Ruiz-Vidal v. Gonzales

• Decision Date: 18 January 2007
• Docket Number: No. 04-73812.,04-73812.
• Citation: 473 F.3d 1072
• Parties: Jose Reyes RUIZ-VIDAL, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

473 F.3d 1072

Jose Reyes RUIZ-VIDAL, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-73812.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2006.

Filed January 18, 2007.

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Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, argued the cause for the petitioner and filed a brief.

Jamie M. Dowd, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., argued the cause for the respondent and filed a brief. Peter D. Keisler, Assistant Attorney General, and David V. Bernal, Assistant Director, were on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A34-639-824.

Before: BEEZER, O'SCANNLAIN, TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the Department of Homeland Security has met its burden of proving that the petitioner is removable from the United States as an alien convicted of a law relating to a controlled substance.

I

A

Jose Ruiz-Vidal is a 49 year-old Mexican national who legally immigrated to the United States in August 1976. On October 26, 1998, Ruiz-Vidal pleaded nolo contendere in California Superior Court to one count of criminal possession of methamphetamine, in violation of Cal. Health & Safety Code § 11377(a) (the "1998 conviction"). Thereafter, the government sought to have Ruiz-Vidal removed from the United States on the basis of this conviction. Though Ruiz-Vidal was found removable by the immigration judge, he was granted cancellation of removal pursuant to § 240(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(a), which allows the Attorney General to cancel the removal of an alien who is a permanent resident if that alien has been a permanent resident for five years, has resided continuously in the United States for seven years, and has not been convicted of an aggravated felony.

On February 10, 2003, Ruiz-Vidal was charged in California Superior Court with one count of violating Cal. Health & Safety Code § 11378 (possession of a controlled substance for purpose of sale) and one count of violating Cal. Health & Safety Code § 11379(a) (transportation of a controlled substance). The charging document alleged in Count I that Ruiz-Vidal had committed a felony, "to wit: POSSESSION FOR SALE OF A CONTROLLED SUBSTANCE, a violation of Section 11378 of the HEALTH & SAFETY CODE of California, in that [he] did unlawfully possess for purposes of sale a controlled substance, to wit: METHAMPHETAMINE." Count II alleged that he had committed a felony, "to wit: TRANSPORTATION OF A CONTROLLED SUBSTANCE, a violation of Section 11379(a) of the HEALTH & SAFETY CODE of California, in that [he] did unlawfully transport METHAMPHETAMINE." The record contains an abstract of judgment which shows that on March 24, 2003, Ruiz-Vidal pleaded guilty in the Superior Court of Alameda County to one count of violating Cal. Health & Safety Code § 11377(a). The crime listed on the abstract of conviction was "Possess Controlled Substance" (the "2003 conviction").

B

The Department of Homeland Security ("DHS") commenced removal proceedings against Ruiz-Vidal on December 16, 2003 with the issuance of a Notice to Appear, alleging that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). That section renders removable an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B), an offense relating to the illicit trafficking in a controlled substance, as described in Section 102 of the Controlled Substances Act ("CSA"), 21 U.S.C. § 802. On January 20, 2004, DHS added a second charge, alleging that Ruiz-Vidal was subject to removal as an alien who, after admission, had been convicted of a violation of a law relating to a controlled substance, as that term is defined in the CSA. 8 U.S.C. § 1227(a)(2)(B)(i). For reasons unrelated to this appeal, DHS eventually dropped the aggravated felony theory and proceeded only upon the controlled substance theory.

During a February 4, 2004, hearing, the immigration judge ("IJ") admonished the government that it had not yet advised the court as to what substance was involved in Ruiz-Vidal's 2003 conviction. The IJ told the government that it would have to prove that the drug involved was a controlled substance as defined in Section 102 of the CSA.¹ The IJ issued its oral decision on March 11, 2004. The IJ determined that the convictions involved methamphetamine, and further stated that "any substance listed in 11377 are [sic] included within the federal ambit of Section 102 of the Controlled Substances Act ... So the Court does find that they are crimes involving a controlled substance." Accordingly, the IJ ordered that Ruiz-Vidal be removed to Mexico.

C

Ruiz-Vidal appealed the decision of the IJ to the Board of Immigration Appeals ("BIA" or "Board"). The principal argument raised by Ruiz-Vidal to the Board was that DHS had not met its burden of proving that the substance which Ruiz-Vidal pleaded guilty to possessing in 2003 was a controlled substance under Section 102 of the CSA. On July 22, 2004, the BIA affirmed without opinion the IJ's order that Ruiz-Vidal be removed from the United States to Mexico. Thereafter, Ruiz-Vidal filed a "Motion to Reconsider" with the BIA, again raising only one argument: that DHS was required to prove that the substance involved in the 2003 conviction was a controlled substance, as defined by Section 102 of the CSA, and that it had not done so. The Board rejected that argument, ruling on August 24, 2004, that "[t]he respondent's motion fails to identify particular errors of fact or law in our prior decision. Instead, he merely presents the same arguments which we previously considered before rendering a decision in this case. We decline to revisit them."

Ruiz-Vidal filed a timely petition for review to this court.

II

A

Ruiz-Vidal first argues that his 1998 conviction cannot serve as a predicate for his removal because he was granted cancellation of removal for that conviction. He next argues that because Cal. Health & Safety Code § 11377(a) punishes the unauthorized possession of numerous substances not controlled under federal law, DHS was required to establish that the particular drug underlying the 2003 conviction is one that is controlled under federal law. He further argues that the 2003 record of conviction is silent as to the drug he was convicted of possessing.

The government does not argue, either in its briefs or during oral argument, that the record establishes unequivocally that the substance that formed the basis for Ruiz-Vidal's 2003 state conviction was controlled under federal law. Instead, the government's sole response on appeal is that this case should be remanded to the BIA so that it has "an opportunity to decide [this] question and any related issues in the first instance."

B

The government must prove by "clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true." Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir.1989) (citing Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966)). In this case, Ruiz-Vidal was charged with removability on the basis of his conviction of a controlled substance offense. 8 U.S.C. § 1227(a)(2)(B)(i).² That section provides:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21 [Section 102 of the CSA]), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

Id.

The plain language of this statute requires the government to prove that the substance underlying an alien's state law conviction for possession is one that is covered by Section 102 of the CSA.³ This requirement has been both explicitly and implicitly acknowledged in numerous decisions of the BIA and this court. In Matter of Paulus, 11 I. & N. Dec. 274, 1965 WL 12279 (B.I.A.1965), the Immigration and Naturalization Service ("INS") sought to remove an alien on the basis of a conviction for violating Cal. Health & Safety Code § 11503. The information charged that Paulus "did offer unlawfully to sell and furnish a narcotic to a person and did then sell and deliver to such person a substance and material in lieu of such narcotic." Id. at 274-75. The deportation proceedings were terminated by a special inquiry officer, who reasoned that "the record being silent as to the narcotic involved in the conviction it is possible that the conviction involved a substance (such as peyote) which is a narcotic under California law but is not defined as a narcotic drug under federal law." Id. at 275. The INS appealed, and the Board dismissed the appeal, agreeing with the special inquiry officer that because the record was silent as to the narcotic involved, it could not be said for immigration purposes that Paulus had been convicted of a law relating to narcotic drugs.⁴ Id. The reasoning of Paulus has been followed by the BIA in other cases as well. See Matter of Mena, 17 I. & N. Dec. 38, 39 (B.I.A.1979) (upholding an order of deportation where the record of conviction revealed "beyond doubt that the `controlled substance' the respondent had in his possession was heroin"); Matter of Hernandez-Ponce, 19 I. & N. Dec. 613, 616, 1988 WL 235444 (B.I.A. 1988) (noting that "[p]hencyclidine is listed as a controlled substance under the Controlled Substances Act").

In Medina v. Ashcroft, 393 F.3d 1063 (9th Cir.2005), we implicitly acknowledged the requirement that the government prove that the underlying substance is controlled by Section 102 of the CSA. At issue in Medina was whether a Nevada conviction for attempting to be under the influence of THC-carboxylic acid rendered an alien removable...