Order Filed: August 25, 2014
Argued and Submitted, Seattle, Washington August 25, 2014.
[Copyrighted Material Omitted]
For reasons to be set forth in a disposition which will follow in due course, we grant Medina--Lara's petition for review because the government did not meet its burden to show that his California convictions constitute predicate offenses for purposes of removability under 8 U.S.C. § 1227(a)(2). We, therefore, order the United States to release Medina--Lara from custody immediately.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-361-360.
The panel granted Jose Medina-Lara's petition for review of the Board of Immigration Appeals' decision finding him removable for his California state conviction of an aggravated felony, controlled substance offense, and firearm offense.
The panel found that the government conceded that California Health & Safety Code § 11351 is not a categorical controlled substance offense, and that Medina conceded that CHS § 11351's controlled substance element is divisible. The panel accordingly proceeded to apply the modified categorical approach, and held that the government did not carry its burden to establish that Medina's conviction is an aggravated felony or controlled substance offense, because the written, amended complaint and abstract of judgment did not provide clear and convincing evidence that he pled guilty to possessing or purchasing, for sale, cocaine. The panel held that Medina's CHS § 11351 conviction was thus neither an aggravated felony nor a controlled substance offense under the Immigration and Nationality Act.
The panel also held that the BIA erred in finding that the enhancement to Medina's CHS § 11351 conviction for carrying a firearm in violation of California Penal Code § 12022(c) constituted a categorical firearm offense. The panel found that former CPC § 12001(b), which defined " firearm" at the time of Medina's conviction, was overbroad because recent California prosecutions demonstrated a realistic probability that the state could obtain a conviction even if the firearm was an antique. The panel further held that CPC § 12001(b) is indivisible, and that thus the modified categorical approach could not be applied.
The panel also held that although the IJ and BIA did not address Medina's second controlled substance conviction under CHS § 11377, the government was precluded from relitigating the issue of whether Medina was removable for that conviction. The panel granted Medina's petition for review, vacated the removal order, and remanded to the agency with the instruction that it grant Medina's motion to terminate proceedings.
Lori K. Walls, Washington Immigration Defense Group, Seattle, Washington, and Devin Theriot-Orr (argued), Gibbs Houston Pauw, Seattle, Washington, for Petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Brendan P. Hogan (argued), Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: John T. Noonan, Michael Daly Hawkins, and Morgan Christen, Circuit Judges. Opinion by Judge Hawkins.
HAWKINS, Circuit Judge:
Jose Medina-Lara (" Medina" ), a Mexican citizen and lawful permanent resident of the United States, seeks review of a final order of the Board of Immigration Appeals (" Board" ) authorizing his removal to Mexico. The Board held that Medina is removable because his 2005 California drug conviction is both an " aggravated felony" and a " conviction relating to a controlled substance" and because a sentence enhancement appended to that conviction is a " firearm offense," as those terms are defined by the Immigration & Nationality Act (" INA" ), 8 U.S.C. § 1227(a)(2). Because each of these conclusions is erroneous, we grant the petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Immigration authorities admitted Medina as a lawful permanent resident in 2002. In 2005, a California court convicted Medina of violating California Health & Safety Code § 11351 and applied an enhancement for carrying a firearm during that offense in violation of California Penal Code § 12022(c). In 2007, a California court convicted Medina of violating California Health & Safety Code § 11377. All convictions were entered pursuant to plea agreements. We refer to these convictions by their statute number (e.g., the " § 11351 conviction" ). We refer to the § 11351 and the § 11377 convictions collectively as " the drug convictions."
After he completed his sentence for the § 11377 conviction, the Department of Homeland Security (" DHS" ) took Medina into custody and initiated removal proceedings. Although the charging documents in the record are somewhat unclear, it appears that DHS alleged that the drug convictions render Medina removable because each is both an aggravated felony and a conviction relating to a controlled substance under the INA. DHS further alleged the § 12022 conviction renders Medina removable because it is a firearm offense under the INA. Medina denied these allegations and, in the alternative, applied for cancellation of removal.
Proceedings before the agency were protracted. Medina first appeared before an Immigration Judge (" IJ" ) in San Francisco, California, on November 17, 2009.
Medina requested an initial continuance to obtain counsel and later requested additional time to pursue a U-visa. For its part, DHS requested several continuances to supplement the record with documents pertaining to Medina's convictions. This was necessary because the parties and the IJ seemed to agree early on in the proceedings that the drug convictions were not categorically predicate offenses under the INA, thus requiring application of the modified categorical approach as described in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
The first round of IJ proceedings took about six months and involved at least five separate requests by the IJ to have the government supply Shepard -compliant documents which would unambiguously establish the nature of Medina's convictions. At an early hearing, DHS represented that it was seeking additional documents to supplement the record, and the IJ granted a continuance, in part, to allow the government to respond to that request. When, at a hearing six weeks later, the government produced no new documents, the IJ got specific, noting that " there must have been a super[s]eding charging document at some point and we don't have that" in the record. Once again, the IJ requested additional documentation, and later on in the same hearing, it appears DHS's attorney agreed to provide it, saying " [w]e need to get the super[s]eding indictment." The IJ granted another continuance. Two weeks later, the government failed to produce the requested documents and yet again asked for more time. The IJ granted the government's request, saying, " let's . . . see what the government can come up with by way of documents and the more the better."  Two weeks after that, the government did submit " additional documents" ; however, even these appear to have been insufficient, because the IJ requested further Shepard -compliant documents so that ...