Medina v. Ashcroft

• Decision Date: 04 January 2005
• Docket Number: No. 03-71966.,03-71966.
• Citation: 393 F.3d 1063
• Parties: Jose Prides MEDINA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

393 F.3d 1063

Jose Prides MEDINA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-71966.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2004.

Filed January 4, 2005.

Vicenta E. Montoya, Las Vegas, NV, for the petitioner.

Susan K. Houser, Jennifer Levings, Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A35-116-817.

Before CANBY, RYMER, and HAWKINS, Circuit Judges.

Opinion by Judge CANBY; Dissent by Judge RYMER.

OPINION

CANBY, Circuit Judge.

Jose Valdes Medina¹ is a permanent resident of this country, having been admitted as an immigrant from Cuba in 1976. He petitions for review of an order of removal entered by an immigration judge (IJ) and affirmed without opinion by a single member of the Board of Immigration Appeals.² The IJ ordered Medina's removal because the State of Nevada convicted him of attempting to be under the influence of a controlled substance — namely, THC-carboxylic acid.³

The government may remove Medina if his Nevada conviction "relat[es] to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana." 8 U.S.C. § 1227(a)(2)(B)(i). If Medina was removable under this provision, we have no jurisdiction to review his removal. See 8 U.S.C. § 1252(a)(2)(C). If he is not removable for a controlled substance offense, then we have jurisdiction and he necessarily prevails. Thus "the jurisdictional question and the merits collapse into one." Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).⁴

We conclude that Medina is not removable under section 1227(a)(2)(B)(i) because the government has failed to establish that his Nevada conviction was for "other than a single offense involving possession for one's own use of 30 grams or less of marijuana."⁵ If that provision regarding possession of small amounts of marijuana for personal use is to have a sensible meaning, its protection must extend to the personal use for which possession is excused.

We must not be misled by the fact that Medina's conviction was for attempting to be under the influence of THC-carboxylic acid.⁶ The government concedes that THC-carboxylic acid is a metabolite of the human body.⁷ The government also concedes that marijuana use causes a person to test positive, as Medina did, for THC-carboxylic acid.

It is true that the body may be caused to produce THC-carboxylic acid by the use of substances other than marijuana. Use of THC itself,⁸ or of hashish, would also cause the body to produce THC-carboxylic acid, and possession of small amounts of THC or hashish is not excused under section 1227(a)(2)(B)(i). In analyzing Medina's conviction for purposes of removal however, we take a categorical approach and look to the statutory definition of the crime of conviction. See Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004). If the definition of the crime does not establish removability, we may look beyond it under a "modified" categorical approach to a limited set of documents in the record of conviction: "the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings." Id.; see also Li v. Ashcroft, 389 F.3d 892, 896-97 (9th Cir.2004). Nothing in the statutory definition of Medina's crime or in the specified documents negates the possibility (indeed the likelihood) that Medina's conviction resulted from the personal use of marijuana in an amount less than 30 grams.⁹ For all that the controlling documents reveal, Nevada convicted Medina for his personal use of a small amount of marijuana.

The government argues vigorously that marijuana use cannot come within the provision of section 1227(a)(2)(B)(i) relating to marijuana possession. This is not a sensible construction of the governing statute. Congress provided that a person is not subject to removal for "a single offense involving possession for one's own use of 30 grams or less of marijuana." 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). It defies reason to conclude that Congress wanted to protect a person who possessed marijuana in small amounts for his own use, but then wanted to remove him from the country if he did so use it. That is why we observed in Flores-Arellano v. INS, 5 F.3d 360 (9th Cir.1993), that "the exception for a single conviction involving personal-use marijuana possession includes an implicit exception for a single conviction of actual personal use of marijuana." Id. at 363. We pointed out that this interpretation "makes absolute logical sense." Id. We noted that use of drugs "has generally been considered a less serious crime than possession." Id. at 363 n. 5. Indeed, under the plain words of section 1227(a)(2)(B)(i), it is virtually impossible to conclude that personal use of less than 30 grams of marijuana is not an offense "involving possession for one's own use of 30 grams or less of marijuana." Id. (emphasis added). We therefore conclude that the provision of section 1227(a)(2)(B)(i) negating removability for marijuana possession for one's own use applies to Medina's actual use of marijuana.

Medina has been ordered removed from this country because he personally used a small amount of marijuana, and he was convicted because that use showed up in a drug test. At the least, the government has failed to sustain its burden of proving otherwise.

[W]hen the documents that we may consult under the "modified" approach are insufficient to establish that the offense the petitioner committed qualifies as a basis for removal ... we are compelled to hold that the government has not met its burden of proving that the conduct of which the defendant was convicted constitutes a predicate offense, and the conviction may not be used as a basis for removal.

Tokatly, 371 F.3d at 620-21. We conclude, therefore, that removal of Medina on the basis of his conviction for attempt to be under the influence of THC-carboxylic acid is not authorized by section 1227(a)(2)(B)(i). We accordingly have jurisdiction over Medina's petition for review, and he prevails on the merits. We grant the petition for review, reverse the order of removal, and remand the matter to the Board for disposition consistent with this opinion.

PETITION FOR REVIEW GRANTED; REVERSED and REMANDED.

RYMER, Circuit Judge, dissenting.

The majority's opinion turns on its view that "Medina has been ordered removed from this country because he personally used a small amount of marijuana." Maj. op. at 71. The problem is, this is not at all why Medina was ordered removed. He was ordered removed based on his controlled substance conviction for the offense of attempting to be under the influence of THC-carboxylic acid in violation of Nev.Rev.Stat. §§ 193.330 and 453.411. THC is listed as a controlled substance on both the Nevada schedule of controlled substances and the federal schedule — and it is listed separately from marijuana. See 21 U.S.C. §§ 802, 812; compare § 812(c) Sch. I(c)(10) with § 812(c) Sch. I(c)(17); see also Nev. Admin. Code § 453.510. The definition of THC in these schedules encompasses THC-carboxylic acid.¹ In my view, this satisfies the government's burden of proving that Medina was convicted of a controlled substance violation other than a single offense involving possession for one's own use of 30 grams or less of marijuana.

Medina's argument that THC-carboxylic acid is a metabolite in the body and can be caused by marijuana ingestion does nothing to undercut this; at best it amounts to an argument that he was charged with the wrong offense. However, it is too late for this. Medina was represented by counsel and chose to plead guilty to a THC violation. He did not plead guilty to possessing 30 grams or less of marijuana intended for personal use. Nor did he argue that the factual basis for his plea was insufficient on the ground that what he actually attempted to be under was the influence of marijuana rather than THC. Further, Medina pled guilty to a THC use offense, not to a marijuana possession offense. Because the two substances are separately listed, and Medina admitted that he attempted to be under the influence of THC, the government has shown that he was ordered removed based on a controlled substance offense...