Argued and Submitted, Seattle, Washington: February
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A017-929-244.
PETITION DENIED IN PART AND DISMISSED IN PART.
The panel dismissed in part and denied in part Luis Felipe Juarez Alvarado's petition for review of the Board of Immigration Appeals' decision finding him removable because his conviction for attempted possession of a dangerous drug, in violation of Arizona Revised Statute § 13-3407(A)(1), constituted a violation of state law relating to a controlled substance.
The panel dismissed in part for lack of jurisdiction, holding that Alvarado waived before the BIA his argument that Arizona's attempt statute is categorically broader than the federal generic definition. The panel found that, even construed liberally, his pro se brief to the BIA did not raise a general argument about attempt, and that neither the IJ nor the BIA addressed the attempt element of his conviction. The panel also held that Alvarado was not excused from the exhaustion requirement pursuant to 8 U.S.C. § 1252(d)(1), because his argument was not so entirely foreclosed that no remedies were available as of right before the agency.
The panel also denied in part, holding under the modified categorical approach that the government met its burden to prove removability based on attempted possession of methamphetamine, a controlled substance offense. The panel held that although it could not consider the indictment because the count as originally charged was dismissed and Juarez Alvarado pled to a lesser charge in a modified count, it could consider a page in the indictment that described the substance as methamphetamine because the statement was specifically incorporated into Alvarado's plea agreement as the factual basis supporting his guilty plea.
Miguel A. Estrada and Scott P. Martin (argued), Gibson, Dunn & Crutcher LLP, Washington, D.C., for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Officer of Immigration Litigation, Kerry A. Monaco, Trial Attorney, and Jamie M. Dowd (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: Raymond C. Fisher, Ronald M. Gould and Morgan B. Christen, Circuit Judges. Opinion by Judge Fisher.
FISHER, Circuit Judge:
We consider whether the Department of Homeland Security has met its burden of proving that the petitioner, Luis Felipe Juarez Alvarado, is removable from the United States as an alien convicted of a violation of state law relating to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i). Juarez Alvarado pled guilty to attempted possession of a dangerous drug, in violation of Arizona Revised Statute § 13-3407(A)(1). He argues that this conviction does not establish his removability for two independent reasons: first, because Arizona's attempt statute is categorically broader than the federal definition; and second, because the government has not met its burden of establishing under the modified categorical approach that his conviction involved a substance listed in the Controlled Substances Act. We lack jurisdiction to reach the first argument and are not persuaded by the second.
Accordingly, we dismiss in part and deny in part his petition for review.
Born in Mexico in 1968, Juarez Alvarado was admitted into the United States as a legal permanent resident before his first birthday. He was placed into removal proceedings after his 2006 conviction for possession of drug paraphernalia, but an IJ granted his application for cancellation of removal in December 2007.
In April 2009, an Arizona grand jury indicted Juarez Alvarado on three counts of drug-related offenses. Count One, the only count pertinent to this petition, alleged that on April 19, 2009, he had " knowingly possess[ed] a dangerous drug, to-wit: methamphetamine, a class four felony," in violation of Arizona Revised Statute § 13-3407(A)(1).
Three months later, Juarez Alvarado entered a written plea agreement, in which he agreed to plead guilty to " Modified Count One: Attempted possession of a dangerous drugs [sic], a class five felony, . . . committed on the 19th day of April, 2009." In exchange, the agreement provided that " Count One, as originally charged" and " Counts Two and Three" would be dismissed. The factual basis section recited: " Please see the attached description of the statutory elements and factual basis for the offense(s) to which the defendant is pleading guilty. The attachment has been prepared by the defense and signed by the defendant." The plea agreement is marked as pages 5-7.
The record also includes an untitled, undated document, marked as page 8, that was signed by Juarez Alvarado, his attorney and the prosecutor. The document recites the ...