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Young v. Holder (PUB)

September 17, 2012

COR/ag.fel/modified categorical

At issue is whether an invididual who pleads guilty to Sale/Transportation/Offer to Sell cocaine base in violation of CH&SC section 11325(a)) is guilty of an aggravated felony and therefore ineligible for cancellation of removal. CH&SC § 11325(a) is a divisible statute and proscribes conduct that both does and does not qualify as an aggravated felony. The charging document in Young’s record of conviction tracks the statute precisely except for that it uses the conjunctive “and” where the statutory text uses the disjunctive “or.” Young pled guilty to the charge. The Court makes four separate holdings in finding that he is ineligible for cancellation of removal.

Young first claims that he is not deportable because he was not convicted of a controlled substance violation since CH&S § 11325(a) regulates more substances than the federal Controlled Substanes Act does. The Court holds that it does not have jurisdiction over that claim because it was not properly raised before the BIA. The Court notes that this issue was referenced briefly in the midst of an argument in favor a different issue, and finds that is not sufficient notice to the Board.

Young’s next argument is that the BIA erred in finding that he is an aggravated felon. The Court denies the petition under this claim. As a threshold matter, the Court holds that when applying the modified categorical approach, the Court is limited by the evidentiary restrictions articulated in Shepard v. United States and can only review the charging document, the transcript of the plea colloquy, the plea agreement, and other comparable judicial records. The Court notes that the cancellation statute is distinguishable from the statute at issue in Nijhawan v. Holder where the Supreme Court allowed for review of documents beyond those permitted by Shepard.

The Court next finds that under the modified categorical approach, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes conviction under at least one of those theories, but not necessarily all of them. Thus, as in Young’s case, when the record of conviction consists only of a charging document that includes several theories of the crime, at least one of which would not qualify as a predicate conviction, then the record is inconclusive under the modified categorical approach.

Finally, the Court finds that the The REAL ID Act places the burden of demonstrating eligibility of cancellation of removal on the respondent. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the respondent shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. By placing the burden on the respondent to show that prior convictions do not constitute aggravated felonies, the REAL ID Act established that an inconclusive record of conviction does not demonstrate eligibility, notwithstanding the Court’s holdings to the contrary in Sandoval-Lua and Rosas-Castaneda. To the extent that Sandoval-Lua and Rosas-Castaneda allow the respondent to establish eligibility on an inconclusive record, they are hereby overruled.

Alex Kozinski, Chief Judge, Mary M. Schroeder, Betty B. Fletcher, Harry Pregerson, Andrew J. Kleinfeld, Susan P. Graber, Raymond C. Fisher, Richard A. Paez, Richard R. Clifton, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Concurring in part and dissenting in part – Fletcher joined by Schroeder, Pregerson, Fisher, and Paez: As the majority opinion elegantly lays out, it makes no sense to discard the categorical approach or Shepard’s limitation on the documents to be considered in determining whether a lawful permanent resident has been convicted of an aggravated felony. However, I respectfully dissent from the Court’s decision to overrule Sandoval-Lua and Rosas-Castaneda. We should adhere to our prior precendents and hold that Young’s inconclusive record of conviction carried his burden of proof.

Concurring in part and dissenting in part – Ikuta joined by Kleinfield, Clifton and Bea: The Court should hold that the respondent is not limited to Shepard documents in meeting the burden of showing that he or she has not been convicted of an aggravated felony.

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