Alvarado v. Holder

• Decision Date: 23 July 2014
• Docket Number: No. 10–71236.,10–71236.
• Citation: 759 F.3d 1121
• Parties: Luis Felipe Juarez ALVARADO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

759 F.3d 1121

Luis Felipe Juarez ALVARADO, Petitioner,

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

No. 10–71236.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 2014.

Filed July 23, 2014.

Miguel A. Estrada and Scott P. Martin (argued), Gibson, Dunn & Crutcher LLP, Washington, D.C., for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Officer of Immigration Litigation, Kerry A. Monaco, Trial Attorney, and Jamie M. Dowd (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A017–929–244.

Before: RAYMOND C. FISHER, RONALD M. GOULD and MORGAN B. CHRISTEN, Circuit Judges.

OPINION

FISHER, Circuit Judge:

We consider whether the Department of Homeland Security has met its burden of proving that the petitioner, Luis Felipe Juarez Alvarado, is removable from the United States as an alien convicted of a violation of state law relating to a controlled substance. See8 U.S.C. § 1227(a)(2)(B)(i). Juarez Alvarado pled guilty to attempted possession of a dangerous drug, in violation of Arizona Revised Statute § 13–3407(A)(1). He argues that this conviction does not establish his removability for two independent reasons: first, because Arizona's attempt statute is categorically broader than the federal definition; and second, because the government has not met its burden of establishing under the modified categorical approach that his conviction involved a substance listed in the Controlled Substances Act. We lack jurisdiction to reach the first argument and are not persuaded by the second. Accordingly, we dismiss in part and deny in part his petition for review.¹

BACKGROUND

Born in Mexico in 1968, Juarez Alvarado was admitted into the United States as a legal permanent resident before his first birthday. He was placed into removal proceedings after his 2006 conviction for possession of drug paraphernalia, but an IJ granted his application for cancellation of removal in December 2007.

In April 2009, an Arizona grand jury indicted Juarez Alvarado on three counts of drug-related offenses. Count One, the only count pertinent to this petition, alleged that on April 19, 2009, he had “knowingly possess[ed] a dangerous drug, to-wit: methamphetamine, a class four felony,” in violation of Arizona Revised Statute § 13–3407(A)(1).

Three months later, Juarez Alvarado entered a written plea agreement, in which he agreed to plead guilty to “Modified Count One: Attempted possession of a dangerous drugs [sic], a class five felony, ... committed on the 19th day of April, 2009.” In exchange, the agreement provided that “Count One, as originally charged” and “Counts Two and Three” would be dismissed. The factual basis section recited: “Please see the attached description of the statutory elements and factual basis for the offense(s) to which the defendant is pleading guilty. The attachment has been prepared by the defense and signed by the defendant.” The plea agreement is marked as pages 5–7.

The record also includes an untitled, undated document, marked as page 8, that was signed by Juarez Alvarado, his attorney and the prosecutor.² The document recites the text of the relevant statutes and further states:

On April 19, 2009, I, Luis Felipe Juarez–Alvarado, was stopped for a traffic violation. I had a suspended driver's license at the time and was placed under arrest. My vehicle was searched, and approximately 4.5 grams of methamphetamine was found. When asked, I stated that I paid about $50 for the bag of methamphetamine.

At the bottom of the page is a stamp, signed by the deputy clerk on August 17, 2009, certifying the document to be “a true copy of the original on file” in Juarez Alvarado's criminal case. Juarez Alvarado contends this document “was not part of the plea agreement” and “seems to have been added later, without [his] knowledge or consent.”

Juarez Alvarado appeared in court to enter his guilty plea on August 13, 2009. The record does not include a transcript of this proceeding. The court entered a judgment of conviction, finding Juarez Alvarado “guilty of the crime of Modified Count One, Attempted Possession of Dangerous Drugs, a Class Five Felony,” and sentencing him to 48 months of intensive probation.

Two weeks later, the Department of Homeland Security issued Juarez Alvarado a Notice to Appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(B)(i), based on his conviction for a controlled substance offense. Juarez Alvarado, who proceeded pro se throughout administrative proceedings, denied removability and filed a motion to terminate the removal proceedings, contending that his conviction was not “categorically a conviction relating to a substance covered by the CSA,” and “DHS has not met its burden of proving the substance for which he was convicted is covered by the CSA.” The IJ denied his motion, acknowledging that the controlled substance was not specified in the judgment, but concluding that the drug was identified as methamphetamine in “part of th[e] plea agreement.” After determining that Juarez Alvarado was not eligible for cancellation of removal or any other forms of relief, the IJ ordered him removed to Mexico. On appeal, the BIA affirmed the LPs decision without written opinion.

STANDARD OF REVIEW

Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review questions of law when a final order of removal is predicated on a criminal conviction. See Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir.2009). Whether a particular conviction constitutes a removable offense is a question of law that we review de novo. See id. Where, as here, “the BIA summarily affirms the IJ's decision, we review the IJ's decision as the final agency action.” Pagayon v. Holder, 675 F.3d 1182, 1188 (9th Cir.2011) (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006)) (internal quotation marks omitted).

DISCUSSION

We analyze whether a conviction qualifies as a predicate offense for removal purposes by employing the framework the Supreme Court constructed in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Mielewczyk, 575 F.3d at 994. We begin by applying 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.” Id. We next apply a “modified categorical approach” if the state statute of conviction is broader than the generic federal offense and is also “divisible,” meaning that it “comprises multiple, alternative versions of the crime,” at least one of which “correspond [s] to the generic offense.” Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2284–85, 186 L.Ed.2d 438 (2013).³ Under the modified categorical approach, we “consider a limited class of judicially noticeable documents to determine whether the applicable alternative ... was the basis of the conviction.” United States v. Gonzalez–Monterroso, 745 F.3d 1237, 1241 (9th Cir.2014).

Juarez Alvarado raises two challenges to the IJ's determination that his conviction for attempted possession of a dangerous drug is a removable controlled substance offense.⁴ First, he contends that the Arizona definition of attempt is categorically broader than the federal definition. He acknowledges that we have previously held “that the Arizona and federal definitions of attempt are coextensive,” United States v. Taylor, 529 F.3d 1232, 1234 (9th Cir.2008), but argues that an intervening unpublished Arizona state court of appeals opinion, State v. Garcia, No. 2 CA–CR 2008–0020, 2009 WL 104639 (Ariz.Ct.App. Jan. 15, 2009), warrants revisiting that decision. Second, he argues that, under the modified categorical approach, the government failed to prove that his Arizona conviction was for a substance listed in the Controlled Substances Act. See S–Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir.2010); see also21 U.S.C. § 802(6); 21 C.F.R. §§ 1308.11– 15. We address each argument in turn.

A.

Before we can reach the merits of Juarez Alvarado's attempt argument, we must determine whether it was properly exhausted. Generally, 8 U.S.C. § 1252(d)(1) “mandates exhaustion and therefore ... bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).⁵ We conclude that because Juarez Alvarado did not sufficiently exhaust his argument that the Arizona definition of attempt is categorically broader than the federal generic definition, we lack jurisdiction to reach this issue.

Juarez Alvarado contends that he sufficiently exhausted his attempt argument by arguing that his state law convictionwas not categorically a removable controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). Although “[a] petitioner need not ... raise [his] precise argument” in administrative proceedings, Vizcarra–Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.2008), he “cannot satisfy the exhaustion requirement by making a general challenge to the IJ's decision, but, rather, must specify which issues form the basis of the appeal,” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004). Juarez Alvarado's only argument in his brief before the BIA concerned the sufficiency of the government's proof that the controlled substance involved in his conviction was methamphetamine. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (per curiam) (holding that when a petitioner files a brief before the BIA, he is deemed to have exhausted only the issues raised and argued in that brief). Even liberally construing Juarez Alvarado's pro se claims, see Vizcarra–Ayala, 514 F.3d at 873, his brief did not raise a “general argument” about attempt....