Esquivel-Garcia v. Holder ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO ESQUIVEL-GARCIA, 
Petitioner, No. 07-70640
v.
 Agency No.
A029-283-455
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 9, 2009—Pasadena, California
Filed January 28, 2010
Before: David R. Thompson and Barry G. Silverman,
Circuit Judges, and Susan R. Bolton,* District Judge.
Opinion by Judge Thompson
*The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
1739
1742 ESQUIVEL-GARCIA v. HOLDER
COUNSEL
Sylvia Rivera, Los Angeles, California, for the petitioner.
David Schor, Department of Justice, Washington, D.C., for
the respondent.
OPINION
THOMPSON: Senior Circuit Judge:
The petitioner seeks review of the Board of Immigration
Appeals’ (“BIA”) denial of his requests for cancellation of
removal, adjustment of status and voluntary departure. We
grant the petition for review of the denial of the request for
cancellation of removal, and remand that request to the BIA
for further consideration. We deny the petition for review of
the denial of the requests for adjustment of status and for vol-
untary departure. In addition, we deny the petitioner’s ineffec-
tive assistance of counsel claim, as the petitioner can raise this
issue in a motion to reopen.
BACKGROUND
The petitioner, a native and citizen of Mexico, was remov-
able for having entered the United States without inspection
on or about October 1, 1992. He conceded removability and
applied for adjustment of status, cancellation of removal, and,
in the alternative, voluntary departure.
ESQUIVEL-GARCIA v. HOLDER 1743
At a 2004 hearing, an immigration judge (“IJ”) questioned
the petitioner about a 1989 conviction. The record before the
IJ indicated the petitioner had been convicted of possession of
a controlled substance under California Health & Safety Code
§ 11350, but did not identify the substance. Under oath before
the IJ, the petitioner testified:
IJ: . . . [W]hat were you convicted of?
...
Petitioner: Possession of drugs.
IJ: Possession of drugs. What kind of
drugs?
Petitioner: In the house, the house where I
was (indiscernible).
IJ: What kind of drugs?
Petitioner: I think it was heroin.
Thereafter, the IJ pretermitted petitioner’s applications for
cancellation of removal and adjustment of status. According
to the IJ, the petitioner was statutorily ineligible for these
forms of relief because the record and testimony established
that the petitioner had been “convicted of violating a state law
relating to a controlled substance,” a disqualifying offense
under 8 U.S.C. § 1182(a)(2)(A)(i)(II) of the Immigration and
Nationality Act (“INA”). The petitioner was discretionarily
denied voluntary departure. The BIA affirmed in a three-
paragraph order.
The petitioner timely filed, pro se, a petition for review by
this court. We granted a stay of removal and appointed pro
bono counsel, who filed a replacement opening brief.
1744 ESQUIVEL-GARCIA v. HOLDER
DISCUSSION
I. Cancellation of Removal
The petitioner can only be eligible for cancellation of
removal if he “has not been convicted of an offense under
[§ 1182(a)(2)].” 8 U.S.C. § 1229b(b)(1)(C). Section
1182(a)(2) includes, as a disqualifying offense, a violation of
“any [State] law . . . relating to a controlled substance (as
defined [by the federal Controlled Substances Act]). 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). Here, the IJ and BIA determined that
the petitioner’s 1989 conviction under California Health &
Safety Code § 11350 constituted a disqualifying controlled
substance conviction. The petitioner concedes he suffered a
controlled substance conviction, but he challenges the dis-
qualifying nature of that offense.
We review de novo the question whether a conviction
involves a controlled substance offense affecting removabil-
ity. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th
Cir. 2004).
[1] To determine if the petitioner’s California Health &
Safety Code § 11350 conviction constitutes a controlled sub-
stance offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II), we apply
the two-step analysis of Taylor v. United States, 495 U.S. 575,
110 (1990). The Taylor analysis requires us to determine
whether the state statute of conviction is “categorically” a dis-
qualifying controlled substance offense under the INA. Suazo
Perez v. Mukasey, 512 F.3d 1222, 1225 (9th Cir. 2008). To
make this determination, we ask whether the “full range of
conduct” criminalized by the state statute falls within the dis-
qualifying offense. Id.
[2] The petitioner asserts that California Health & Safety
Code § 11350 proscribes more substances than the disqualify-
ing offense. Respondent does not disagree. Thus, we presume
the statute is categorically overbroad and we proceed to the
ESQUIVEL-GARCIA v. HOLDER 1745
second step of Taylor—the modified categorical approach.
See Suazo Perez v. Mukasey, 512 F.3d at 1226.
[3] Under the modified categorical approach, we look
beyond the statute of conviction to consider “a narrow, speci-
fied set of documents that are part of the record of conviction”
to determine whether petitioner was convicted of the disquali-
fying offense. Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.
2004). In conducting this analysis, we are “generally limited
to examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defen-
dant assented.” Shepard v. United States, 544 U.S. 13, 16
(2005).
Here, both parties submitted a “Criminal History Tran-
script” describing petitioner’s 1989 conviction as: “11350
HS-POSSESS NARCOTIC CONTROL SUBSTANCE; -
CONVICTED -PROB/JAIL; FELONY; SEN: 036 MONTHS
PROBATION, 131 DAYS JAIL.” Even if this document is
judicially noticeable under Shepard v. United States, the doc-
ument fails to identify the controlled substance involved in
the petitioner’s conviction. Thus, the record is inconclusive as
to whether the petitioner’s conviction involved a relevant con-
trolled substance.
[4] Under our intervening decision in Sandoval-Lua v.
Gonzales, 499 F.3d 1121, 1129-30 (9th Cir. 2007), an alien
who seeks to prove eligibility for cancellation of removal can
meet his or her initial burden by pointing to an inconclusive
record of conviction. The petitioner did that in this case. The
record of conviction is inconclusive because it does not dis-
close the nature of the controlled substance, and the petition-
er’s testimony that he thought the substance was heroin does
not alter the record of conviction. Under our decision in
Sandoval-Lua, the result of this is that the government has the
burden of going forward to prove that the controlled sub-
stance the petitioner possessed was heroin or some other con-
1746 ESQUIVEL-GARCIA v. HOLDER
trolled substance under 8 U.S.C. § 1182(a)(2)(A)(i)(II). The
government did not do this, because neither it, the IJ nor the
BIA had the benefit of our decision in Sandoval-Lua, which
we now have.
[5] We thus remand to the BIA for further proceedings con-
sistent with Sandoval-Lua to permit the government to put
forth reliable evidence to show that the petitioner was con-
victed of a disqualifying controlled substance offense. See
Cheuk Fung S-Yong v. Holder, 578 F.3d 1169, 1174, 1176
(9th Cir. 2009) (“The government bears the burden of proving
by ‘clear, unequivocal, and convincing evidence that the facts
alleged as grounds for [removability] are true.’ ” (quoting
Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir.
1989))).
II. Adjustment of Status
An alien who is “physically present in the United States,”
but who “entered the United States without inspection,” may
be eligible to apply to the Attorney General for an adjustment
of status. 8 U.S.C. § 1255(i)(1).1 If this relief is granted, the
alien need not leave the country, but rather his or her status
is adjusted to that of a lawful permanent resident. Landin-
Molina, 580 F.3d at 915.
[6] Adjustment of status is a discretionary form of relief.
See 8 U.S.C. § 1255(i)(2) (“[T]he Attorney General may
adjust the status of [an otherwise eligible] alien.” (emphasis
added)). However, an alien can only be eligible for adjust-
ment of status if the alien is “admissible to the United States
1
We note that “[8 U.S.C. § 1255(i)] expired on April 30, 2001, and, at
present, its benefits are available only to those aliens who qualify as hav-
ing been ‘grandfathered’ into the provision.” Landin-Molina v. Holder,
580 F.3d 913, 915 (9th Cir. 2009) (citing 8 C.F.R. § 245.10(b)). The peti-
tioner is grandfathered in because he is the beneficiary of an I-130 petition
filed before April 30, 2001.
ESQUIVEL-GARCIA v. HOLDER 1747
for permanent residence.” 8 U.S.C. § 1255(i)(2)(A) (emphasis
added); but see 8 U.S.C. § 1182(h) (authorizing the Attorney
General to waive certain bases of inadmissibility).
[7] The INA renders inadmissible any alien (1) “convicted
of,” or (2) “who admits having committed,” or (3) “who
admits committing acts which constitute the essential ele-
ments of” a violation of state law relating to a controlled sub-
stance offense under the federal Controlled Substances Act. 8
U.S.C. § 1182(a)(2)(A)(i)(II) (emphasis added). Compare
Romero v. Holder, 568 F.3d 1054, 1057 (9th Cir. 2009)
(requiring a controlled substance conviction to establish ineli-
gibility for cancellation of removal, although related admis-
sions were relevant to moral character).
Thus, under 8 U.S.C. § 1182(a)(2)(A)(i)(II), admissions
made by an alien to the IJ, enforcement officials, and third
parties, apart from any conviction, may be considered to
determine an alien’s admissibility when considering the ques-
tion of adjustment of status. See, e.g., Pazcoguin v. Radcliffe,
292 F.3d 1209, 1218 (9th Cir. 2002) (considering alien’s
admissions to a doctor and immigration officers).
In this case, the petitioner established prima facie eligibility
for an adjustment of status because he is the beneficiary of an
I-130 petition that was filed on or before April 30, 2001. See
8 U.S.C. § 1255(i)(1)(B)(i); Agyeman v. INS, 296 F.3d 871,
879 n.2 (9th Cir. 2002) (“The approved I-130 provides prima
facie evidence that the alien is eligible for adjustment as an
immediate relative of a United States citizen.”). That caused
the burden of production to be shifted to the government. See
Pazcoguin v. Radcliffe, 292 F.3d at 1213. The government
relies on proof of the petitioner’s 1989 guilty plea, his convic-
tion, and his statement to the IJ as to the nature of the sub-
stance he pleaded guilty to possessing.
[8] It is undisputed that the petitioner pleaded guilty to pos-
session of a narcotic controlled substance under California
1748 ESQUIVEL-GARCIA v. HOLDER
law. The petitioner also told the IJ “I think [the possessed sub-
stance] was heroin.” The IJ found that this statement estab-
lished that the controlled substance which the petitioner
pleaded guilty to possessing was in fact heroin. The petitioner
left this factual determination unchallenged. There was thus
sufficient evidence to support the IJ’s finding that the peti-
tioner had possessed a disqualifying controlled substance, and
that precluded adjustment of status. We, therefore, deny the
petition for review of the denial of such relief.
III. Voluntary Departure and Ineffective Assistance of
Counsel
[9] We also deny the petition for review of the denial of the
request for voluntary departure. We lack jurisdiction to
review this discretionary determination. 8 U.S.C. § 1229c(f);
Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056 n.5 (9th
Cir. 2006). We also deny the petition as to any ineffective
assistance of counsel claim, as the petitioner does not dispute
that he can raise this issue before the agency in a motion to
reopen. See Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995).
CONCLUSION
We GRANT the petition for review as to the denial of peti-
tioner’s request for cancellation of removal and REMAND
that question to the BIA for further proceedings consistent
with this opinion. We DENY the petition for review as to the
denial of the requests for adjustment of status and for volun-
tary departure. We also DENY, for lack of jurisdiction, the
petition to review at this time the ineffective assistance of
counsel claim.
GRANTED in part and REMANDED for further proceed-
ings; DENIED in part.
The parties shall bear their own costs for this petition for
review.