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?
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.
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 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 March 11, 2004. The IJ determined that the convictions involved methamphetamine. Accordingly, the IJ ordered that Ruiz-Vidal be removed to Mexico.
Ruiz-Vidal appealed the decision of the IJ to the Board of Immigration Appeals (“BIA” or “Board”). 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. Ruiz-Vidal filed a timely petition for review to this court.
The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true. [The underlying controlled substance (conviction) under Cal. Health & Safety Code § 11377(a)]
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). 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).
The plain language of the 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.
Thus, in order to prove removability, the court considered whether Ruiz-Vidal’s 2003 conviction may serve as the predicate offense for his removal as an alien convicted of a law relating to a controlled substance? The court quickly answered no because Ruiz-Vidal previously was found removable on the basis of the conviction, but was granted cancellation of removal. 8 U.S.C. § 1229b. Thus, the government may not use the conviction again as a predicate removal offense.
Next, the court looked at the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime?
In undertaking an analysis of the record of conviction, the court “may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002). In reviewing the administrative record in this case, the court looked to the only two documents relating to Ruiz-Vidal’s 2003 conviction. The first, charged Ruiz-Vidal with two crimes: (1) a violation of Cal. Health & Safety Code § 11378 (possession for purpose of sale); and (2) a violation of Cal. Health & Safety Code § 11379(a) (unlawful transportation). In both counts, the charging document lists the controlled substance underlying the conviction as methamphetamine. The other document in the record is an abstract of judgment which states that Ruiz-Vidal pleaded nolo contendere to a single charge of violating Cal. Health & Safety Code § 11377(a). The crime is described as “Possess Controlled Substance.”
The court concluded that there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code § 11377(a) by relying on an analogous case; Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). In Martinez-Perez, only three documents were before the court: (1) an information charging the defendant with second-degree robbery in violation of § 211 of the California Penal Code; (2) a minute order memorializing a probation violation hearing; and (3) an abstract of judgment documenting the defendant’s plea to a violation of § 487(c) of the California Penal Code. Id. at 1028-29. The court held that based upon those documents, it was not possible to determine whether the defendant had pleaded guilty to all elements of a theft offense, as generically defined. The court reasoned that because the defendant had pleaded guilty to an offense different from the one charged in the information, “the information . . . is not the sort of ‘generically limited charging document’ indicating that the plea necessarily rested on the fact identifying the burglary as a generic theft offense.”
Here, similar to Martinez-Perez, Ruiz-Vidal did not plead guilty to an offense that was charged in the information. Here also, the administrative record contains no plea agreement, plea colloquy, or any other document that would reveal the factual basis for Ruiz-Vidal’s 2003 conviction. Applying Martinez-Perez, the court concluded “there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code§ 11377(a).”
Thus, the court was only left only to speculate as to the nature of the substance. Stating that “speculation is not enough, the court, therefore, conclude that DHS has failed to establish unequivocally that the particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a controlled substance as defined in section 102 of the Controlled Substances Act.
Department of Homeland Security failed to establish unequivocally that the particular substance, which Ruiz-Vidal was convicted of possessing in 2003, is a controlled substance as defined in section 102 of the Controlled Substances Act.
Thus, because the judicially noticeable documents in this case fail to support the BIA’s determination that Ruiz-Vidal is removable as an alien convicted of a law related to a controlled substances offense, the court reversed the order of removal.