Jesus Padilla-Martinez v. Eric Holder, Jr. , 770 F.3d 825 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS PADILLA-MARTINEZ, No. 11-72570
Petitioner,
Agency No.
v. A090-213-873
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 8, 2012—San Francisco, California
Filed October 27, 2014
Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit
Judges, and Kevin T. Duffy, District Judge.*
Opinion by Judge Gould
*
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
2 PADILLA-MARTINEZ V. HOLDER
SUMMARY**
Immigration
The panel denied Jesus Padilla-Martinez’s petition for
review of three decisions by the Board of Immigration
Appeals, and its conclusion that his prior state law drug
offense qualified as an aggravated felony.
The decisions in question involved application of the
modified categorical approach to determine whether Padilla-
Martinez’s conviction of sale of a controlled substance under
California Health and Safety Code § 11378 is an aggravated
felony. The panel held that it had jurisdiction to review the
BIA’s interim decisions remanding issues to the Immigration
Judge, because the final deportation order was contingent
upon them. The panel also held that the BIA’s decisions did
not violate Padilla-Martinez’s substantive or procedural due
process rights, because: (1) the BIA’s first sua sponte remand
to the IJ was proper; (2) on remand, the IJ properly admitted
a facsimile copy of the transcript of the state court felony
change of plea proceeding; and (3) the BIA properly
considered the government's appeal of the IJ’s order granting
Padilla-Martinez’s motion to terminate proceedings.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PADILLA-MARTINEZ V. HOLDER 3
COUNSEL
Kara Hartzler (argued), Florence Immigrant and Refugee
Rights Project, Florence, Arizona, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Richard
M. Evans, Assistant Director, Nancy E. Friedman, Senior
Litigation Counsel, Christina Bechak Parascandola (argued),
Trial Attorney, United States Department of Justice,
Washington, D.C., for Respondent.
OPINION
GOULD, Circuit Judge:
Jesus Padilla-Martinez seeks review of a series of
decisions by the Board of Immigration Appeals (“BIA”)
culminating in the BIA’s conclusion that his prior state-law
drug offense qualified as an aggravated felony under 8 U.S.C.
§§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), making him a
deportable alien. Padilla-Martinez contends that his due-
process rights were violated by the immigration proceedings
that followed his incarceration for a conviction under
California Health and Safety Code § 11378 (possession for
sale of a controlled substance). We must decide whether
Padilla-Martinez’s due-process rights were violated by BIA
decisions that (1) allowed the Government multiple
opportunities to prove Padilla-Martinez’s eligibility for
deportation under the modified categorical approach and
(2) admitted into evidence an uncertified transcript of the
state-court felony change-of-plea proceedings.
4 PADILLA-MARTINEZ V. HOLDER
I
Padilla-Martinez is a native and citizen of Mexico. He
first entered the United States without inspection, but later
became a lawful permanent resident by adjusting his status.
In March 2008, Padilla-Martinez was indicted for possession
for sale of a controlled substance, methamphetamine, in
violation of California Health and Safety Code § 11378. He
pleaded pursuant to People v. West, 3 Cal. 3d 595 (Cal. 1970)
(en banc), which held that a guilty plea to an offense does not
necessarily mean that the defendant admits to the facts
charged in the indictment. He was convicted by the State of
California and served ninety days in prison.
A. First Immigration Judge Decision and Appeal
After his release, the Government initiated deportation
proceedings against Padilla-Martinez, viewing him as
deportable for the aggravated felony of illicit trafficking in a
controlled substance, including a drug trafficking crime,
under 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii).
Padilla-Martinez opposed his removal and moved to
terminate proceedings contending that the plea documents
submitted by the Government did not establish a conviction
involving a controlled substance as defined by federal law.
The Government opposed the motion. Concluding that the
plea documents identified the drug sold as methamphetamine,
the Immigration Judge (“IJ”) ruled in the Government’s
favor.
On the first appeal from the IJ, the BIA reversed after
finding that no admissible documents identified the drug
involved in the state conviction. The plea did not recite a
factual basis, Padilla-Martinez did not plead to the offense
PADILLA-MARTINEZ V. HOLDER 5
“as charged” in the information, and no plea transcript was
submitted. But the BIA remanded for “further proceedings
consistent with the foregoing opinion and entry of a new
decision.”
B. Second Immigration Judge Decision and Appeal
On remand, Padilla-Martinez again moved to terminate
the proceedings. In opposition, the Government submitted a
facsimile copy of the transcript of the state-court felony
change-of-plea proceedings, in which Padilla-Martinez orally
pleaded guilty to the charge of selling methamphetamine.
But the facsimile copy of the transcript was not official and,
at the next scheduled hearing, the Government requested and
received a continuance to gain a certified copy. When the
continuance deadline approached, the Government said that
it still did not have an official, certified copy of the transcript.
The IJ then declined to consider the facsimile copy and issued
a written decision granting Padilla-Martinez’s motion to
terminate on July 7, 2010. The Government filed a motion to
reopen and reconsider and attached a declaration from
Immigration and Customs Enforcement Agent Mick Hill,
which certified that the facsimile copy of the transcript was
a true and accurate copy of the facsimile that he had received
from the custodian of the record. On August 5, 2010, the IJ
denied the motion to reopen because the Government had not
shown why the declaration was previously unavailable.
The Government appealed, asking the BIA to once again
consider Padilla-Martinez’s case—this time on the issue of
whether the facsimile copy of the transcript, without the Hill
declaration, should have been admitted by the IJ. The BIA
found the facsimile copy of the transcript admissible and
again remanded the case.
6 PADILLA-MARTINEZ V. HOLDER
C. Third Immigration Judge Decision and Appeal
Following the BIA directive, the IJ considered the
facsimile copy of the transcript. Because that document
established a guilty plea to selling methamphetamine, she
ordered removal.
Padilla-Martinez again appealed the IJ decision to the
BIA, but the BIA stood by its prior decision holding the
facsimile copy of the transcript admissible. The BIA ordered
that Padilla-Martinez be deported. Padilla-Martinez filed a
timely petition for review in this court.
II
As a general rule, we have no jurisdiction to review a
“final order of removal against an alien who is removable by
reason of having committed a criminal offense,” including a
conviction relating to a controlled substance. 8 U.S.C.
§§ 1252(a)(2)(C), 1227(a)(2)(B). But there are exceptions
and, as pertinent here, we may review “constitutional claims
or questions of law raised upon a petition for review.”
8 U.S.C. § 1252(a)(2)(D). Our jurisdiction, however, is still
limited to final orders of removal or deportation. 8 U.S.C.
§ 1252(a)(1); see Alcala v. Holder, 563 F.3d 1009, 1016 (9th
Cir. 2009) (“[W]here there is no final order of removal, this
court lacks jurisdiction even where a constitutional claim or
question of law is raised”); see also Junming Li v. Holder,
656 F.3d 898, 901 (9th Cir. 2011) (noting that the terms
“order of removal” and “order of deportation” are
interchangeable in this context). We must determine whether
we have jurisdiction to review the interim BIA decisions
remanding issues back to the IJ.
PADILLA-MARTINEZ V. HOLDER 7
“Order of deportation” is defined as the IJ’s formal
determination that an alien is deportable. See 8 U.S.C.
§ 1101(a)(47)(A); see also Noriega-Lopez v. Ashcroft,
335 F.3d 874, 882 (9th Cir. 2003). Such an order becomes
final when the BIA affirms the order or when the time for
appealing it expires. 8 U.S.C. § 1101(a)(47)(B); see Noriega-
Lopez, 335 F.3d at 882–83.
The Government argues that because remand decisions
require additional consideration from the IJ in light of the
BIA’s interim analysis, the decisions do not constitute final
orders of removal, depriving us of jurisdiction.1 Although we
agree with the Government that a BIA decision remanding a
case back to the IJ may not be final when issued, see Junming
Li, 656 F.3d at 902 (characterizing a BIA decision that
remanded to the IJ for the completion of prerequisite
background checks as “not a final order”), precedent indicates
that a decision matures to finality upon entry of a final order
that is contingent upon it. See I.N.S. v. Chadha, 462 U.S. 919,
938 (1983) (recognizing “final orders” to include “all matters
on which the validity of the final order is contingent, rather
than only those determinations actually made at the hearing”
(quoting source omitted)). We hold that we have jurisdiction
1
The Government only contested our jurisdiction over the first BIA
decision remanding to the IJ—likely because the second BIA decision
remanding to the IJ was favorable to the Government. But because we
have an obligation to examine our jurisdiction even when unquestioned by
the parties, see Steel Co. v. Citizens for a Better Environment, 523 U.S.
83, 93–95 (1998), we consider our jurisdiction over both interim BIA
decisions.
8 PADILLA-MARTINEZ V. HOLDER
to review the prior BIA decisions in this case because the
final deportation order is contingent upon them.2
III
We review de novo the BIA’s determination of legal
questions, but we review the BIA’s findings of fact for
substantial evidence and uphold them unless the evidence
compels a contrary result. Hernandez-Mancilla v. Holder,
633 F.3d 1182, 1184 (9th Cir. 2011) (citations omitted). We
review de novo whether a non-citizen has been convicted of
an aggravated drug-trafficking offense that renders him
removable under the Immigration and Nationality Act
(“INA”). Rendon v. Mukasey, 520 F.3d 967, 971 (9th Cir.
2008). We review de novo due-process challenges to final
orders of removal. Young Sun Shin v. Mukasey, 547 F.3d
1019, 1023 (9th Cir. 2008) (citation omitted).
IV
We next assess the merits of Padilla-Martinez’s due-
process claim. Aliens have a Fifth Amendment right to due
process in deportation proceedings, which ensures that they
receive a “full and fair hearing.” See Ren v. Holder, 648 F.3d
1079, 1092 (9th Cir. 2011). An immigration decision violates
2
This holding is consistent with our prior decisions. See Brezilien v.
Holder, 569 F.3d 403, 406 (9th Cir. 2009) (“All of the BIA’s decisions
leading up to its final decision are properly before us in this proceeding.”).
It is also in line with our policy to permit review of decisions that might
otherwise go unchecked. See, e.g., Junming Li, 656 F.3d at 902–05 (citing
Viracacha v. Mukasey, 518 F.3d 511, 513–14 (7th Cir. 2008), and
exercising jurisdiction to review the BIA’s decision denying asylum
notwithstanding the fact that the decision also remanded regarding another
form of relief).
PADILLA-MARTINEZ V. HOLDER 9
due process if the proceeding was “so fundamentally unfair
that the alien was prevented from reasonably presenting his
case.” Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 380 (9th
Cir. 2003) (en banc) (quoting and citing sources omitted). To
prevail on a due-process claim, a petitioner must demonstrate
both a violation of rights and prejudice. See Cinapian v.
Holder, 567 F.3d 1067, 1074–75 (9th Cir. 2009); Campos-
Sanchez v. I.N.S., 164 F.3d 448, 450 (9th Cir. 1999),
superseded by statute on other grounds as stated in Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008) (per
curiam).
Padilla-Martinez asserts that his immigration proceedings
were plagued by violations of his due-process rights,
spanning all three BIA decisions. We examine the alleged
errors chronologically by BIA decision to scrutinize whether
there was fundamental unfairness in how these proceedings
were conducted.
A
Padilla-Martinez contends that the BIA erred in its first
decision by sua sponte remanding his case back to the IJ after
deciding that the plea documents submitted by the
Government did not establish removability. He alleges that
this remand violated his due-process rights by permitting the
Government two bites at the metaphorical apple.
We have previously held that the BIA has the authority to
issue a sua sponte remand. See Rodriguez v. Holder,
683 F.3d 1164, 1170, 1173 (9th Cir. 2012) (“If the BIA
believes that it cannot decide the case without resolution of
these facts, then it must remand to the IJ for further factual
findings.”). And, in our own decisions remanding to the BIA,
10 PADILLA-MARTINEZ V. HOLDER
we have encouraged remand on an open record. See Soto-
Olarte v. Holder, 555 F.3d 1089, 1093–96 (9th Cir. 2009)
(rejecting the “deemed credible” rule in the immigration
context and remanding on an open record to “give the agency
the opportunity to evaluate [the petitioner’s] credibility while
allowing him to explain as-yet-unexplained inconsistencies”).
In expressing this preference, we relied on precedent
premised on the idea that “second bites [at the metaphorical
apple] are routine in litigation.” Id. at 1093–94 (quoting and
citing Castaneda-Castillo v. Gonzales, 488 F.3d 17, 24–25
(1st Cir. 2007)). We accepted that any resultant unfairness to
the parties is outweighed by our interest in allowing prior
decision-makers to cure an error. See id. The same
principles should apply to remands between the BIA and the
IJ. See, e.g., Fernandes v. Holder, 619 F.3d 1069, 1073–74
(9th Cir. 2010) (finding no error in a BIA decision remanding
to an IJ “to allow the DHS an opportunity to establish that
since the time the persecution occurred conditions in the
respondent’s country have changed” and for “further
proceeding consistent with the foregoing opinion.”).
Padilla-Martinez supports his claim that remand is
improper through citation to Saavedra-Figueroa v. Holder,
which illustrated our unwillingness in the circumstances of
that case to remand for the purpose of allowing the
Government to introduce further evidence where “(1) the
current record of conviction does not support a determination
of removability and (2) all relevant documents of conviction
became available before DHS initiated removal proceedings.”
625 F.3d 621, 628 (9th Cir. 2010) (citation omitted). But
Padilla-Martinez’s petition is different because in this case
the BIA’s remand to the IJ was neither requested by the
Government nor granted for the express purpose of allowing
the Government to introduce new evidence. Moreover, the
PADILLA-MARTINEZ V. HOLDER 11
Government did not possess the transcript until after the
initial proceeding and did not believe it needed the transcript
until after reversal of the first IJ decision.
Although the BIA could have both given more clarity on
the purpose of its remand and said that it was remanding on
an open record, we hold that the BIA did not err in its first
decision by remanding the case to the IJ. Fernandes,
619 F.3d at 1074 (noting that if the BIA does not limit its
remand order, the IJ is free to consider any matters deemed
appropriate, including to consider new evidence or motions).
We next address the second BIA decision.
B
Padilla-Martinez contends that the BIA erred in its second
decision by admitting the facsimile copy of the transcript.3
3
Padilla contends that the modified categorical approach applies in
determining whether his state law conviction qualifies as aggravated
felony under federal law. We agree. The modified categorical approach
applies only to divisible statutes. Descamps v. United States, 133 S. Ct.
2276, 2293 (2013). A statute is divisible if it contains “multiple,
alternative elements of functionally separate crimes,” and as to each
alternative element, the jury “must then find that element, unanimously
and beyond a reasonable doubt.” Id. at 2285, 2290. California Health &
Safety Code § 11378 is divisible for several reasons. First, it is written in
the disjunctive by listing five alternative categories of controlled
substances. See Quijada Coronado v. Holder, 747 F.3d 662, 668–69 (9th
Cir. 2014) (concluding that California Health & Safety Code § 11377(a),
a statute substantially similar to § 11378, is divisible). Also, California
state law treats the type of controlled substance as a separate element in
prosecuting relevant drug offenses. See, e.g., 2 Witkin & Epstein, Cal.
Crim. Law (4th ed. 2012) § 102 (“a specified controlled substance” is an
element common to all state drug crimes requiring proof of possession);
CALCRIM 2302 (Judicial Council of California Criminal Jury Instruction
for conviction under § 11378 requires the jury to fill in the blank where
12 PADILLA-MARTINEZ V. HOLDER
He argues that admitting the transcript “effectively h[eld] that
the [G]overnment may submit late evidence [in the form of
the Hill declaration] without good cause.” First, we consider
whether the transcript was admissible without the Hill
declaration. If it was, then any alleged error in the use of the
Hill declaration to authenticate the transcript was harmless.
See Quintanilla-Ticas v. I.N.S., 783 F.2d 955, 957 (9th Cir.
1986) (“[B]ecause the BIA’s analysis was correct, any
misapplication of the standard . . . was harmless error.”
(citation omitted)).
The INA and its corresponding regulations establish
standards relating to evidence used in a removal proceeding
to prove a criminal conviction. See 8 U.S.C. § 1229a(c)(3);
8 C.F.R. § 1003.41. Section 1229a(c)(3)(C) provides as
follows:
(C) Electronic records
In any proceeding under this chapter, any
record of conviction or abstract that has been
submitted by electronic means to the Service
from a State or court shall be admissible as
evidence to prove a criminal conviction if it
is—
the controlled substance is to be identified); People v. Montero, 66 Cal.
Rptr. 3d 668, 671 (Cal. Ct. App. 2007) (adopting the CALCRIM jury
instruction); see also People v. Gerber, 126 Cal. Rptr. 3d 688, 704 (Cal.
Ct. App. 2011) (finding instructional error where jury instructions for
conviction of a California drug crime did not require the jury to identify
the type of controlled substance).
PADILLA-MARTINEZ V. HOLDER 13
(i) certified by a State official associated with
the State’s repository of criminal justice
records as an official record from its
repository or by a court official from the court
in which the conviction was entered as an
official record from its repository, and
(ii) certified in writing by a Service official as
having been received electronically from the
State’s record repository or the court’s record
repository.
A certification under clause (i) may be by
means of a computer-generated signature and
statement of authenticity.
The corresponding regulation uses almost identical language.
See 8 C.F.R. § 1003.41(c).
But failure to “fully comply with the terms of the statute
and regulation” does not render electronic conviction records
inadmissible. Sinotes-Cruz v. Gonzales, 468 F.3d 1190,
1195–96 (9th Cir. 2006) (admitting copies of criminal
convictions that were stamped by an immigration agent and
appeared to be official state-court records even though
certification by a state official was lacking). As we explained
in Sinotes-Cruz, § 1229a(c)(3)(C) instead “establishes the
maximum standard for authentication of electronically
transmitted records of conviction, but it does not establish a
minimum standard.” Id. at 1196. The BIA may therefore
admit evidence under either the requirements of the INA
statute or through “any procedure that comports with
common law rules of evidence.” Id. (quoting Iran v. I.N.S.,
656 F.2d 469, 472 n.8 (9th Cir. 1981) (as amended)).
14 PADILLA-MARTINEZ V. HOLDER
Admissibility is generally warranted so long as there is “some
sort of proof that the document is what it purports to be.” Id.
(citation omitted). This makes good sense in the
administrative-law context.
Here, the BIA found that the unauthenticated document
was “what it purport[ed] to be.” Substantial evidence
supports the BIA’s finding because the facsimile copy of the
transcript appears on its face to be an official reporter’s
transcript from the Superior Court of the State of California:
the front page of the document contains two stamps, one
reading “COPY” and the other reading “FILED May 07 2010
Fresno County Superior Court By _______ Dept. 33 Deputy”;
the top margin of each page contains a transmission date
reflecting that the document was faxed on May 7, 2010; the
last page of the document contains the signed affidavit of the
court reporter who directed the transcription of “said
proceeding”; and Padilla-Martinez’s counsel was
conditionally willing to waive formal certification of the
transcript. Even absent authentication from an immigration
agent, we hold that this evidence on its face has sufficient
indicia of reliability to establish admissibility.
Padilla-Martinez also argues that the BIA erred in
considering the Hill declaration because the Government only
appealed the IJ’s July 7 order terminating immigration
proceedings and did not appeal the IJ’s August 5 order
denying the Government’s motion to reopen on the basis of
the Hill declaration. But because we have held above that the
facsimile copy of the transcript is admissible without the Hill
declaration, the Government did not need to appeal the
motion to reopen. The BIA’s act of construing the
Government’s appeal to encompass both the IJ’s July 7
PADILLA-MARTINEZ V. HOLDER 15
decision and the IJ’s August 5 denial of the motion to reopen
was harmless. See Quintanilla-Ticas, 783 F.2d at 957.
In the notice of appeal, the Government sought BIA
review of the IJ’s July 7 legal determination that the facsimile
copy of the transcript, without the Hill declaration, was
inadmissible. The Government timely filed the relevant
appeal on August 6, 2010. See 8 C.F.R. § 1003.38(b) (noting
that appeals are timely if notice is filed with the BIA within
thirty days of the IJ decision). This issue was properly raised
and exhausted. See Abebe v. Mukasey, 554 F.3d 1203, 1208
(9th Cir. 2009) (en banc); Figueroa v. Mukasey, 543 F.3d
487, 492–93 (9th Cir. 2008). We next address the third BIA
decision.
C
Finally, Padilla-Martinez contends that “the BIA erred in
denying [his] due process claim and finding that he had not
established prejudice.” Padilla-Martinez has not established
a violation of his rights. We have held that the BIA’s initial
remand to the IJ was proper, that the facsimile copy of the
transcript was properly admitted, and that the BIA properly
considered the Government’s appeal of the IJ’s July 7 order
granting Padilla-Martinez’s motion to terminate proceedings.
Because Padilla-Martinez was not deprived of substantive or
procedural due process rights, we need not and do not reach
the issue of prejudice.
PETITION DENIED.