Esquivel-Garcia v. Holder

**CHSC section 11350, cancellation, adjustment, Respondent’s admissions** 

The IJ erred in determining that Petitioner’s conviction under CH&SC §11350 was a conviction for violating a state law relating to a controlled substance rendering him ineligible for cancellation of removal.   First, CHSC § 11350 is categorically overbroad and therefore the modified categorical approach must be used.  Both parties submitted a “Criminal History Transcript” describing petitioner’s 1989 conviction as: “11350 HS-POSSESS NARCOTIC CONTROL SUBSTANCE; – CONVICTED -PROB/JAIL; FELONY; SEN: 036 MONTHS PROBATION, 131 DAYS JAIL.” Even if this document is judicially noticeable under Shepard v. United States, the document fails to identify the controlled substance involved in the petitioner’s conviction, making the record inconclusive as to whether the petitioner’s conviction involved a relevant controlled substance.   The petitioner’s testimony in immigration court that he thought the substance was heroin does not alter the record of conviction.  The government did not meet its burden of going forward to prove that the controlled substance the petitioner possessed was heroin or some other controlled substance under 8 U.S.C. § 1182(a)(2)(A)(i)(II).  However, it did not have the benefit Sandoval-Lua, 499 F.3d 1121, 1129-30 (9th Cir. 2007), and the case must thus be remanded to the BIA for further proceedings consistent with Sandoval-Lua to permit the government to put forth reliable evidence to show that the petitioner was convicted of a disqualifying controlled substance offense. 

As for Petitioner’s application for adjustment of status, the agency did not err in finding Petitioner ineligible. The petitioner  told the IJ “I think [the possessed substance] was heroin.”  He therefore ”admits committing acts which constitute the essential elements of” a violation of state law relating to a controlled substance offense under the federal Controlled Substances Act, rendering him inadmissible and ineligible for adjustment of status.  http://www.ca9.uscourts.gov/datastore/opinions/2010/01/28/07-70640.pdf