2007). We first apply the categorical approach, examining only the statutory definition of the crime to determine whether the state statute of conviction renders an alien removable under the statute of removal. Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004).
Under 8 U.S.C. § 1227(a)(2)(B)(i), an alien is removable if that alien is " 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 21)." The operative statutory phrase, " relating to a controlled substance," modifies " law or regulation." See
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United States v. Meza-Corrales, 183 F.3d 1116, 1127 (9th Cir.1999) . The ordinary meaning of the term " relate" is " to show or establish a logical or causal connection between." Webster's New International Dictionary 1916 (3d ed.2002). Thus, we look to the language of the statute of conviction to determine whether it establishes a logical or causal connection to a controlled substance as defined in 21 U.S.C. § 802, section 102 of the Controlled Substances Act (" CSA" ).
California Health and Safety Code section 11352(a) provides that
every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport [certain substances specified within the California Uniform Controlled Substances Act] shall be punished by imprisonment in the state prison for three, four, or five years.
The plain language of the statute establishes a logical connection between the law and certain controlled substances because the offense must involve one of the listed controlled substances. Even offenses that do not require personal contact with the drug have the requisite connection because " we have construed the ‘ relating to’ language broadly," to incorporate laws specifically aimed at controlled substance activity, even if they do not require the use, possession, transportation, or sale of controlled substances. Luu-Le, 224 F.3d at 915.
Section 11352(a) does not, however, categorically establish a logical connection to a controlled substance as defined in section 102 of the CSA. Section 102 of the CSA defines " controlled substances" as those substances listed in the federal schedules of the CSA. 21 U.S.C. § 802(6). In contrast, California Health and Safety Code section 11352(a) punishes activities involving controlled substances specified in the schedules of the California Uniform Controlled Substances Act. See Cal. Health & Safety Code § 11352(a). The California Uniform Controlled Substances Act defines " controlled substance" to include " numerous substances that are not similarly regulated by the CSA." Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir.2007). Because the statutory definition of the crime in section 11352(a) embraces activity related to drugs both listed in the CSA and not listed in the CSA, an alien convicted under this statute is not categorically removable under 8 U.S.C. § 1227(a)(2)(B)(i).
B. Modified Categorical Approach
We therefore turn to the modified categorical approach to determine Mielewczyk's removability under 8 U.S.C. § 1227(a)(2)(B)(i). See Rivera-Sanchez, 247 F.3d at 908. Under this approach, we determine whether a conviction constitutes a predicate offense for removal...
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