Sandoval-Lua v. Gonzales, 05-77103.

• Decision Date: 28 August 2007
• Docket Number: No. 05-77103.,05-77103.
• Citation: 499 F.3d 1121
• Parties: Victor Manuel SANDOVAL-LUA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.3d 1121

Victor Manuel SANDOVAL-LUA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-77103.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 20, 2007.

Filed August 28, 2007.

Lamar Peckham, Santa Rosa, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Michael P. Lindemann, Assistant Director, Douglas E. Ginsburg, Senior Litigation Counsel, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A43-369-153.

Before: ALFRED T. GOODWIN, SIDNEY R. THOMAS, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA; Concurrence by Judge THOMAS.

BEA, Circuit Judge:

Victor Manuel Sandoval-Lua ("Lua") petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming a final order of removal, seeking relief from conceded removability. The BIA affirmed the Immigration Judge's ("IJ") decision finding Lua removable on the basis of his conviction for a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i), and denied Lua's application for cancellation of removal. The issue before us is whether Lua has carried his burden to demonstrate eligibility for cancellation of removal. 8 U.S.C. § 1229b(a). More precisely, we consider whether Lua has demonstrated that his prior state conviction under California Health & Safety Code § 11379(a) is not an "aggravated felony" as defined in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(B).

Lua has conceded that his conviction under California Health and Safety Code § 11379(a) renders him removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a controlled substance offense. Although the government initially alleged Lua's conviction under California Health & Safety Code § 11379(a) rendered him removable because it was both a controlled substance offense and an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), the government withdrew the aggravated felony charge as a basis for Lua's removal. Lua is therefore not removable on the basis of having committed an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Because the government withdrew this charge, the government did not bear the burden of establishing by "clear and convincing evidence that [Lua] is deportable" on the basis of having committed an aggravated felony. 8 C.F.R. § 1240.8(a).

Thus, this is a case in which a removable alien is seeking discretionary relief from removal by showing that he is eligible for cancellation of removal under 8 U.S.C. § 1229b(a) because his § 11379(a) conviction did not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Accordingly, we review to determine whether Lua has carried his burden of establishing eligibility. 8 C.F.R. § 1240.8(d).

Applying the principles of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we first conclude that § 11379(a) is categorically broader than the definition of aggravated felony in 8 U.S.C. § 1101(a)(43)(B). We then hold that the judicially noticeable documents in the administrative record satisfy Lua's burden of establishing by a preponderance of the evidence that his earlier conviction did not constitute an aggravated felony. We therefore grant Lua's petition.

I.

Lua is a native and citizen of Mexico who was admitted into the United States in San Diego, California, as a lawful immigrant on March 2, 1992. On May 8, 2002, Lua was convicted in the Superior Court of California for violating Cal. Health & Safety Code § 11379(a),¹ and was sentenced to three years imprisonment. Based on Lua's § 11379(a) conviction, the Immigration and Naturalization Service ("INS") served Lua with a Notice to Appear on November 25, 2003, charging him with removability under both 8 U.S.C. § 1227(a)(2)(B)(i),² as an alien convicted of a controlled substance offense, and 8 U.S.C. § 1227(a)(2)(A)(iii),³ as an alien convicted of an aggravated felony related to the illicit trafficking in a controlled substance. Lua admitted the factual allegation, contained in the Notice to Appear, that he was convicted under Cal. Health & Safety Code § 11379(a), and he conceded that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a controlled substance offense. The INS withdrew the charge under 8 U.S.C. § 1227(a)(2)(A)(iii) that Lua was removable as an alien convicted of an aggravated felony.

At a February 2, 2004, hearing, the IJ found Lua removable as charged but granted him cancellation of removal. 8 U.S.C. § 1229b(a). The IJ held that the Criminal Complaint and the Abstract of Judgment from Lua's controlled substance conviction did not sufficiently demonstrate that Lua's controlled substance offense under § 11379(a) constituted an aggravated felony under immigration laws. In recognizing that § 11379(a) is divisible — such that some activities made criminal by the statute constitute an aggravated felony for purposes of eligibility for cancellation of removal but other activities do not — the IJ stated that Lua's testimony alone in connection with the Criminal Complaint and the Abstract of Judgment was not sufficient to show that his controlled substance conviction also constituted an aggravated felony. Thus, the IJ found Lua eligible for cancellation of removal and granted Lua such cancellation.

The BIA affirmed the IJ's finding that Lua was removable but reversed the IJ's grant of cancellation of removal. The BIA found that Lua's conviction under California Health and Safety Code § 11379(a) constituted an aggravated felony, rendering him ineligible for cancellation of removal, because Lua's conviction qualified as a "drug trafficking crime." Since the BIA found that Lua's conviction for transportation of methamphetamine was punishable under the Controlled Substances Act, and was a "felony" under federal law,⁴ the BIA held that Lua's conviction was a "drug trafficking crime" and therefore was an "aggravated felony." Because an "alien convicted of an aggravated felony is ineligible for cancellation of removal," the BIA sustained the Department of Homeland Security's ("DHS") appeal and ordered Lua removed to Mexico. One BIA Board Member concurred in the decision. The concurring Board Member stated:

The criminal complaint leading to the respondent's "transportation" of methamphetamine conviction charged him with the full range of conduct punished by § 11379(a) of the California Health and Safety Code ... The abstract of judgment does describe the crime as "transportation of meth.," but this description seems to derive simply from the title of § 11379(a) ... [Lua] bears the burden of proof to show statutory eligibility ... [and] must show that he "has not been convicted of any aggravated felony" ... [Lua's] own description of the crime would not suggest that he was simply convicted for solicitation of a crime. I therefore agree that the Immigration Judge erred in granting relief, but I do so because the respondent has not met his burden of proof on the "aggravated felony" issue.

AR 240.

Lua filed a Petition for Review in this court. On March 29, 2005, this court transferred the petition to a U.S. district court with instructions to remand the case to the BIA because its order of removal was inconsistent with Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), overruled by Lolong v. Gonzales, 484 F.3d 1173, 1176-78 (9th Cir.2007) (en banc), in which this court held that the BIA lacked authority to issue removal orders in the first instance. The BIA vacated its prior decision ordering removal of Lua and remanded the case to the IJ "for the entry of a new decision consistent with Molina-Camacho and the prior decision of the Board."

The IJ denied Lua's application for cancellation of removal and ordered Lua removed to Mexico in compliance with the BIA's instruction on remand. Lua appealed this order to the BIA, asserting his eligibility for cancellation of removal on the basis that his conviction of the offense of "transportation of a controlled substance" under California Health & Safety Code § 11379(a) is not a conviction of an aggravated felony.

On November 17, 2005, the BIA dismissed Lua's appeal, holding that Lua failed to demonstrate he had not been convicted of an aggravated felony. The BIA stated:

The respondent, however, has not offered conviction record evidence to establish that the offense for which he was convicted is not an aggravated felony. In addition, his own description of the crime would not suggest that he was simply convicted for solicitation of a crime. Therefore, inasmuch as the respondent has not met his burden of proving that he was not convicted of an aggravated felony, he has not established that he is eligible for cancellation of removal.

On December 14, 2005, Lua timely filed a petition for review in this court.

II.

We review de novo questions concerning our jurisdiction. See Andersen v. United States, 298 F.3d 804, 807 n. 2 (9th Cir.2002). "Legal determinations regarding an alien's eligibility for cancellation of removal are reviewed de novo." Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.2006). Our review is limited to the BIA's decision. See id. ("When the BIA conducts an independent review of the IJ's findings we review the BIA's decision and not that of the IJ.").

III.

Before considering the merits of this case, we must determine whether we have jurisdiction over Lua's petition. The government contends that Lua's appeal must be dismissed for lack of jurisdiction because the only issue is evidentiary, namely whether Lua proffered sufficient evidence to demonstrate by a preponderance of the evidence that he was not convicted of an aggravated felony.

The INA circumscribes our jurisdiction to review removal orders in 8 U.S.C. § 1252(a)(2)(C): "no court shall have jurisdiction to review any final order of...