Ricardo Lopez-Villa v. Merrick Garland ( 2021 )

FILED
UNITED STATES COURT OF APPEALS
APR 29 2021
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICARDO LOPEZ-VILLA, No. 11-73518
Petitioner, Agency No. A045-135-800
v.
ORDER
MERRICK B. GARLAND, Attorney
General,
Respondent.
Before: W. FLETCHER, N.R. SMITH, and R. NELSON, Circuit Judges.
The memorandum disposition filed on September 20, 2019, and reported at
Lopez-Villa v. Barr, 777 F. App’x 897 (9th Cir. 2019), is withdrawn. Because the
court’s disposition is withdrawn, Respondent’s petition for panel rehearing is
moot. A superseding memorandum disposition will be filed concurrently with this
order. Further petitions for rehearing and petitions for rehearing en banc may be
filed.
FILED
NOT FOR PUBLICATION
APR 29 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO LOPEZ-VILLA, No. 11-73518
Petitioner, Agency No. A045-135-800
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 7, 2016
Resubmitted September 20, 2019
Seattle, Washington
Before: W. FLETCHER, N.R. SMITH, and R. NELSON, Circuit Judges.
Ricardo Lopez-Villa petitions for review of the dismissal of the appeal of his
order of removal by the Board of Immigration Appeals (“BIA”). The BIA
affirmed the decision by an Immigration Judge (“IJ”) finding Lopez-Villa
removable based on his conviction for trafficking in cocaine, Idaho Code
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 37-2732B(a)(2)(A), as (1) a controlled substance offense, 8 U.S.C.
§ 1227(a)(2)(B)(i), and (2) an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii).
Lopez-Villa challenges his removal based on his conviction of an aggravated
felony.1
Because Lopez-Villa is a legal permanent resident, the government bears the
burden of proving that he is removable on all charges of removability. See Cheuk
Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010); see also Pereida v.
Wilkinson, 141 S. Ct. 754, 761 (2021). Lopez-Villa argues that Idaho Code
§ 37-2732B(a)(2)(A) is not an aggravated felony because it punishes possession,
which is not punishable as a felony offense. See 21 U.S.C. §§ 841, 844.
Even assuming Idaho Code § 37-2732B(a)(2)(A) is divisible,2 the
government failed to meet its burden of proof. The judgment and amended
judgment are inconclusive as to whether Lopez-Villa was convicted of an
aggravated felony offense. See Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th
Cir. 2014) (“When a court using the modified categorical approach to determine
whether an underlying conviction is a predicate offense relies solely on the link
1
Lopez-Villa conceded removability as having been convicted of a
controlled substance offense.
2
Because it is not necessary to our disposition, we take no position with
regard to whether the statute is divisible or indivisible.
2
between the charging papers and the abstract of judgment, that link must be clear
and convincing.”). Based on the record before us, we are unable to determine
whether Lopez-Villa possessed, manufactured, or delivered a controlled substance.
Accordingly, the BIA erred when it concluded that Lopez-Villa was removable
based on a conviction of an aggravated felony. See Rendon v. Mukasey, 520 F.3d
967, 975 (9th Cir. 2008) (noting that trafficking requires “some sort of commercial
dealing” (citation omitted)).
Although the BIA appeared to review Lopez-Villa’s appeal as an application
for cancellation of removal, Lopez-Villa’s appeal from the IJ was based on
whether he was removable as having been convicted of an aggravated felony. The
BIA concluded that Lopez-Villa was convicted of an aggravated felony, and the
conviction precluded him from obtaining cancellation of removal. However,
Lopez-Villa had not yet applied for cancellation of removal; thus, the issue of
whether Lopez-Villa is eligible for cancellation of removal is not before us. See
Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (holding that we “cannot affirm
the BIA on a ground upon which it did not rely” (citation omitted)). Accordingly,
we remand this matter back to the BIA for further proceedings, including allowing
Lopez-Villa to seek whatever relief from removal may be available to him.
PETITION FOR REVIEW GRANTED, REMANDED.
3