Cheuk Fung S-Yong v. Holder

• Decision Date: 25 August 2009
• Docket Number: No. 07-70619.,07-70619.
• Citation: 600 F.3d 1028
• Parties: CHEUK FUNG S-YONG, Plaintiff-Appellant, v. Eric HOLDER Jr., Attorney General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

600 F.3d 1028

CHEUK FUNG S-YONG, Plaintiff-Appellant, v. Eric HOLDER Jr., Attorney General, Defendant-Appellee.

No. 07-70619.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 21, 2008.

Filed August 25, 2009.

Amended March 9, 2010.

Kathryn M. Davis, Pasadena, CA, for the petitioner.

Gregory G. Katsas, Mary Jane Candaux, and Aimee J. Frederickson, U.S. Department of Justice, Washington, D.C., for the Attorney General.

Before RICHARD D. CUDAHY,^* HARRY PREGERSON and MICHAEL DALY HAWKINS, Circuit Judges.

ORDER

The Opinion filed on August 25, 2009, and appearing at 578 F.3d 1169 (9th Cir. 2009), is amended as follows:

At page 1174, at the end of the paragraph that reads "We have previously found that California law regulates the possession and sale of many substances. . ., and we must look further to demonstrate whether Yong's conviction renders him removable," footnote "5" is inserted. The text of the footnote reads:

5 Although it is not entirely clear from our current precedents when the modified categorical approach may be employed if the particular statute is broader than the generic offense, see Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159-60 (9th Cir.2008) (en banc), we have at least implicitly treated similar provisions of the California Health & Safety Code as sufficiently "divisible" into separate crimes so as to apply the modified categorical approach, see Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1128-29 (9th Cir.2007), and accordingly we continue to do so here.

At page 1176, in the first paragraph after the block quotation, the following is deleted: ",much less determined was the type of document that could be considered under Taylor" At page 1176, the paragraph that begins "This is woefully insufficient," is deleted. In its place, the following is substituted:

This is woefully insufficient. Because there is no document in the record that proves Yong was convicted under Section 11378, we therefore GRANT Yong's petition and REVERSE the order of removal.

OPINION

CUDAHY, Circuit Judge:

The question presented is whether the Department of Homeland Security has met its burden of proving that the petitioner is removable from the United States as an alien convicted of a law relating to a controlled substance. A second question is whether the petitioner has met his burden of proving he is eligible for relief from removal. Because there is no record documentation supporting the order of removal, or the ruling that the petitioner was barred from relief, we find for the petitioner in answer to both questions. Yet only the first answer is necessary to grant his petition for review and reverse the removal order. (Likewise, we need not address the petitioner's due process claims.)

I

Cheuk Fung S-Yong, a native and citizen of Hong Kong (now the People's Republic of China) has been a lawful permanent resident of the United States since 1978, when he came to this country with his parents as a nine-year-old. In July 2006, the Department of Homeland Security issued Yong a notice to appear that charged him as removable from the United States because he was an alien who had been convicted of both (1) a "controlled substance offense" under 8 U.S.C. § 1227(a)(2)(B)(i),¹ and (2) an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii).² The notice specified only one prior offense, a September 21, 2005 conviction for the "Sale or Transportation of Controlled Substance, in violation of Section 11379(a) of the California Health and Safety Code."³ The government argued that the Section 11379 conviction constituted both a controlled substance offense and an aggravated felony under the Immigration and Nationality Act (INA). The notice did not specify what kind of controlled substance gave rise to the Section 11379 conviction or whether the offense involved a sale.

Yong appeared at an initial hearing pro se but indicated that he wished to hire a lawyer. The immigration judge continued the hearing four times to allow Yong to find an attorney, but on October 25, 2006, three months after the initial hearing, Yong elected to proceed without counsel. The immigration judge then indicated that he would take a "pleading" from Yong and determine what issues would be raised in the case.

After preliminary questions confirming Yong's name and citizenship status, the immigration judge questioned Yong about the charges in the government's notice to appear to determine whether Yong was removable based on those charges. In particular, the immigration judge asked whether Yong had been convicted of the Section 11379 charge mentioned in the notice and confined for two years. Yong confirmed that he had been. The immigration judge then asked to look at the government's "conviction document." Before reviewing that document, however, the immigration judge asked Yong whether he had any fear of being returned to China or any reason to believe he would be subjected to torture there if he were removed from the United States. Yong answered no to both questions.

The immigration judge then indicated on the record that the government attorney "has handed me a conviction record." Without further identifying the document or confirming that it related to the Section 11379 conviction charged in the notice to appear, the immigration judge described the government's document as follows:

I'm just verifying that we have a good document here. It shows you had two convictions, a Count 3 and Count 4. Count 3 would appear to be—let me read it for a second here. It's basically a conspiracy charge, that you and others conspired to commit the crime in sic sale or transportation of a controlled substance. And then it sets forth the overt acts that led to that. Count 4 is written in that you conspired to commit the—some other crimes with others. The question we have to look at is whether this Count 3 falls into that category. Basically, what this charges you with is sale or transportation. But the actual overt acts that you were charged with show that you must negotiated sic it and actually handed over 100 MDMA tablets, and—to the parties . . . That you actually handed a hundred tablets of the MDMA . . . to that person in the other car.

Yong conceded the accuracy of this description, as recited by the immigration judge, but argued that "that was not a sale. I wasn't selling it." The immigration judge agreed there was no evidence in the document of a sale, and on that basis found that the conviction did not support the government's charge that Yong was removable for having committed an aggravated felony. The immigration judge sustained the government's other basis for removal, however, that Yong had been convicted of a controlled substance offense under Section 1227(a)(2)(B)(i) of the INA. The government then accepted the court's ruling that the Section 11379 conviction was not an aggravated felony and did not raise any other convictions that might qualify. The government's attorney did not move the unidentified document into the record, nor was any more said about it at the hearing.

The immigration judge then asked whether Yong had any other convictions. Yong said that he did. The immigration judge asked him to elaborate, and Yong explained that he had "another ecstasy conviction . . . for possession for sales. . . . But they gave me a—less than a year." The immigration judge then explained why he was asking Yong about other convictions: "If you actually have a possession for sale charge, even if they gave you straight probation on it, that will be an aggravated felony. It would bar you from certain types of relief." The immigration judge continued,

You may not be deportable for it right now because they haven't charged it, but it would bar you from cancellation of removal for lawful permanent residents, and it would bar you from asylum. And it might even bar you from a type of Torture Convention protection. But you haven't indicated any threat in those areas. Do you understand?

Yong said he did. The immigration judge then asked the government's attorney whether he had a "rap sheet" on Yong, and when the attorney confirmed that he did, the immigration judge enlisted Yong's help finding the possession for sales conviction on the rap sheet. When the government's attorney found the conviction, he said, "This is plainly different from the Orange County conviction, which was really the subject of our charge." The attorney went on to describe the conviction included in the rap sheet.

Apparently, on July 28th of 2000, the defendant pled guilty to Count 1 of the charges against him at that time, which was a felony charge of possession of a controlled substance for sale under Section 11378 of the California Health and Safety Code. And he was convicted of that.

After confirming with Yong that this was the additional conviction that Yong had mentioned, the immigration judge concluded, "That is an aggravated felony. . . . Trafficking offense. So even though I haven't sustained the charge of deportability based on the 2005 conviction being an aggravated felony, that 2000 conviction would bar you from those forms of relief I told you about." The government's attorney did not move the rap sheet into the record, nor was any more said about it at the hearing.

The immigration judge concluded the hearing by explaining that "based on what we've discussed, I will find that you are subject to removal today on the controlled substance ground. And based upon the discussions we've had, your July 28th, 2000 conviction for possession for sale, coupled with what you've told me, you don't qualify for any relief."

The immigration judge's written order, entered the same day, stated that "upon the basis of respondent's admissions, I have determined that the respondent is subject to removal on the charge(s) in the Notice to Appear." The order made no mention at all of the Section 11378 conviction, however, which Yong had helped identify in the rap...