Lara-Chacon v. Ashcroft

• Decision Date: 10 October 2003
• Docket Number: No. 02-70317.,02-70317.
• Citation: 345 F.3d 1148
• Parties: Rafael LARA-CHACON, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

345 F.3d 1148

Rafael LARA-CHACON, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-70317.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2003 — San Francisco, California.

Filed October 10, 2003.

As Amended November 6, 2003.

Bertram Polis, Polis & Sadacca, Tucson, Arizona, for the petitioner.

Papu Sandhu, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Immigration and Naturalization Service. INS No. A30-772-962.

Before: John T. Noonan, A. Wallace Tashima, and Kim McLane Wardlaw, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Rafael Lara-Chacon ("Petitioner" or "Lara Chacon"), a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals ("BIA"), dismissing his appeal of the immigration judge's ("IJ's") order finding Lara-Chacon removable for having been convicted of an aggravated felony and for having been convicted of violating a law related to a controlled substance. We grant the petition, vacate the order and remand.

BACKGROUND

Petitioner was admitted to the United States in 1970 as an immigrant. In 1999, he was convicted, based on a guilty plea, of five counts of conspiracy to commit money laundering in violation of Ariz.Rev.Stat. §§ 13-1003, 13-2317(A)(1) and (C), and was sentenced to three and one-half years' imprisonment. As a result of these convictions, the Immigration and Naturalization Service ("INS") charged Petitioner with being subject to removal for being an alien convicted of an aggravated felony under the Immigration and Nationality Act ("INA"), § 237(a)(2)(A)(iii).¹

The INS initially charged Lara Chacon with removability based on money laundering in excess of $10,000, which is defined as an aggravated felony in INA § 101(a)(43)(D).² In two subsequent amendments to the charging document, the INS added charges of removability based on illicit trafficking in a controlled substance, INA § 101(a)(43)(B),³ an aggravated felony, and controlled substance violation, INA § 237(A)(2)(B)(i).⁴

After several continuances of his merits hearing, Petitioner admitted that he was a citizen of Mexico. At a later hearing, Petitioner admitted to his convictions, but denied that his convictions qualified as removable offenses under the INA. The IJ construed the denial as a motion to terminate the proceedings, and gave the parties the opportunity to submit briefs and continued the hearing.

The INS attached a copy of Petitioner's Presentence Report ("PSR") to its brief. After receiving the briefs and without holding any hearing on the issue, the IJ issued an order finding Petitioner removable for having been convicted of the aggravated felony of trafficking in controlled substances and for violating a law related to a controlled substance. Based solely on information in the PSR, he concluded that Petitioner's money laundering convictions were predicated upon trafficking in marijuana, a controlled substance. The IJ cited the PSR as follows:

[T]he Presentence Report states that the respondent was identified as a "drug broker, who put drug deals together." Consequently, other criminal cohorts would "call Lara [the petitioner] when they needed marijuana." On the basis of the foregoing, it is evident to this Court that the respondent's state felony conviction for racketeering/money laundering involved marijuana.

. . . .

Again the Presentence Report indicates that "Rafael Lara was identified as a drug broker, who put drug deals together. . . Defendants Carlos Taylor and David Garcia called Lara when they needed marijuana.

The IJ found that marijuana is a controlled substance under the Controlled Substance Act, and therefore that the conviction was for trafficking in an illicit controlled substance. Additionally, the IJ found Lara-Chacon removable because the conviction constituted a "violation[ ] of a law of a State relating to a controlled substance with the meaning of § 237(a)(2)(B)(i) of the Act." (emphasis in original). The IJ found that the exception from removability in the INA for aliens convicted only of a "single offense involving possession for one's own use of thirty grams or less of marijuana" under § 237(a)(2)(B)(i) did not apply because "respondent was a drug dealer, who dealt in large quantities of marijuana." The IJ based this conclusion on an exhibit to the PSR "indicating that respondent's cohorts were found transporting 15 pounds of marijuana." (emphasis in the original).

The IJ dismissed the charge for the aggravated felony of money laundering because there was no showing of the amount of funds that was laundered.

Petitioner appealed to the BIA, which dismissed his appeal. The BIA rejected Petitioner's challenge to the use of the PSR, finding it admissible under 8 C.F.R. § 3.41(a)(6) and § 3.41(d).⁵ The BIA noted the parts of the PSR that referred to Lara-Chacon as a "`drug dealer, who put drug deals together'" and to the fact that his "criminal cohorts would' call Lara [the petitioner] when they needed marijuana.'" Additionally, the BIA noted that the PSR indicated that the conviction involved the transportation of 15 pounds of marijuana. The BIA found that because marijuana is a controlled substance, the conviction constituted trafficking in a controlled substance, an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). Additionally, the BIA agreed with the IJ's reasoning for the second charge of removability under § 1227(a)(2)(B)(i) (conviction relating to a controlled substance). The BIA also agreed with the IJ's dismissal of the money laundering charge.

STANDARD OF REVIEW

We review de novo the question of whether a conviction under state law is a deportable offense. See Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997). While the BIA's interpretation of immigration laws is entitled to deference, see INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999), we are not obligated to accept an interpretation that is contrary to the plain and sensible meaning of the statute. See Beltran-Tirado v. INS, 213 F.3d 1179, 1185 (9th Cir.2000).

ANALYSIS

I. Jurisdiction

Respondent challenges our jurisdiction to hear this case. Pursuant to the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), if the BIA correctly concluded that Lara Chacon was convicted of an aggravated felony, the court lacks jurisdiction to review the removal decision. See 8 U.S.C. § 1252(a)(2)(C). However, because we retain jurisdiction to determine our own jurisdiction by assessing whether the conviction was indeed for an aggravated felony, "the jurisdictional question and the merits collapse into one." Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). Because we conclude that the record does not demonstrate that Lara-Chacon was convicted of a removable offense, we retain jurisdiction.

II. Removability

Because the initial basis charged for removing Lara-Chacon (money laundering) was insufficient,⁶ the INS attempted to stretch two provisions to Lara-Chacon's conviction in order to establish it as a removable offense by adding charges of removability based on the aggravated felonies of drug trafficking and a controlled substance violation. The record, however, does not establish that Lara-Chacon was convicted of these offenses.

To determine whether an offense qualifies as an aggravated felony, we first make a categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed by the statute of conviction is broader than, and so does not categorically fall within, this generic definition. See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). For this purpose we "`look only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Taylor also permits us "to go beyond the mere fact of conviction in a narrow range of cases." 495 U.S. at 602, 110 S.Ct. 2143. In cases where a state statute criminalizes both conduct that does and does not qualify as an aggravated felony, we review the conviction using a modified categorical approach. "Under the modified categorical approach, we conduct a limited examination of documents in the record to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime even though his or her statute was facially overinclusive." Chang, 307 F.3d at 1189. In Corona-Sanchez, we explained what documents are adequate to provide evidence of the elements of the conviction:

[I]n the case of a jury trial, the charging document and jury instructions from the prior offense may demonstrate that the "jury was actually required to find all the elements" of the generic crime. Similarly, if a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime. Charging papers alone are never sufficient. However, charging papers may be considered in combination with a signed plea agreement.

291 F.3d at 1211 (internal citations omitted).

A. Drug Trafficking

The BIA affirmed the IJ's finding that Lara-Chacon's conviction for conspiracy to commit money laundering constituted the aggravated felony of trafficking in a controlled substance under 8 U.S.C. § 1101(a)(43)(B). This provision defines an aggravated felony as the "illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). In turn, 18 U.S.C. § 924(c)(2) defines a "drug...