Young v. Eric H. Holder Jr.

• Decision Date: 28 January 2011
• Docket Number: No. 07–70949.,07–70949.
• Citation: 634 F.3d 1014
• Parties: Joseph Cristopher YOUNG, aka Joseph Christopher Young, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

634 F.3d 1014

11 Cal. Daily Op. Serv. 1304

2011 Daily Journal D.A.R. 1665

Joseph Cristopher YOUNG, aka Joseph Christopher Young, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07–70949.

United States Court of Appeals, Ninth Circuit.

Argued Sept. 8, 2008.Submitted Jan. 28, 2011.Filed Jan. 28, 2011.

Katherine Mayer and Natalie Prescott, Latham & Watkins LLP, San Diego, CA, for the petitioner.David B. Bernal, Ernesto Horacio Molina, Jr., and Siu P. Wong, Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A035–029–889.

Before: BETTY B. FLETCHER, ANDREW J. KLEINFELD, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

B. FLETCHER, Circuit Judge:

Joseph Christopher ¹ Young petitions for review of the Board of Immigration Appeals' (“BIA”) decision affirming a final order of removability. The BIA affirmed the Immigration Judge's (“IJ”) decision finding Young removable because of his conviction for an offense relating to a controlled substance pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and denying Young's application for cancellation of removal. The BIA held that Young was ineligible for cancellation of removal because he failed to prove that his 2005 conviction for violating California Health & Safety Code § 11352(a) was not an “aggravated felony” as defined by the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B).

We deny Young's petition for review of the order of removal because he failed to exhaust his claim that his conviction was not for a violation of a law relating to a controlled substance. We grant Young's petition for review, however, with respect to his eligibility for cancellation of removal because the judicially noticeable documents in the record fail to establish that his conviction was necessarily for an aggravated felony.

I. BACKGROUND

Young, a native of St. Kitts and Nevis, is a British citizen. He was admitted into the United States as a lawful permanent resident in 1977.

In 2001, Young pled no contest in the Superior Court of California to one count of violating Cal. Health & Safety Code § 11352(a).² In 2004, Young was charged again with violating Cal. Health & Safety Code § 11352(a). He pled guilty on February 8, 2005, and was sentenced to 3 years in prison. On March 31, 2006, the Department of Homeland Security (“DHS”) served Young with a Notice to Appear because of the 2005 conviction. The Notice to Appear charged Young with removability both as an alien convicted of an offense relating to a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i),³ and as an alien convicted of an aggravated felony related to illicit trafficking of a controlled substance, 8 U.S.C. § 1227(a)(2)(A)(iii). ⁴

Young appeared pro se at a hearing before an immigration judge (“IJ”) on April 26, 2006. He admitted the factual allegation in the Notice to Appear that he had been convicted under Cal. Health & Safety Code § 11352(a), but he did not concede removability. He also applied for cancellation of removal.

The hearing was continued to September 5, 2006. Again, Young appeared pro se. The government produced Young's state-conviction record. After hearing argument, the IJ held Young removable and denied his application for cancellation of removal. The IJ first held that Young was subject to removal as an alien convicted of an offense relating to a controlled substance based on his 2005 conviction.⁵ The IJ then turned to Young's application for cancellation of removal. He held that although the statute was overbroad, the record of conviction established that Young committed an aggravated felony. He noted that the information in Young's conviction recited the conduct prohibited by Cal. Health & Safety Code § 11352 in the conjunctive, and therefore that Young necessarily pled guilty to doing every act listed in the statute, including selling cocaine. The IJ held that because sale of cocaine is conduct which constitutes illicit trafficking of a controlled substance, Young was convicted of an aggravated felony which rendered him both removable and statutorily ineligible for cancellation for removal.

Young filed a pro se Notice of Appeal and a pro se brief with the BIA. In both, he challenged the IJ's finding that the 2005 conviction constituted an aggravated felony. In November 2006, Young obtained pro bono counsel through the BIA Pro Bono Appeal Project. Pro bono counsel filed a new brief arguing that charging papers are not sufficient to establish an aggravated felony and that a plea of guilty to an overly-inclusive statute stated in the conjunctive cannot establish an aggravated felony.⁶ Although DHS filed a motion for summary affirmance, it did not file a brief responding to Young's arguments.

The BIA dismissed Young's appeal. The BIA first held that Young failed to challenge the IJ's decision that he was removable based on violating a law relating to a controlled substance. Because Young was removable on that ground, the BIA declined to rule on whether he was also removable for being convicted of an aggravated felony.

The BIA then upheld the IJ's finding that Young was ineligible for cancellation of removal. Relying on United States v. Almazan–Becerra, 456 F.3d 949, 953 (9th Cir.2006), withdrawn and superseded on other grounds by United States v. Almazan–Becerra, 482 F.3d 1085 (9th Cir.2007), the BIA stated that when an individual pleads guilty to facts stated in the conjunctive, each factual allegation is taken as true. As a result, the BIA held that Young's guilty plea necessarily admitted that he had committed acts that constituted drug trafficking because the information stated all of the acts prohibited by the statute in the conjunctive and Young presented no evidence showing that he did not plead guilty to every allegation in the information. Young therefore failed to satisfy his burden to establish that he had not been convicted of an aggravated felony. See 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 1240.8(d).

Young filed a timely petition for review in this court.

II. DISCUSSION

To the extent we have jurisdiction, it is granted by 8 U.S.C. § 1252. Because the BIA conducted its own review of the evidence and law, our “review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (internal quotation marks omitted).

A. Removability Based on a Violation of a Law Relating to a Controlled Substance

Young contends that the BIA erred in holding him removable based on a violation of a law relating to a controlled substance. Relying on Ruiz–Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir.2007), he argues that the documents in his record of conviction do not unequivocally establish that his 2005 conviction under Cal. Health & Safety Code § 11352(a) involved a substance regulated by the federal Controlled Substance Act.

We may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). A petitioner's failure to raise an issue to the BIA generally constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider the issue. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004). Young “cannot satisfy the exhaustion requirement by making a general challenge to the IJ's decision, but, rather, must specify which issues form the basis of the appeal.” Morales–Alegria v. Gonzales, 449 F.3d 1051, 1058 (9th Cir.2006) (quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004)).

Even construing Young's pro se filings liberally, as we must,⁷ we cannot find that Young raised this specific claim before the BIA. Nowhere in his Notice of Appeal, his pro se brief, or the brief filed by pro bono counsel does Young question the IJ's finding that he was convicted for a violation of a law relating to a controlled substance. We therefore do not have jurisdiction to review the removal order. See Morales–Alegria, 449 F.3d at 1058–59.

B. Eligibility for Cancellation of Removal

Young challenges the BIA's finding that his 2005 conviction for violating Cal. Health & Safety Code § 11352(a) was an aggravated felony disqualifying him from cancellation of removal. The conduct prohibited by Cal. Health & Safety Code § 11352(a) is stated in the disjunctive. Id. (“[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away ... any controlled substance....”). He argues that because the information in his criminal case merely restated the overly-broad statute in the conjunctive, his guilty plea does not establish that he necessarily committed a drug trafficking offense that would constitute an aggravated felony.

We have jurisdiction to review questions of law presented in petitions for review of final orders of removal, even those pertaining to otherwise discretionary determinations, pursuant to 8 U.S.C. § 1252(a)(2)(D). Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006). “Whether the judicially noticeable documents in the administrative record establish that [a] controlled substance offense is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) is a question of law.” Sandoval–Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir.2007). We therefore have jurisdiction to review whether the BIA erred when it held that Young's 2005 conviction was for an aggravated felony. We review the BIA's legal determinations regarding Young's eligibility for cancellation of removal de novo. Sinotes–Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.2006).

In order to qualify for cancellation of removal under 8 U.S.C. § 1229b(a), a lawful permanent resident must show that he: “(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status,...