Rodolfo Cardona v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 04 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RODOLFO ADALBERTO CARDONA, No. 09-72416
Petitioner, Agency No. A092-435-967
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2013**
Pasadena, California
Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.
Petitioner Rodolfo Adalberto Cardona appeals the Board of Immigration
Appeals decision dismissing his appeal. The BIA concluded that Cardona was
ineligible for cancellation of removal because he failed to demonstrate that his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conviction of transporting more than 28.5 grams of marijuana in violation of
California Health and Safety Code § 11360(a) was not a conviction of an
aggravated felony. We deny his petition for review.
Applying the modified categorical approach, we conclude that Cardona’s
conviction qualified as an aggravated felony for immigration purposes because it
involved “illicit trafficking in a controlled substance.” 8 U.S.C. § 1101(a)(43)(B);
see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) (“A
state drug offense is an ‘aggravated felony’ for immigration purposes only if it
would be punishable as a felony under federal drug laws, or if it contains a
trafficking element.”). It was Cardona’s burden to demonstrate his eligibility for
cancellation of removal. See Young v. Holder, 697 F.3d 976, 988–90 (9th Cir.
2012) (en banc). Nothing in his record of conviction, however, demonstrated that
the facts on which his conviction necessarily rested did not constitute illicit
trafficking of marijuana. See id. at 989 (“Because the burden of proof rests on the
alien, the alien must establish that he or she was not convicted of such a crime.”);
Aguilar-Turcois v. Holder, 691 F.3d 1025, 1032 (9th Cir. 2012) (“The modified
categorical approach requires that we determine, in light of the facts in the
judicially noticeable documents, . . . what facts the conviction necessarily rested
on . . . .” (internal quotation marks omitted)).
2
To the contrary, Cardona admitted in his plea agreement – a judicially
noticeable document, see id. – that he transported marijuana “not for personal use,”
indicating that the marijuana was for commercial use. See Rendon v. Mukasey, 520
F.3d 967, 975 (9th Cir. 2008) (“The Supreme Court has stated that ‘ordinarily
‘trafficking’ means some sort of commercial dealing.’” (quoting Lopez v.
Gonzalez, 549 U.S. 47, 53 (2006))). Although that fact may not conclusively
demonstrate trafficking, “an inconclusive record . . . is insufficient to satisfy [an]
alien’s burden of proof.” Young, 697 F.3d at 989.
PETITION DENIED.
3