Ricardo Lopez-Villa v. William Barr

FILED
NOT FOR PUBLICATION
SEP 20 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO LOPEZ-VILLA, No. 11-73518
Petitioner, Agency No. A045-135-800
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued October 7, 2016
Submitted September 20, 2019
Seattle, Washington
Before: W. FLETCHER, FISHER, and N.R. SMITH, Circuit Judges.
Ricardo Lopez-Villa petitions for review of the dismissal of the appeal of his
order of removal by the Board of Immigration Appeals (“BIA”). The BIA
affirmed the decision by an Immigration Judge finding Lopez-Villa (1) removable
based on his conviction for trafficking in cocaine, Idaho Code
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 37-2732B(a)(2)(A), and (2) ineligible for cancellation of removal, because the
conviction was a drug-trafficking aggravated felony.1
We deferred submission in the case pending this court’s en banc decision in
Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019). Following Marinelarena,
we conclude that the judicially noticeable documents in the record are inconclusive
and cannot serve as evidence of an aggravated felony.2 See 8 U.S.C.
§ 1101(a)(43)(B) (defining aggravated felony to include “illicit trafficking in a
controlled substance”). Specifically, assuming without deciding that section
37-2732B is divisible, the judgment and amended judgment are inconclusive as to
whether Lopez-Villa was convicted of possessing, manufacturing, or delivering a
controlled substance. Accordingly, the BIA erred when it concluded that Lopez-
Villa was convicted of an aggravated felony. See Rendon v. Mukasey, 520 F.3d
1On appeal, Lopez-Villa does not challenge the finding that his conviction
was a removable offense.
2
Although the BIA did not err in concluding there were clerical errors in the
judgment and amended judgment, see Chowdhury v. INS, 249 F.3d 970, 973 n.2
(9th Cir. 2001), it did err in relying on the indictment because neither the judgment
nor the amended judgment were properly linked to the indictment. See
Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014). Thus, the judicially
noticeable documents before the BIA were inconclusive as to whether Lopez-Villa
pleaded guilty to the elements necessary to establish the conviction was a predicate
offense. Id.2
967, 975 (9th Cir. 2008) (noting that trafficking requires “some sort of commercial
dealing” (citation omitted)).
Because there is insufficient evidence that Lopez-Villa was convicted of an
aggravated felony, he is statutorily eligible for cancellation of removal.3 See 8
U.S.C. § 1229b(a)(3). We therefore remand this case to the BIA to determine
whether Lopez-Villa should, as a matter of discretion, receive cancellation of
removal relief.
PETITION FOR REVIEW GRANTED, REMANDED.
3
Because Lopez-Villa was a lawful permanent resident since 1995, we
presume that he met the other criteria necessary to be eligible for cancellation of
removal.
3