VAZQUEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-27No. No. 09-72489

Summary · law.co

Holding. The court denied Vazquez's petition for review because he failed to prove he was not convicted of an aggravated felony and therefore remained ineligible for cancellation of removal.

Antonio Vazquez, a Mexican national, sought review of a decision ordering his removal from the United States. An immigration judge found him removable based on a 1998 conviction for unlawfully transporting, selling, or offering to sell cocaine base under California law. The judge also determined that Vazquez was ineligible for cancellation of removal because his conviction constituted an aggravated felony.

Vazquez challenged the judge's conclusion that he was convicted of sale rather than mere solicitation, arguing that the judge improperly relied on a transcript from sentencing proceedings. However, the court explained that even if the judge erred in considering those documents, Vazquez's argument fails under Supreme Court precedent. When a state criminal statute covers multiple offenses—some disqualifying and some not—and the conviction record is unclear about which offense applies, the applicant has not met the burden of proving eligibility for relief. Because Vazquez could not demonstrate he was not convicted of an aggravated felony, his petition could not succeed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a conviction under a divisible California drug statute constitutes an aggravated felony
Proper documents to examine under the modified categorical approach when determining the specific offense of conviction
Burden of proof when a conviction record is ambiguous regarding which category of offense applies

Procedural posture

Vazquez petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's removal order.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Antonio Vazquez, a Mexican citizen, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration judges (“IJ”) order finding him removable and ineligible for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review questions of law de novo, Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014), and deny Vazquezs petition.

1. The IJ properly found that Vazquez was removable under Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II) as an alien who was convicted of an offense relating to a controlled substance. In 1998, Vazquez was convicted of unlawfully transporting, selling, or offering to transport or sell, cocaine base, a controlled substance, in violation of California Health & Safety Code § 11352(a) (“H&S § 11352(a)”).

2. The IJ properly found Vazquez ineligible for cancellation of removal pursuant to INA § 240A(a)(3) because he was convicted of an aggravated felony. “The INA expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense.” Pereida v. Wilkinson, ––– U.S. ––––, 141 S. Ct. 754, 758, 209 L.Ed.2d 47 (2021).

The statute under which Vazquez was convicted, H&S § 11352(a), is divisible between solicitation, which is not an aggravated felony, and sale, which is an aggravated felony. See United States v. Martinez-Lopez, 864 F.3d 1034, 1037 (9th Cir. 2017) (en banc). Vazquez concedes that under the modified categorical approach, the IJ may examine certain documents to determine whether he was convicted of solicitation or sale. Pereida, 141 S. Ct. at 764-65 (citing Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 2256, 195 L.Ed.2d 604 (2016), and Descamps v. United States, 570 U.S. 254, 263, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)). Here, the IJ relied on the transcript of the Probation and Sentence proceedings, during which Vazquezs counsel stated in open court that the nature of Vazquezs offense was a “sale of one rock at a minimal amount, a $20 rock,” to conclude that Vazquez was convicted of actual sale of cocaine, an aggravated felony rendering him ineligible for cancellation of removal.

Vazquez argues that the IJs reliance on the Probation and Sentence proceeding transcript was improper and that, without these documents, his conviction record is inconclusive and, therefore, he should prevail. Even if the IJ erred in relying on these documents, Vazquezs argument is foreclosed by Pereida, 141 S. Ct. at 762-63, in which the Supreme Court held that an inconclusive conviction record is insufficient to meet the applicants burden of proof to show eligibility for cancellation of removal relief. As we recently explained, “when the applicant stands convicted under a divisible state criminal statute that includes some offenses that are disqualifying and others that are not, and the record of conviction is ambiguous concerning which category fits the applicants crime, then the applicant has failed to carry the required burden of proof.” Marinelarena v. Garland, 6 F.4th 975, 977 (9th Cir. 2021) (citing Pereida, 141 S. Ct. at 762-63). Therefore, Vazquez has failed to show that he was not convicted of an aggravated felony.

PETITION FOR REVIEW DENIED.

FOOTNOTES

. Vazquez does not challenge the finding that his conviction involved a controlled substance. Instead, he argues that the conviction does not qualify as an aggravated felony, but this argument is not relevant to his inadmissibly under INA § 212(a)(2)(A)(i)(II).