Coronado v. Holder

• Decision Date: 14 March 2014
• Docket Number: No. 11–72121.,11–72121.
• Citation: 747 F.3d 662
• Parties: Raul Quijada CORONADO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

747 F.3d 662

Raul Quijada CORONADO, Petitioner,

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

No. 11–72121.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 8, 2013.

Filed March 14, 2014.

Bradley J. Hamburger (argued), Theane Evangelis Kapur, and Brandon S. Dimond, Gibson, Dunn & Crutcher LLP, Los Angeles, California, for Petitioner.

Jessica R.C. Malloy (argued), Trial Attorney; Stuart F. Delery, Acting Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; and Katherine A. Smith, Trial Attorney, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A012–632–641.

Before: FORTUNATO P. BENAVIDES,^*JAY S. BYBEE, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

Raul Quijada Coronado petitions for review of the Board of Immigration Appeals' (“BIA”) decision finding him inadmissible and denying his application for cancellation of removal. Coronado argues that the BIA erred in concluding that he had suffered two prior convictions for possession of a controlled substance prohibited under the Federal Controlled Substances Act (“CSA”), 21 U.S.C. § 802. See8 U.S.C. § 1182(a)(2)(A)(i)(II). Coronado further argues that the BIA erred in failing to address his constitutional claims.

We hold that the statute under which Coronado was convicted, California Health & Safety Code § 11377(a), is a divisible statute, and thus, we apply the modified categorical approach in analyzing Coronado's prior convictions. See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) (stating that the modified categorical approach applies only to prior convictions under a “divisible” statute, one that “sets out one or more elements of the offense in the alternative”). Under that approach, the government satisfied its burden of proving that Coronado was twice convicted of possessing methamphetamine, a controlled substance listed in the CSA. Therefore, the BIA did not err in finding Coronado inadmissible based on his prior convictions.

However, because the BIA failed to address Coronado's due process claims, which allege ineffective assistance of counsel and bias by the immigration judge (“IJ”), we remand to the BIA for consideration of these claims in the first instance. We dismiss Coronado's unexhausted equal protection claim for lack of jurisdiction.

Background

I

Coronado, a native and citizen of Mexico, became a legal permanent resident of the United States in 1961. In 1998, he was charged in state court with possession of methamphetamine in violation of California Health & Safety Code § 11377(a). According to the state court's certified electronic docket in Case No. 8LC01036, he pleaded guilty to “Count (01),” the only charge in the criminal complaint. In December 2006, the court entered judgment against Coronado “as to Count (01)” (the “2006 Conviction”).

On September 15, 2008, Coronado applied for admission to the United States after making a trip to Mexico. Upon checking his criminal records, Border Patrol officers learned of the 2006 Conviction. On that same day, Coronado was paroled into the United States, and the Department of Homeland Security (“DHS”) served him with a Notice to Appear. In May 2009, DHS served him with a Form I–261, which alleged, among other things, that Coronado was subject to removal due to his conviction in 2006 for possession of methamphetamine.

In December 2009, while in removal proceedings, Coronado was again charged in state court with possession of methamphetamine in violation of California Health & Safety Code § 11377(a). According to the court minutes in Case No. JCF24680, on March 23, 2010, Coronado pleaded guilty to “Count 1: HS11377(A),” the only charge in the criminal complaint (the “2010 Conviction”).

II

A

During his removal proceedings, Coronado denied having been convicted of methamphetamine possession. To prove the 2006 Conviction, the government submitted the criminal complaint and the certified electronic docket of that case. Further, to prove the 2010 Conviction, the government submitted documents that includedthe criminal complaint and the court minutes of that case.

The IJ found Coronado inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) due to his convictions for possession of a controlled substance listed in the CSA. Further, after weighing the relevant factors, the IJ denied Coronado's application for cancellation of removal.

Appearing pro se, Coronado appealed to the BIA, which affirmed the IJ's finding that Coronado was inadmissible based on his prior drug convictions. The BIA also affirmed the IJ's denial of cancellation of removal on the ground that Coronado's “undesirability as a permanent resident” outweighed the positive equities. Coronado timely petitioned for review.

B

In his opening brief to this court, Coronado did not challenge the use of the modified categorical approach with regard to his prior convictions. Instead, he argued that the BIA erred because the charging papers alone were insufficient to prove that he was convicted of possessing a controlled substance listed in the CSA.

While Coronado's petition for review was pending, the Supreme Court issued a decision in Descamps v. United States, 133 S.Ct. 2276, which clarified the circumstances in which the modified categorical approach may be applied. The parties filed letters pursuant to Federal Rule of Appellate Procedure 28(j), taking contrary positions as to the applicability of the modified categorical approach to Coronado's state court convictions. The government argued that § 11377(a) is a divisible statute, whereas Coronado contended that the statute is not necessarily divisible.

Jurisdiction and Standard of Review

We have jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D); see also Cheuk Fung S–Yong v. Holder, 600 F.3d 1028, 1033 (9th Cir.2010) (applying 8 U.S.C. § 1252(a)(2)(D)). Whether Coronado's drug convictions render him inadmissible is a question of law. See Pagayon v. Holder, 675 F.3d 1182, 1189 (9th Cir.2011) (per curiam); Cazarez–Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004). Further, Coronado raised several constitutional claims. Accordingly, we have jurisdiction to hear Coronado's petition.

We review questions of law and constitutional claims de novo. Khan v. Holder, 584 F.3d 773, 776 (9th Cir.2009).

Discussion

I

Under 8 U.S.C. § 1182(a)(2)(A)(i)(II), “any alien convicted of, or who admits to having committed ... (II) a violation of (or conspiracy or attempt to violate) any law or regulation of a State ... relating to a controlled substance (as defined in section 802 of title 21), is inadmissible.” Here, Coronado challenges the BIA's finding of inadmissibility based on his two prior convictions for possessing methamphetamine, in violation of California Health & Safety Code § 11377(a). Thus, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II), the government had the burden of proving that Coronado's criminal conviction was for possession of a substance that is listed under California law and the CSA schedules. See Ruiz–Vidal v. Gonzales, 473 F.3d 1072, 1077–78 (9th Cir.2007). If the “full range of conduct” covered by § 11377(a) falls within the CSA schedules, then Coronado's conviction is “categorically a removable offense” and our inquiry is over. Alanis–Alvarado v. Holder, 558 F.3d 833, 836 (9th Cir.2009).

A

California Health & Safety Code § 11377(a) provides:

Except as authorized by law ... every person who possesses any controlled substances which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055 ... shall be punished by imprisonment in a county jail for a period of not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code.

By comparison, the CSA defines a “controlled substance” as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C. § 802(6). In turn, the schedules are codified in 21 U.S.C. § 812 and revised annually in 21 C.F.R. § 1308.01 et seq.See21 U.S.C. §§ 802(6), 812(a).

The text of the relevant statutes is not particularly helpful here because both § 11377(a) and the CSA define offenses by reference to other statutes. Nevertheless, as laid out in Appendix 1, the substances barred by § 11377(a) and the CSA are nearly identical. Indeed, khat ( Catha Edulis ) is one of the only substances that violates § 11377(a) but not the CSA.¹SeeCal. Health & Safety Code § 11377(a)(5) (prohibiting substances specified in California Health & Safety Code § 11055(d), (e), or (f)); Cal. Health & Safety Code § 11055(d)(7) (prohibiting “[k]hat, which includes all parts of the plant classified botanically as Catha Edulis”); see also, e.g., United States v. Hassan, 578 F.3d 108, 114 (2d Cir.2008) (“Khat itself is not a controlled substance under United States law.”); United States v. Caseer, 399 F.3d 828, 833 (6th Cir.2005) (“[N]either the U.S.Code nor the Code of Federal Regulations ... refers to ... Catha edulis, commonly known as ‘khat.’ ”).

This one difference is sufficient because the “full range of conduct” covered by California Health & Safety Code § 11377(a) does not fall within the CSA schedules, and as such, Coronado's conviction is not a categorically removable offense.² Accordingly, we must consider whether we may use the “modified categorical” approach to determine whether Coronado was convicted of a removable offense under 8 U.S.C. § 1182(a)(2)(A)(i)(I...