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Lopez-Jacuinde v. Holder

April 12, 2010

VENTURA LOPEZ-JACUINDE, A.K.A. VENTURA JACUINDE LOPEZ, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A041-118-057.

The opinion of the court was delivered by: B. Fletcher, Circuit Judge

FOR PUBLICATION

Submitted March 12, 2010*fn1 -- San Francisco, California

Before: Betty B. Fletcher, Richard R. Clifton, and Carlos T. Bea, Circuit Judges.

OPINION

Petitioner Ventura Lopez-Jacuinde seeks review of a decision by the Board of Immigration Appeals ("BIA") that held that his state felony conviction for possession of pseudoephedrine with intent to manufacture methamphetamine was a "drug trafficking crime" which constitutes an "aggravated felony" under federal law, rendering him statutorily ineligible for cancellation of removal. Lopez-Jacuinde argues that "drug trafficking crime," as defined by the relevant federal statute, requires the use of a firearm and thus the state criminal statute, which has no such element, is broader than the federal statute. He argues further that the state criminal statute is broader than the corresponding federal crime because the federal crime imposes a requirement, not found in the state statute, as to the minimum amount of pseudoephedrine possessed by the defendant. We disagree and deny the petition for review.

I. Facts and Procedural History

On February 10, 2005, Lopez-Jacuinde, a citizen of Mexico, was convicted of the offense of possession of pseudoephedrine with intent to manufacture methamphetamine or any of its analogs in violation of California Health and Safety Code § 11383(c)(1).*fn2 He was served with a notice to appear for removal proceedings that alleged he had committed an aggravated felony.*fn3 He filed an application for cancellation of removal and a motion to strike the aggravated felony charge. The Immigration Judge ("IJ") denied Lopez-Jacuinde's motion to strike and ordered him removed from the United States. The BIA dismissed Lopez-Jacuinde's petition for review and agreed with the IJ that Lopez-Jacuinde had been convicted of an aggravated felony. The BIA held that a "drug trafficking crime" does not require the use of a firearm, and that because Lopez-Jacuinde was convicted of possession of pseudoephedrine with intent to manufacture methamphetamine, any federal requirement as to the amount of pseudoephedrine possessed was inapplicable.

II. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252 to review final removal orders issued by the BIA. However, we lack jurisdiction to review an order of removal against an alien removable for having committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir. 2004). "Nonetheless, this Court retains jurisdiction to determine its jurisdiction, which includes determining whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions." Cazarez-Gutierrez, 382 F.3d at 909. We may thus review whether Lopez-Jacuinde's conviction constituted an aggravated felony. This court reviews de novo the question of whether a particular offense constitutes an aggravated felony for which an alien is subject to removal. Id.

III. Discussion

[1] We determine whether a state law conviction is an aggravated felony using either the categorical or modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02 (1990) and Shepard v. United States, 544 U.S. 13, 20-21 (2005). Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012 (9th Cir. 2009). "Under the categorical approach, we compare the elements of the statute of conviction with a federal definition of the crime to determine whether the conduct proscribed by the statute is broader than the generic federal definition." Id. (quotation marks omitted).

A. Use of a Firearm Is Not Required for a State Conviction to Constitute an Aggravated Felony as a "Drug Trafficking Crime"

[2] An "aggravated felony" includes "illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)." 8 U.S.C. ยง 1101(a)(43)(B). The Ninth Circuit has interpreted this text as providing two ...


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