Perez-Palafox v. Holder

• Decision Date: 11 March 2014
• Docket Number: No. 11–71201.,11–71201.
• Citation: 744 F.3d 1138
• Parties: Javier PEREZ–PALAFOX, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

744 F.3d 1138

Javier PEREZ–PALAFOX, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–71201.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 8, 2013.

Filed March 11, 2014.

Curtis F. Pierce, Los Angeles, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, William C. Minick (argued), Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: WILLIAM A. FLETCHER and JOHNNIE B. RAWLINSON, Circuit Judges, and ALVIN K. HELLERSTEIN, Senior District Judge.^*

OPINION

RAWLINSON, Circuit Judge:

Petitioner Javier Perez–Palafox (Perez–Palafox), a citizen of Mexico and a lawful permanent resident, petitions for review of the decision of the Board of Immigration Appeals (BIA) vacating the withholding of removal relief granted to Perez–Palafox by an Immigration Judge (IJ). The BIA concluded that Perez–Palafox was not eligible for withholding of removal because his conviction for transportation of methamphetaminein violation of California Health & Safety Code § 11379(a) constituted a particularly serious crime.

As we later explain, we have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA's determination that Perez–Palafox committed a particularly serious crime. See Pechenkov v. Holder, 705 F.3d 444 (9th Cir.2012). Because the BIA did not engage in improper factfinding, we deny the petition for review.

I. BACKGROUND

Perez–Palafox is a native and citizen of Mexico who was admitted to the United States as an immigrant at the age of six. Sixteen years later, on April 16, 1990, Perez–Palafox was convicted in a California state court of the felony offense of Possession for Sale of a Controlled Substance in violation of California Health & Safety Code (Cal. H. & S. Code) § 11351,¹ and sentenced to three years' probation, with the first 180 days to be spent in county jail. Five days after his conviction, Perez–Palafox obtained the status of lawful permanent resident.

On April 5, 2001, the Immigration and Naturalization Service (INS) issued a Notice to Appear (NTA) alleging that Perez–Palafox was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. On September 30, 2002, an IJ issued an in absentia order of removal against Perez–Palafox after he failed to appear at his scheduled removal proceeding.

On November 26, 2002, an IJ denied Perez–Palafox's motion to reopen seeking recision of the in absentia order. On February 17, 2004, the BIA granted Perez–Palafox's appeal, finding that Perez–Palafox established exceptional circumstances for his failure to appear, and remanded the case to the Immigration Court for further proceedings.

On April 19, 2005, an IJ found Perez–Palafox removable as charged in the NTA. Perez–Palafox applied for cancellation of removal, asylum, and withholding of removal, based on mental and physical disabilities stemming from a brain injury incurred in 2000. The government did not oppose Perez–Palafox's application for withholding of removal, and withholding of removal was granted.

One year after he was granted withholding of removal relief, Perez–Palafox was convicted by guilty plea in a California state court of the felony offense of Sale/Transportation of a Controlled Substance in violation of Cal. H. & S. Code § 11379(a).² He was sentenced to three years' imprisonment.

The government subsequently filed a motion to reopen for the purpose of terminating Perez–Palafox's withholding of removal relief. An IJ granted the motion to reopen. During the reopened proceedings, the government relied on conviction documents and the police report for Perez–Palafox's 2006 conviction to establish that Perez–Palafox had been convicted of a particularly serious crime.

The IJ acknowledged that “a drug trafficking offense is presumptively a particularly serious crime.” However, the IJ found that the government failed to establish by a preponderance of the evidence that Perez–Palafox's conviction in 2006 for transportation of a controlled substance was for a “drug trafficking offense.” The IJ concluded that the police report should not be considered because there was no plea colloquy reflecting that the report constituted a factual basis for Perez–Palafox's guilty plea. The IJ found that the conviction documents did not establish that Perez–Palafox was convicted of a “drug trafficking” offense. Consequently, the IJ denied the government's motion to terminate the prior grant of withholding of removal relief.

Following the government's appeal, the BIA remanded the case to the Immigration Court for further proceedings. The BIA determined that the IJ correctly concluded that Perez–Palafox's conviction was not “presumptively a particularly serious crime.” The BIA noted that due to this conclusion, the IJ was required to apply the case-by-case analysis articulated in Matter of N–A–M–, 24 I & N Dec. 336 (BIA 2007), to assess whether Perez–Palafox's conviction constituted a particularly serious crime. The BIA interpreted its holding in Matter of N–A–M– as permitting consideration of all reliable information once the elements of the offense were found to bring the crime within the realm of a particularly serious crime, including “information outside the confines of the record of conviction.” The BIA found that, in conducting her case-by-case analysis, the IJ failed to give appropriate consideration to the police report, which contained “potentially dispositive evidence” that was not part of the IJ's factfinding. Also, the BIA noted that the IJ acknowledged information that Perez–Palafox “was in possession of three drugs as well as other things when he was stopped,” but made no findings about these additional items or their impact on her assessment of the evidence.

The IJ, in declining to consider the facts set out in the police report, relied on a case that no longer correctly states the law. The IJ followed Morales v. Gonzales, 478 F.3d 972, 982 (9th Cir.2007), as amended, which held that IJs should limit their inquiry “to the record of conviction and sentencing information” in determining whether a crime was “particularly serious.” Id. at 982. However, Anaya–Ortiz v. Holder, 594 F.3d 673 (9th Cir.2010), decided three years later, enlarged the scope of inquiry that the BIA could require IJs to pursue. In that later case, we deferred to the BIA in instructing IJs that “all reliable information may be considered ... including ... information outside the confines of a record of conviction.” Id. at 678 (quoting Matter of N–A–M–, 24 I & N Dec. at 342). Thus, the BIA concluded that the IJ should consider the facts in the police report, and remanded the case to the IJ to enable the IJ to conduct a case-by-case analysis of all relevant information. Petitioner does not challenge this conclusion, and we express no opinion here as to whether a police report may be considered “reliable information.” Cf. Alphonsus v. Holder, 705 F.3d 1031, 1047 n. 15 (9th Cir.2013) (questioning whether certain aspects of a police report might not be reliable evidence).

During the remanded proceedings, the police report was admitted into evidence and considered. The report provided the observations and opinions of arresting policeofficer Carlos Silva (Officer Silva). Officer Silva reported that he found the following items in a bag on Perez–Palafox's person: methamphetamine, marijuana, cocaine, a digital scale, and nine empty clear plastic bags.

Perez–Palafox admitted that when he was arrested he was in possession of a bag of methamphetamine, a bag of cocaine, and a bag of marijuana. Perez–Palafox also acknowledged that he was in possession of a digital scale and empty plastic bags, but stated that those items belonged to his brother. Perez–Palafox conceded that he did not pay for the drugs, and that he had sold drugs in the past, but maintained that he did not possess drugs for sale at the time of his arrest.

After considering this evidence, the IJ again denied the government's motion to terminate the prior grant of withholding of removal. The IJ held that Perez–Palafox's conviction was not “presumptively” a particularly serious crime pursuant to Matter of Y–L–, 23 I. & N. Dec. 270 (Op. Att'y Gen.2002), because (1) a conviction under Cal. H. & S. Code § 11379(a) is not categorically a “drug trafficking aggravated felony,” as the statute prohibits the transportation of a controlled substance for personal use as well as for sale and (2) the conviction documents in the record failed to establish that Perez–Palafox's conviction constituted a “drug trafficking aggravated felony.”

Because Perez–Palafox's conviction was not presumptively a particularly serious crime, the IJ conducted the case-by-case analysis outlined in Matter of N–A–M–, to “examine the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction.”

After considering the police report and Perez–Palafox's testimony, the IJ found that the government again failed to establish by a preponderance of the evidence that Perez–Palafox's conviction constituted a particularly serious crime. The IJ interpreted Perez–Palafox's statement that he had purchased the drugs immediately prior to his arrest as proof that the drugs were packaged in the plastic bags by the dealer who sold the drugs to Perez–Palafox, and did not support a finding that Perez–Palafox intended to sell the drugs.

The IJ also discounted the drug quantity as indicative of possession for sale, as well as the fact that Perez–Palafox “had in his possession a digital scale and empty plastic baggies, implements typically associated with drug trafficking.” The IJ relied on Perez–Palafox's explanation that these items belonged to his brother. The IJ did not discuss the import of Perez–Palafox's testimony that he did not pay for the drugs. The IJ based her...