Young v. Holder

Decision Date17 September 2012
Docket NumberNo. 07–70949.,07–70949.
Citation697 F.3d 976
PartiesJoseph Cristopher YOUNG, aka Joseph Christopher Young, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Katherine Mayer Mangan, Mayer Mangan, APLC, San Diego, CA; Robert W. Perrin, Latham & Watkins LLP, Los Angeles, CA, for the petitioner.

Bryan S. Beier, Senior Litigation Counsel, United States Department of Justice, Washington, D.C., for the respondent.

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the amici curiae.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A035–029–889.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, BETTY B. FLETCHER, HARRY PREGERSON, ANDREW J. KLEINFELD, SUSAN P. GRABER, RAYMOND C. FISHER, RICHARD A. PAEZ, RICHARD R. CLIFTON, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge B. FLETCHER. Partial Concurrence and Partial Dissent by Judge IKUTA.

OPINION

GRABER, Circuit Judge:

Petitioner Joseph Young petitions for review of the Board of Immigration Appeals' (“BIA”) decision affirming a final order of removability. The BIA held that Petitioner is ineligible for cancellation of removal because he has been convicted of an aggravated felony. With a differently configured majority concurring as to each of the following issues, we hold:

(1) Petitioner failed to exhaust the claim that his conviction was not for a violation of a law relating to a controlled substance within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i). We therefore lack jurisdiction over that claim.

(2) The evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. § 1229b.

(3) Under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant's conviction. In other words, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes a conviction under at least one, but not necessarily all, of those theories. In so deciding, we reconcile our inconsistent precedents on this issue by adopting one line of cases—including Malta–Espinoza v. Gonzales, 478 F.3d 1080, 1082 n. 3 (9th Cir.2007)—and rejecting the other, including United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.2008) (en banc) (per curiam).

(4) An alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony. We overrule Sandoval–Lua v. Gonzales, 499 F.3d 1121, 1130–31 (9th Cir.2007), and Rosas–Castaneda v. Holder, 655 F.3d 875, 883–84 (9th Cir.2011), to the extent that they conflict with this holding.

Applying those four holdings to the facts of this case, as we will explain below, we dismiss the petition in part and deny it in part.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Joseph Young is a native and citizen of St. Kitts and Nevis. He became a lawful permanent resident of the United States in 1977.

In February of 2005, Petitioner pleaded guilty to “Sale/Transportation/Offer to Sell” cocaine base in violation of California Health & Safety Code section 11352(a).1 He received a sentence of three years' imprisonment.

Soon thereafter, the government issued a Notice to Appear, charging Petitioner with removability both as an alien convicted of an offense relating to a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i),2 and as an alien convicted of an aggravated felony related to illicit trafficking in a controlled substance, id. § 1227(a)(2)(A)(iii).3

At the immigration hearing, the government produced a copy of the electronic court docket in California Case No. BA270389 and a felony complaint and information in the same case. Count 1 of the information charged:

On or about August 26, 2004, in the County of Los Angeles, the crime of SALE/TRANSPORTATION/OFFER TO SELL CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11352(a), a Felony, was committed by JOSEPH CHRISTOPH [sic] YOUNG, who did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, COCAINE BASE.

Thus, the information tracked the wording of section 11352(a) in its entirety, except that the charge used the conjunctive “and,” whereas the statutory text uses the disjunctive “or.” The court records show that Petitioner pleaded guilty to Count 1. At the immigration hearing, he also admitted the factual allegations in the Notice to Appear.

Following the hearing, the immigration judge (“IJ”) held that Petitioner was removable on both grounds charged in the Notice to Appear. With respect to the aggravated felony ground, the IJ ruled that Petitioner's guilty plea to Count 1 of the information constituted a plea “to each and every allegation,” including the sale of cocaine, because Count 1 had been charged in the conjunctive. Accordingly, the IJ held that Petitioner was ineligible for cancellation of removal and ordered him removed.

The BIA affirmed in a reasoned opinion. Noting that Petitioner had failed to challenge the IJ's holding that he was removable for a controlled substance conviction, the BIA upheld his removal on that ground. The BIA did not address whether Petitioner was also removable for an aggravated felony conviction.

Next, the BIA held that Petitioner was ineligible for cancellation of removal. Citing 8 U.S.C. § 1229a(c)(4) and 8 C.F.R. § 1240.8(d), the BIA observed that Petitioner had the burden of establishing his eligibility for cancellation, which thus required Petitioner to show that he had not been convicted of an aggravated felony. The BIA agreed with the IJ that, under Ninth Circuit precedent, the guilty plea to the conjunctively phrased Count 1 established every factual allegation contained therein. Analyzing the record before it, the BIA found no evidence that Petitioner had not been convicted of an aggravated felony.

Petitioner timely filed a petition for review. He makes two main arguments. First, he argues that the BIA erred in finding him removable for having been convicted of an offense relating to a controlled substance. Second, he challenges the BIA's ruling that he is ineligible for cancellation of removal because he was convicted of an aggravated felony.

STANDARDS OF REVIEW

Where, as here, the BIA conducts its own review of the evidence and law, “our review is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted.” Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir.2011) (internal quotation marks omitted). We review de novo all questions of law, including whether a particular conviction qualifies as an aggravated felony. Id.;Carlos–Blaza v. Holder, 611 F.3d 583, 587 (9th Cir.2010). We review factual findings for substantial evidence. Antonyan, 642 F.3d at 1254. The BIA's factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

DISCUSSION
A. We lack jurisdiction over the claim that Petitioner was not convicted of a controlled substance offense.

Petitioner first contends that his conviction was not for a controlled substance offense. Specifically, he argues that California Health & Safety Code section 11352(a) regulates more substances than the federal Controlled Substances Act does. We must dismiss this claim.

We lack jurisdiction to consider the merits of a legal claim not presented to the BIA. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Presenting an argument to the BIA requires reasoning sufficient to put the BIA on notice that it was called on to decide the issue. Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004) (per curiam). A general challenge to the IJ's decision is insufficient; the alien must specify particular issues on appeal to the BIA. Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004).

Under those standards, Petitioner failed to alert the BIA to this issue. Although he points to certain statements in his brief to the BIA, those statements pertained only to his removability as an aggravated felon. Indeed, the sentences on which he relies are in the middle of a section titled “THE IMMIGRATION JUDGE ERRED IN FINDING THAT [PETITIONER] WAS CONVICTED OF AN AGGRAVATED FELONY.” Taken as a whole and fairly read in context, neither the notice of appeal nor the brief to the BIA informed the BIA of a challenge to the controlled substance ground of removability. Therefore, we dismiss this unexhausted challenge.4

B. The record of conviction is inconclusive as to whether the conviction was for an aggravated felony; thus, Petitioner has not carried the burden of establishing his eligibility for cancellation of removal.

Petitioner next argues that the BIA erred in finding him to be an aggravated felon and thus ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3). We deny the petition for review on this claim.

1. Shepard limits the documents that we may consider.

In both criminal and immigration contexts, we often must inquire whether an individual's prior state conviction constitutes a conviction for a generic federal crime. See, e.g., Gonzales v. Duenas–Alvarez, 549 U.S. 183, 185–86, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (applying, in the immigration context, the approach set forth in ...

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