Hernandez v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ROLANDO HERNANDEZ- 
AGUILAR,
No. 06-71945
Petitioner,
v.  Agency No.
A092-703-483
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2009*
Pasadena, California
Filed November 25, 2009
Before: William A. Fletcher and Richard R. Clifton,
Circuit Judges, and Louis H. Pollak,** District Judge.
Opinion by Judge W. Fletcher
* The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
15603
15604 HERNANDEZ-AGUILAR v. HOLDER
COUNSEL
Howard Robert Davis, Santa Monica, California, Juan
Rolando Hernandez-Aguilar, Pro Se, for the petitioner.
HERNANDEZ-AGUILAR v. HOLDER 15605
Bryan Stuart Beier, US DEPARTMENT OF JUSTICE,
Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Juan Rolando Hernandez-Aguilar petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision affirm-
ing the Immigration Judge’s (“IJ”) final order of removal. The
BIA held that Hernandez-Aguilar’s conviction under Califor-
nia Health and Safety Code § 11379(a) qualifies as a basis for
removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), which
makes removable any alien “convicted of a violation of (or a
conspiracy or attempt to violate) any law . . . of a State . . .
relating to a controlled substance (as defined in section 802 of
title 21).” We deny the petition for review.
I. Background
Hernandez-Aguilar is a native and citizen of Mexico. He
was born in Tijuana, Mexico in 1972 and entered the United
States as an infant in 1973. Hernandez-Aguilar was granted
temporary resident status, but that status was revoked in May
of 1997.
Beginning in 1997, the Immigration Naturalization Service1
(“INS”) sought to remove Hernandez-Aguilar, claiming that
his prior conviction under California law makes him remov-
able under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (violation of law
relating to a controlled substance) and 8 U.S.C.
1
On March 1, 2003, the INS ceased to exist and its functions were trans-
ferred to the newly created Department of Homeland Security, pursuant to
the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
Because the relevant agency actions took place before this transfer, we
refer to the INS in this opinion.
15606 HERNANDEZ-AGUILAR v. HOLDER
§ 1182(a)(2)(C) (known or believed controlled substance traf-
ficker).
The INS provided evidence that Hernandez-Aguilar was
previously convicted in California state court for violating
California Health and Safety Code § 11379(a), which states in
relevant part:
[E]very person who transports, imports into this
state, sells, furnishes, administers, or gives away, or
offers to transport, import into this state, sell, fur-
nish, administer, or give away, or attempts to import
into this state or transport any controlled substance
. . . shall be punished by imprisonment in the state
prison for a period of two, three, or four years.
The evidence the government provided to the IJ consisted of
a Felony Complaint and a Minute Order of the Superior Court
for Ventura County. According to the Minute Order,
Hernandez-Aguilar pled guilty on November 3, 1995 to one
of two charged counts. The count to which he pled guilty
charged that:
On or about August 23, 1995 . . . the crime of SALE
OF A CONTROLLED SUBSTANCE, in violation
of HEALTH AND SAFETY CODE SECTION
11379(a), a Felony, was committed by JOHN ROL-
LAND HERNANDEZ, who did willfully and unlaw-
fully transport a controlled substance, to wit,
methamphetamine.
The IJ sustained the charges against Hernandez-Aguilar
and held him removable to Mexico. The IJ rejected
Hernandez-Aguilar’s argument that because § 11379(a)
encompasses solicitation it is over-inclusive with respect to
§ 1182(a)(2)(A)(i)(II), requiring application of the modified
categorical approach. In any event, the IJ concluded that the
Minute Order and the Felony Complaint provide clear and
HERNANDEZ-AGUILAR v. HOLDER 15607
convincing evidence that Hernandez-Aguilar was convicted
for the underlying offense of transporting and selling metham-
phetamine, not solicitation. The IJ concluded that he is there-
fore removable under both § 1182(a)(2)(A)(i)(II) and
§ 1182(a)(2)(C). After finding Hernandez-Aguilar removable,
the IJ granted him voluntary departure.
The BIA rejected Hernandez-Aguilar’s appeal. The BIA
rested its decision entirely on its conclusion “that Cal. Health
& Safety Code § 11379(a) is ‘a law . . . of a State . . . relating
to a controlled substance,’ such that [Hernandez-Aguilar’s]
conviction under it qualifies as a basis for removability under
[§ 1182(a)(2)(A)(i)(II)].” It held that “even were [it] to
assume that [Hernandez-Aguilar] had been convicted of
‘offering’ to sell, transport, etc., a controlled substance, the
crime would nonetheless qualify as a controlled substance
violation.” Relying solely on this conclusion, the BIA found
it unnecessary to address whether Hernandez-Aguilar is
removable under 8 U.S.C. § 1182(a)(2)(C).
Hernandez-Aguilar petitioned for review by this court.
II. Standard of Review
“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). We have jurisdiction under 8
U.S.C. § 1252(a)(2)(D) to review questions of law raised by
the BIA’s final order. Mielewczyk v. Holder, 575 F.3d 992,
994 (9th Cir. 2009).
III. Discussion
“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).” Mielewczyk, 575 F.3d at 994 (internal
quotation marks omitted) (determining whether a conviction
15608 HERNANDEZ-AGUILAR v. HOLDER
constitutes a crime relating to a controlled substance); see
also Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1127 (9th Cir.
2007) (determining whether a conviction under California
Health and Safety Code § 11379(a) constitutes an aggravated
felony).
Taylor prescribes a two-step test. We begin by examining
whether a conviction under California Health and Safety Code
§ 11379(a) categorically qualifies as a crime relating to a con-
trolled substance under 8 U.S.C. § 1182(a)(2)(A)(i)(II). See
Sandoval-Lua, 499 F.3d at 1127. If so, Hernandez-Aguilar’s
conviction under § 11379(a) automatically renders him
removable. See id. The court engages in the second step, the
modified categorical approach, only if a conviction under
§ 11379(a) does not categorically qualify as a crime relating
to a controlled substance under § 1182(a)(2)(A)(i)(II). See
Mielewczyk, 575 F.3d at 995.
[1] Hernandez-Aguilar argues that because § 11379(a) pro-
hibits solicitation, it is over-inclusive with respect to
§ 1182(a)(2)(A)(i)(II), and therefore the BIA erred by finding
that his conviction categorically qualifies him for removal.
The Ninth Circuit recently rejected this argument as it relates
to a parallel statute containing the same relevant language as
the statute at issue in this case. See Mielewczyk, 575 F.3d at
996-99. In Mielewczyk, the petitioner was convicted of offer-
ing to transport heroin in violation of California Health and
Safety Code § 11352(a). Id. at 994. The IJ and BIA held this
conviction to be a removable offense within the definition of
8 U.S.C. § 1227(a)(2)(B)(i). Id. The court affirmed.
[2] Following Mielewczyk, we hold that a conviction under
§ 11379(a) categorically qualifies for removal under
§ 1182(a)(2)(A)(i)(II), so long as the substance involved in
the conviction is a controlled substance, irrespective of
whether the underlying offense was solicitation. Hernandez-
Aguilar does not dispute that the substance involved in his
conviction was methamphetamine, which is a controlled sub-
HERNANDEZ-AGUILAR v. HOLDER 15609
stance. See 21 U.S.C. § 812 scheds. II(c), III(a)(3). Therefore,
his conviction categorically qualifies him for removal.
PETITION DENIED