Barron v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2025
• Docket: 23-2400
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAIME UGALDE BARRON, No. 23-2400 Agency No. Petitioner, A091-867-989 v. MEMORANDUM*

PAMELA J. BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 3, 2025 Pasadena, California

Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges. Dissent by Judge CALLAHAN.

Jaime Ugalde Barron (“Ugalde”), a native and citizen of Mexico, petitions

for review of a final order of removal issued by an Immigration Judge (“IJ”). We

have jurisdiction under 8 U.S.C. § 1252. We grant Ugalde’s petition for review

and remand his case to the agency for further proceedings.

On August 31, 2023, the U.S. Department of Homeland Security issued a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Notice of Intent to Issue a Final Administrative Removal Order (“NOI”) charging

Ugalde with removability as a noncitizen convicted of an aggravated felony based

on his 1998 conviction for possession of a controlled substance for sale in violation

of Cal. Health & Safety Code § 11378, see 8 U.S.C. §§ 1101(a)(43)(B),

1227(a)(2)(A)(iii), and initiating expedited removal proceedings pursuant to 8

U.S.C. § 1228(b). That same day, the agency served him with a Final

Administrative Removal Order (“FARO”). Following a negative reasonable fear

determination, an IJ issued a final order of removal on September 22, 2023.

Ugalde contends that issuing the FARO on the same day as the NOI

deprived him of his due process right to challenge whether his conviction under

Cal. Health & Safety Code § 11378 was in fact an aggravated felony making him

removable. The Government concedes that there was a regulatory violation

because 8 C.F.R. § 238.1(c)(1) affords noncitizens in expedited removal

proceedings ten days to respond to the NOI, but contends that Ugalde was not

prejudiced by it. We disagree.

To demonstrate prejudice, Ugalde need only establish that “the violation

potentially affected the outcome of the immigration proceedings.” Gomez-Velazco

v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018) (emphasis added) (citations

omitted). Ugalde had a potentially meritorious argument that his conviction under

Cal. Health & Safety Code § 11378 was not a categorical match for the aggravated

2 23-2400 felony definition under the federal removal statute. At least two district courts

have held that the California state statute of conviction is broader than the federal

generic crime because it defines methamphetamine analogs more broadly than the

federal controlled substance statute does. See United States v. Verdugo, 682 F.

Supp. 3d 869, 873 (S.D. Cal. 2023); United States v. Morales-Rodriguez, 744 F.

Supp. 3d 1036, 1056 (S.D. Cal. 2024). We have not yet addressed this question,

the resolution of which has the potential to affect the outcome of the removal

proceedings. We therefore remand to the agency to afford the opportunity to

Ugalde that it denied him through the regulatory violation to address this issue in

the first instance, without expressing any view about its appropriate resolution. On

remand, the agency should also consider the effect, if any, of the vacatur of

Ugalde’s state court conviction.1

PETITION GRANTED.

1 We grant Ugalde’s motion to take judicial notice (Dkt. 26) that the 1998 conviction underlying his removal order was vacated on July 10, 2024. See Singh v. Ashcroft, 393 F.3d 903, 905–06 (9th Cir. 2004). We deny Ugalde’s request for summary disposition (Dkt. 26) and deny his motion to stay removal (Dkt. 3) as moot.

3 23-2400 FILED MAR 11 2025 CALLAHAN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Petitioner Jaime Ugalde Barron (“Ugalde”) cannot show that he was

prejudiced by the government’s regulatory violation. Ugalde was charged with,

and pleaded guilty to, possessing for sale methamphetamine in violation of

California Health & Safety Code § 11378. His conviction thus constitutes an

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), rendering him deportable

under 8 U.S.C. 1227(a)(2)(A)(iii). Notwithstanding what the majority says,

Ugalde does not have a “potentially meritorious” argument to the contrary. I

respectfully dissent.

California Health & Safety Code § 11378 “is a divisible statute.” United

States v. Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017). We therefore

employ the modified categorial approach, and “look[] to a limited class of

documents (for example, the indictment, jury instructions, or plea agreement and

colloquy) to determine what crime, with what elements, a defendant was convicted

of.” Mathis v. United States, 579 U.S. 500, 505 (2016). Here, the guilty plea and

felony complaint show that Ugalde unlawfully possessed for purpose of sale “a

controlled substance, to wit, methamphetamine.”

The majority relies on two district court decisions for the proposition that

California law defines “methamphetamine analogs” more broadly than federal law

does. But methamphetamine analogs are not part of this case. Only

-1- methamphetamine is. We do not need to “assume” that Ugalde’s conviction “was

predicated on a plea of guilty to the controlled-substance element of

methamphetamine in particular.” Ocampo-Estrada, 873 F.3d at 669. We know it

was. Moreover, California’s definition of methamphetamine does not include

“methamphetamine analogs,” see Cal. Health & Safety Code § 1055(d)(2), and we

have held on at least two occasions that “California’s definition of

methamphetamine is a categorical match to the definition under federal law.”

United States v. Ceja, 23 F.4th 1218, 1227 (9th Cir. 2022); United States v.

Rodriguez-Gamboa, 972 F.3d 1148, 1153, 1154 n.5 (9th Cir. 2020).

In sum, Ugalde’s conviction under California law constitutes an “aggravated

felony,” which contemplates the “illicit trafficking in a controlled substance” like

methamphetamine. See 8 U.S.C. § 1101(a)(43)(B) (defining an “aggravated

felony” as including “illicit trafficking in a controlled substance (as defined in

section 802 of Title 21).”); see 21 U.S.C. § 802(6) (defining “controlled substance”

as a drug included in Schedules I-V), id. § 812, Schedule II (c)

(methamphetamine), Schedule III (a)(3) (same).

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