Medina-Lara v. Holder
| Citation | 771 F.3d 1106 |
| Decision Date | 10 October 2014 |
| Docket Number | No. 13–70491.,13–70491. |
| Parties | Jose Luis MEDINA–LARA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Lori K. Walls, Washington Immigration Defense Group, Seattle, Washington, and Devin Theriot–Orr (argued), Gibbs Houston Pauw, Seattle, Washington, for Petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Brendan P. Hogan (argued), Attorney, Civil Division, Office of Immigration Litigation, 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. A079–361–360.
Before: JOHN T. NOONAN, MICHAEL DALY HAWKINS, and MORGAN CHRISTEN, Circuit Judges.
The Opinion filed September 19, 2014, and appearing at 767 F.3d 801 (9th Cir.2014), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.
Jose Medina–Lara (“Medina”), a Mexican citizen and lawful permanent resident of the United States, seeks review of a final order of the Board of Immigration Appeals (“Board”) authorizing his removal to Mexico. The Board held that Medina is removable because his 2005 California drug conviction is both an “aggravated felony” and a “conviction relating to a controlled substance” and because a sentence enhancement appended to that conviction is a “firearm offense,” as those terms are defined by the Immigration & Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2). Because each of these conclusions is erroneous, we grant the petition.
Immigration authorities admitted Medina as a lawful permanent resident in 2002. In 2005, a California court convicted Medina of violating California Health & Safety Code § 11351 and applied an enhancement for carrying a firearm during that offense in violation of California Penal Code § 12022(c). In 2007, a California court convicted Medina of violating California Health & Safety Code § 11377. All convictions were entered pursuant to plea agreements. We refer to these convictions by their statute number (e.g., the “§ 11351 conviction”). We refer to the § 11351 and the § 11377 convictions collectively as “the drug convictions.”
After he completed his sentence for the § 11377 conviction, the Department of Homeland Security (“DHS”) took Medina into custody and initiated removal proceedings.1 Although the charging documents in the record are somewhat unclear, it appears that DHS alleged that the drug convictions render Medina removable because each is both an aggravated felony and a conviction relating to a controlled substance under the INA.2 DHS further alleged the § 12022 conviction renders Medina removable because it is a firearm offense under the INA.3 Medina denied these allegations and, in the alternative, applied for cancellation of removal.4
Proceedings before the agency were protracted. Medina first appeared before an Immigration Judge (“IJ”) in San Francisco, California, on November 17, 2009. Medina requested an initial continuance to obtain counsel and later requested additional time to pursue a U-visa. For its part, DHS requested several continuances to supplement the record with documents pertaining to Medina's convictions. This was necessary because the parties and the IJ seemed to agree early on in the proceedings that the drug convictions were not categorically predicate offenses under the INA, thus requiring application of the modified categorical approach as described in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
The first round of IJ proceedings took about six months and involved at least five separate requests by the IJ to have the government supply Shepard -compliant documents which would unambiguously establish the nature of Medina's convictions. At an early hearing, DHS represented that it was seeking additional documents to supplement the record, and the IJ granted a continuance, in part, to allow the government to respond to that request.5 When, at a hearing six weeks later, the government produced no new documents, the IJ got specific, noting that “there must have been a super [s]eding charging document at some point and we don't have that” in the record. Once again, the IJ requested additional documentation, and later on in the same hearing, it appears DHS's attorney agreed to provide it, saying “[w]e need to get the super[s]eding indictment.” The IJ granted another continuance.6 Two weeks later, the government failed to produce the requested documents and yet again asked for more time. The IJ granted the government's request, saying, “let's ... see what the government can come up with by way of documents and the more the better.”7 Two weeks after that, the government did submit “additional documents”; however, even these appear to have been insufficient, because the IJ requested further Shepard -compliant documents so that the court could “get into a position where there's no ambiguity whatsoever about [Medina]'s convictions.” The IJ specifically noted he wanted to avoid “a situation where it turns out later someone makes an assertion he was convicted of something and there's a dispute about it.”8
Two and a half months later, the parties reconvened. The IJ, noting that the 2004 complaint contained “a complicated set of charges,” called the minutes of the state court proceedings “a jumble” and once again asked the government to clarify if it had requested a transcript of Medina's 2005 plea colloquy, saying, “I think [the transcript] ought to be requested.” Because the government was not sure if it had requested the documents, the IJ gave the government one more month to supplement the record. Medina, by now detained for five months, consented to the continuance even though he was ready to proceed on that date.9 Finally, at a June 6, 2010, hearing, the government admitted it was unable to produce the transcript and instead attempted to submit a probation report to clarify the nature of Medina's convictions. The IJ excluded that report under Shepard.10
Though the government neither produced the requested plea colloquy nor any additional unambiguous documents, the IJ nevertheless ordered Medina's removal, holding that each drug conviction is both an aggravated felony and a controlled substance offense under the INA and that the § 12022 conviction is a firearm offense under the INA. Medina appealed to the Board. In an order dismissing Medina's appeal (the “2010 order”), the Board held that Medina was removable on all five grounds identified by the IJ; put another way, the Board reached a conclusion as to all of DHS's allegations.
Medina then sought review in this court. Before we could hear the case on the merits, the Board sua sponte reopened Medina's case to reconsider his application for cancellation of removal. Divested of jurisdiction, we dismissed the pending petition for review. Medina–Lara v. Holder, 10–73377, ECF No. 48 (9th Cir. Feb. 16, 2012) (order).
The Board remanded the reopened case to the IJ for reconsideration of Medina's cancellation application. At this point, litigation virtually began anew. Following a transfer of venue to the immigration court in Tacoma, Washington, where Medina was detained, Medina renewed his efforts to terminate removal proceedings based on his theory that none of his convictions suffices as a predicate for removal, initiated state post-conviction proceedings in an effort to vacate his California convictions, and restarted his efforts to obtain a U-visa. DHS opposed these efforts and sought a new removal order. The Tacoma-based IJ ordered Medina's removal. The IJ held that § 11351, though not categorically an aggravated felony or a controlled substances offense, is divisible and that an application of the modified categorical approach showed that the § 11351 conviction constitutes both an aggravated felony and a controlled substance offense. The IJ further held that § 12022 is categorically a firearm offense under the INA, and thus ordered Medina removed on that ground as well. The IJ did not address the § 11377 conviction. Medina appealed to the Board, which affirmed, also without addressing the § 11377 conviction. Medina again sought review in this court.
Notwithstanding 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to determine our jurisdiction and to determine as a question of law whether the underlying predicate offenses render Medina removable. 8 U.S.C. § 1252(a)(2)(D) ; Malilia v. Holder, 632 F.3d 598, 601–02 (9th Cir.2011). While we may consider only those arguments raised in administrative proceedings, Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004), we deem exhausted any issues addressed by the Board. Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir.2010).
Where, as here, the Board incorporates the IJ's decision into its own without citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will review the IJ's decision to the extent incorporated. Ahir v. Mukasey, 527 F.3d 912, 916 (9th Cir.2008) (citation omitted). Thus, we refer to the Board and IJ collectively as “the agency.” We review the agency's legal conclusions de novo. Malilia, 632 F.3d at 602.
We hold that Medina's § 11351 conviction is neither an aggravated felony nor controlled substance offense under the INA.
To determine whether the § 11351 conviction is a predicate aggravated felony or controlled substance offense, we use the framework set out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), as refined by its progeny, most notably Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).11 The Taylor–Descamps framework lays out a three-step process for determining whether a...
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