Mielewczyk v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS MIELEWCZYK, aka Tomasz 
Mielewczyk,
No. 07-74246
Petitioner,
v.  Agency No.
A026-825-982
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 2, 2009—Pasadena, California
Filed August 5, 2009
Before: Harry Pregerson, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
10409
MIELEWCZYK v. HOLDER 10411
COUNSEL
Sarah K. Jezairian, Snell & Wilmer LLP, Tucson, Arizona,
for the petitioner.
Stuart S. Nickum, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
OPINION
WARDLAW, Circuit Judge:
Thomas Mielewczyk petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal from
the immigration judge’s (“IJ”) order of removal. The BIA and
the IJ found Mielewczyk removable due to his prior state con-
viction under California Health and Safety Code section
10412 MIELEWCZYK v. HOLDER
11352(a) for offering to transport heroin. We must decide
whether Mielewczyk’s section 11352(a) conviction is a “vio-
lation of . . . any law or regulation of a State . . . relating to
a controlled substance (as defined in section 802 of Title 21),”
rendering him removable under 8 U.S.C. § 1227(a)(2)(B)(i).
Because the statute of conviction by its own terms is a state
law “relating to a controlled substance,” and Mielewczyk’s
conviction involved heroin, a controlled substance as defined
in 21 U.S.C. § 802(6), we hold that the BIA correctly found
Mielewczyk removable and deny his petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mielewczyk is a native and citizen of Poland who was
admitted to the United States as a refugee on June 13, 1984,
at the age of thirteen. On October 4, 2005, he received a
waiver of criminal grounds for inadmissibility and readjusted
his status to lawful permanent residency.
On July 19, 2006, Mielewczyk was charged by information
with two felony counts under California law. Count one
alleged “possession for sale of a controlled substance, in vio-
lation of Health and Safety Code section 11351, a felony.”
Count two alleged “sale/transportation/offer to sell controlled
substance, in violation of Health and Safety Code section
11352(a), a felony.” Both counts alleged that the crimes
involved “a controlled substance, to wit, Heroin.”
Mielewczyk signed a plea agreement that declared he was
accused of “Possession of Heroin for Sale” and “Transporta-
tion of Heroin.” He pleaded guilty to count two, charging a
violation of California Health and Safety Code section
11352(a), for the offense of “Transportation of Heroin for
Personal Use.” Mielewczyk was sentenced to one hundred
days in county jail and thirty-six months of probation. Later,
at a hearing to correct its prior order, the California Superior
Court issued a nunc pro tunc order, finding that the factual
basis for Mielewczyk’s plea was “ ‘offering’ to transport a
MIELEWCZYK v. HOLDER 10413
controlled substance for the codefendant within the meaning
of 11352 of the Health and Safety Code as a felony.”
The Department of Homeland Security served Mielewczyk
with a Notice to Appear before an IJ for a removal proceed-
ing. The IJ found Mielewczyk removable as charged under 8
U.S.C. § 1227(a)(2)(B)(i), because his section 11352(a) con-
viction for offering to transport heroin was a violation of a
state law relating to a controlled substance. The IJ denied
Mielewczyk’s application for asylum, withholding of
removal, and relief under the Convention Against Torture, as
well as his request for voluntary departure.
The BIA also concluded that Mielewczyk was convicted of
a removable offense, affirmed the IJ’s decision, and dismissed
Mielewczyk’s appeal. Mielewczyk’s timely petition for
review raises the sole issue of whether a conviction under
California Health and Safety Code section 11352(a) for offer-
ing to transport a controlled substance constitutes a removable
offense pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review questions of law when a final order of removal is pred-
icated on a criminal offense. See de Jesus Melendez v. Gon-
zales, 503 F.3d 1019, 1023 (9th Cir. 2007). “Whether a
particular conviction is a [removable] offense is a question of
law we review de novo.” Luu-Le v. INS, 224 F.3d 911, 914
(9th Cir. 2000). Therefore, we review de novo the BIA’s legal
conclusion that a state conviction renders an alien removable
under 8 U.S.C. § 1227(a)(2)(B)(i). See id. Our review is lim-
ited to the grounds relied upon by the BIA. Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam).
10414 MIELEWCZYK v. HOLDER
III. DISCUSSION
A. Categorical Approach
To determine whether a conviction constitutes a predicate
offense for removal purposes, “we use the analytical model
constructed by the Supreme Court in Taylor v. United States,
495 U.S. 575 (1990).” United States v. Rivera-Sanchez, 247
F.3d 905, 907 (9th Cir. 2001) (en banc), superseded on other
grounds by U.S.S.G. § 2L1.2 cmt. n.4 (2002), as recognized
in United States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th
Cir. 2007). We first apply the categorical approach, examin-
ing only the statutory definition of the crime to determine
whether the state statute of conviction renders an alien remov-
able under the statute of removal. Tokatly v. Ashcroft, 371
F.3d 613, 620 (9th Cir. 2004).
[1] Under 8 U.S.C. § 1227(a)(2)(B)(i), an alien is remov-
able if that alien is “convicted of a violation of (or a conspir-
acy or attempt to violate) any law or regulation of a State, the
United States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21).” The opera-
tive statutory phrase, “relating to a controlled substance,”
modifies “law or regulation.” See United States v. Meza-
Corrales, 183 F.3d 1116, 1127 (9th Cir. 1999). The ordinary
meaning of the term “relate” is “to show or establish a logical
or causal connection between.” Webster’s New International
Dictionary 1916 (3d ed. 2002). Thus, we look to the language
of the statute of conviction to determine whether it establishes
a logical or causal connection to a controlled substance as
defined in 21 U.S.C. § 802, section 102 of the Controlled
Substances Act (“CSA”).
California Health and Safety Code section 11352(a) pro-
vides that
every person who transports, imports into this state,
sells, furnishes, administers, or gives away, or offers
MIELEWCZYK v. HOLDER 10415
to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into
this state or transport [certain substances specified
within the California Uniform Controlled Substances
Act] shall be punished by imprisonment in the state
prison for three, four, or five years.
The plain language of the statute establishes a logical connec-
tion between the law and certain controlled substances
because the offense must involve one of the listed controlled
substances. Even offenses that do not require personal contact
with the drug have the requisite connection because “we have
construed the ‘relating to’ language broadly,” to incorporate
laws specifically aimed at controlled substance activity, even
if they do not require the use, possession, transportation, or
sale of controlled substances. Luu-Le, 224 F.3d at 915.
[2] Section 11352(a) does not, however, categorically
establish a logical connection to a controlled substance as
defined in section 102 of the CSA. Section 102 of the CSA
defines “controlled substances” as those substances listed in
the federal schedules of the CSA. 21 U.S.C. § 802(6). In con-
trast, California Health and Safety Code section 11352(a)
punishes activities involving controlled substances specified
in the schedules of the California Uniform Controlled Sub-
stances Act. See Cal. Health & Safety Code § 11352(a). The
California Uniform Controlled Substances Act defines “con-
trolled substance” to include “numerous substances that are
not similarly regulated by the CSA.” Ruiz-Vidal v. Gonzales,
473 F.3d 1072, 1078 (9th Cir. 2007). Because the statutory
definition of the crime in section 11352(a) embraces activity
related to drugs both listed in the CSA and not listed in the
CSA, an alien convicted under this statute is not categorically
removable under 8 U.S.C. § 1227(a)(2)(B)(i).
B. Modified Categorical Approach
We therefore turn to the modified categorical approach to
determine Mielewczyk’s removability under 8 U.S.C.
10416 MIELEWCZYK v. HOLDER
§ 1227(a)(2)(B)(i). See Rivera-Sanchez, 247 F.3d at 908.
Under this approach, we determine whether a conviction con-
stitutes a predicate offense for removal by examining “a nar-
row, specified set of documents that are part of the record of
conviction, including ‘the indictment, the judgment of convic-
tion, jury instructions, a signed guilty plea, or the transcript
from the plea proceedings.’ ” Tokatly, 371 F.3d at 620 (quot-
ing Rivera-Sanchez, 247 F.3d at 908). The government has
the burden to prove that the conviction involved “a substance
that is not only listed under California law, but also contained
in the federal schedules of the CSA.” Ruiz-Vidal, 473 F.3d at
1078.
[3] Here, the charging document and plea agreement in the
administrative record establish that Mielewczyk’s offense
involved heroin, a drug listed in Schedule I of the CSA. See
21 C.F.R. § 1308.11(c)(11) (listing “[h]eroin”). Mielewczyk
argues that the government cannot prove that his conviction
involves a federally controlled substance because the Califor-
nia Superior Court’s nunc pro tunc order, stating that Mielew-
czyk pleaded guilty to “offering to transport a controlled
substance for the codefendant,” does not specify the con-
trolled substance involved. However, the order’s silence as to
the drug of conviction does not limit our ability to examine
other documents in the record of conviction to determine
whether the offense involved a drug covered by the federal
definition of a controlled substance. Because the charging
document and the plea agreement establish that the crime
involved heroin, the government has met its burden to prove
that Mielewczyk’s conviction involved a substance listed in
the federal schedules of the CSA. Therefore, Mielewczyk’s
conviction under California Health and Safety Code section
11352(a) is a “violation of . . . [a] law or regulation of a State
. . . relating to a controlled substance (as defined in section
802 of Title 21).” 8 U.S.C. § 1227(a)(2)(B)(i).
C. Generic Solicitation Convictions
[4] Mielewczyk argues, that under Coronado-Durazo v.
INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS,
MIELEWCZYK v. HOLDER 10417
187 F.3d 1147 (9th Cir. 1999), statutes criminalizing solicita-
tion are not laws relating to controlled substances within the
meaning of 8 U.S.C. § 1227(a)(2)(B)(i). In Coronado-Durazo
and Leyva-Licea, we held that convictions under generic
solicitation statutes do not render an alien removable under 8
U.S.C. § 1227(a)(2)(B)(i), “even when the underlying solic-
ited conduct is a narcotics violation.” Leyva-Licea, 187 F.3d
at 1149; see also Coronado-Durazo, 123 F.3d at 1326. How-
ever, California Health and Safety Code section 11352(a) is
not a generic solicitation statute, unlike the statute at issue in
Coronado-Durazo and Leyva-Licea.
California Health and Safety Code section 11352(a) pun-
ishes any person who “transports, imports into this state, sells,
furnishes, administers, or gives away, or offers to transport,
import into this state, sell, furnish, administer, or give away,
or attempts to import into this state or transport” certain con-
trolled substances. By contrast, Arizona Revised Statute sec-
tion 13-1002, the statute at issue in Coronado-Durazo and
Leyva-Licea, punishes any person who, “with the intent to
promote or facilitate the commission of a felony or misde-
meanor, . . . commands, encourages, requests or solicits
another person to engage in specific conduct which would
constitute the felony or misdemeanor or which would estab-
lish the other’s complicity in its commission.” Mielewczyk
acknowledges the distinction between section 11352 and
generic solicitation statutes. Nonetheless, citing Rivera-
Sanchez and Sandoval-Lua v. Gonzales, 499 F.3d 1121,
1123-24 (9th Cir. 2007), he argues that our case law treats
solicitation statutes specifically aimed at controlled sub-
stances offenses in the same way as generic solicitation stat-
utes for removability purposes.
In Rivera-Sanchez, we held that a conviction under Califor-
nia Health and Safety Code section 11360(a) is not categori-
cally an aggravated felony because section 11360(a) includes
solicitation offenses and solicitation is not an aggravated fel-
ony under 8 U.S.C. § 1101(a)(43)(B). 247 F.3d at 909. Like-
10418 MIELEWCZYK v. HOLDER
wise, in Sandoval-Lua, we held that a conviction under
California Health and Safety Code section 11379(a) is not cat-
egorically an aggravated felony because section 11379(a)
includes solicitation offenses.1 499 F.3d at 1132. These cases
are distinguishable. In each, we did not address whether the
statute of conviction was generic or specifically aimed at con-
trolled substances because we had previously determined that
all solicitation offenses are excluded from the definition of
“aggravated felony” in 8 U.S.C. § 1101(a)(43)(B). See Levya-
Licea, 187 F.3d at 1150. This does not suggest, however, that
generic and specific solicitation statutes are to be treated in
the same way for all immigration purposes. The inapplicabil-
ity of Rivera-Sanchez’s and Sandoval-Lua’s aggravated fel-
ony analyses to 8 U.S.C. § 1227(a)(2)(B)(i) was specifically
recognized in Sandoval-Lua, where the petitioner conceded
removability under 8 U.S.C. § 1227(a)(2)(B)(i), while suc-
cessfully arguing that his section 11379(a) offense was not
categorically an aggravated felony. Thus, the distinction
between a generic solicitation statute or one specifically
aimed at controlled substances is critical when our inquiry is
whether the statute of conviction is a state law relating to con-
trolled substances.
[5] Our holding in Coronado-Durazo, that generic solicita-
tion statutes are not laws relating to controlled substances
within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i), does not
compel us to conclude that any statute that criminalizes solici-
tation in part is beyond the scope of § 1227(a)(2)(B)(i). In
Coronado-Durazo, we held that solicitation under Arizona
Revised Statute section 13-1002 does not constitute a remov-
able offense within the meaning of § 1227(a)(2)(B)(i).2 123
1
California Health and Safety Code sections 11360(a) and 11379(a) are
largely identical to section 11352(a). Section 11352(a) punishes offenses
involving “controlled substances formerly classified as narcotics,” section
11360(a) punishes offenses involving marijuana, and section 11379(a)
punishes offenses involving “controlled substances formerly classified as
restricted dangerous drugs.”
2
The petitioner in Coronado-Durazo was found removable under 8
U.S.C. § 1251(a)(2)(B)(i), see 123 F.3d at 1324, which was recodified as
8 U.S.C. § 1227(a)(2)(B)(i), see Luu-Le, 224 F.3d at 913. For conve-
nience, we refer to this provision by its current citation.
MIELEWCZYK v. HOLDER 10419
F.3d at 1323. Analyzing § 1227(a)(2)(B)(i) as covering two
distinct types of removable offenses, we held that “aliens who
have been convicted of violating laws specifically aimed at
the regulation or prohibition of controlled substances are
[removable], as are aliens who have been convicted of con-
spiracy or attempt to violate such laws.”3 Id. at 1325. The
petitioner’s offense in Coronado-Durazo did not fall under
either category because the statute of conviction was a generic
solicitation statute, and 8 U.S.C. § 1227(a)(2)(B)(i) “limits
convictions for generic crimes that may result in [removal] to
conspiracy and attempt.” Id. Therefore, our statement that
“solicitation is not a [removable] offense under [8 U.S.C.
§ 1227(a)(2)(B)(i)],” id. at 1326, applied only to violations of
generic solicitation laws.
Likewise, Leyva-Licea addresses only generic solicitation
statutes. The petitioner there “was convicted in Arizona Supe-
rior Court for solicitation to possess marijuana for sale in vio-
lation of Ariz. Rev. Stat. §§ 13-1002(A) & 13-
3405(A)(2)(B)(5).” 187 F.3d at 1149. Our reference to section
13-3405, which prohibits the possession of marijuana for sale,
3
Two of our sister circuits do not follow the Coronado-Durazo
approach in analyzing generic solicitation statutes. In Peters v. Ashcroft,
383 F.3d 302, 306 (5th Cir. 2004), the Fifth Circuit concluded that a solic-
itation conviction under Arizona Revised Statute section 13-1002 is
related to a controlled substance when the underlying crime is a controlled
substance offense. It reasoned that the solicitation offense was not separa-
ble from the underlying crime; thus, “there was a sufficient nexus between
his solicitation conviction and drug-related laws to satisfy the federal stat-
ute.” Id. at 309.
In Mizrahi v. Gonzales, 492 F.3d 156, 163 (2d Cir. 2007), the Second
Circuit followed the Fifth Circuit’s approach and held that a conviction for
solicitation of the sale of drugs under New York’s generic criminal solici-
tation statute was a violation of a state law relating to a controlled sub-
stance. The Second Circuit reasoned that the elements of a criminal
solicitation offense are defined by both the generic solicitation statute and
the statute criminalizing the object of the solicitation. Id. at 160. Thus, it
concluded that when a drug offense is solicited, a generic solicitation stat-
ute is a law relating to a controlled substance. Id. at 162.
10420 MIELEWCZYK v. HOLDER
see Ariz. Rev. Stat. § 13-3405(A)(2)(B)(5), indicates the
underlying crime that the petitioner solicited. The statute of
conviction was Arizona Revised Statute section 13-1002(A),
the same generic solicitation statute involved in Coronado-
Durazo. Leyva-Licea, 187 F.3d at 1149.
[6] The characterization of Mielewczyk’s offense as a
solicitation offense4 does not affect our analysis because,
unlike the determination of whether a conviction is categori-
cally an aggravated felony, removability under 8 U.S.C.
§ 1227(a)(2)(B)(i) does not turn on whether the law includes
solicitation offenses. Rather, as explained in Coronado-
Durazo, removability under § 1227(a)(2)(B)(i) turns on
whether the statute of conviction is a law relating to con-
trolled substances. 123 F.3d at 1325. State laws specifically
aimed at controlled substance offenses fall within the scope of
§ 1227(a)(2)(B)(i), and section 11352(a) addresses only con-
duct involving controlled substances. Thus, Mielewczyk’s
argument fails.
D. Uniform Application of Immigration Law
Mielewczyk also argues that the interest in uniform appli-
cation of immigration law compels us to conclude that his
solicitation offense does not fall within § 1227(a)(2)(B)(i),
because similar offenses did not render the petitioners in
Coronado-Durazo and Leyva-Licea removable. We disagree.
Both California and Arizona have enacted criminal laws spe-
cifically aimed at controlled substances that prohibit offers to
transport narcotic drugs. See Cal. Health & Safety Code
§ 11352(a); Ariz. Rev. Stat. § 13-3407(A)(7). Convictions
under either statute would render an alien removable because
both statutes relate to a controlled substance.
4
We have characterized offering to transport, furnish, and sell controlled
substances as solicitation offenses. See Rivera-Sanchez, 247 F.3d at
908-09.
MIELEWCZYK v. HOLDER 10421
[7] Moreover, the underlying crimes in Coronado-Durazo
and Leyva-Licea, punished under California law, would not
render an alien removable. Solicitation to possess cocaine, the
underlying crime in Coronado-Durazo, is punishable under
California Penal Code section 653f, a generic solicitation stat-
ute. See Cal. Penal Code § 653f(d). Solicitation to possess
marijuana, the underlying crime in Leyva-Licea, is not punish-
able under California Penal Code section 653f or the Califor-
nia Uniform Controlled Substances Act. See Cal. Penal Code
§ 653f(d); Cal. Health & Safety Code §§ 11000-11651.
Therefore, convictions for the crimes at issue in Coronado-
Durazo, in Leyva-Licea, and in this case would carry the same
immigration consequences whether committed in Arizona or
California. That different crimes are similarly described as
solicitation offenses does not trigger uniformity concerns
when the state laws recognize a meaningful distinction
between the crimes.
IV. CONCLUSION
[8] California Health and Safety Code section 11352(a) is
a state law relating to a controlled substance. Mielewczyk’s
charging documents and plea agreement indicate that his
offense involved heroin, a federally controlled substance.
Therefore, the IJ and the BIA properly concluded that
Mielewczyk is removable under 8 U.S.C. § 1227(a)(2)(B)(i).
PETITION DENIED.