Coronado v. Holder

759 F.3d 977, 2014 WL 3537027
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 14, 2014
DocketNo. 11-72121
StatusPublished
Cited by154 cases

This text of 759 F.3d 977 (Coronado v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coronado v. Holder, 759 F.3d 977, 2014 WL 3537027 (9th Cir. 2014).

Opinion

ORDER AND AMENDED OPINION

ORDER

The opinion filed on March 14, 2014, and appearing at 747 F.3d 662, is amended. The superseding amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing. Judge Bybee and Judge Nguyen have voted to deny the petition for rehearing en banc, and Judge Benavides has so recommended. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. See Fed. R.App. P. 35(f).

The petition for panel rehearing and rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

NGUYEN, Circuit Judge:

Raul Quijada Coronado petitions for review of the Board of Immigration Appeals’ [981]*981(“BIA”) decision finding him inadmissible and denying his application for cancellation of removal. Coronado argues that the BIA erred in concluding that he had suffered two prior convictions for possession of a controlled substance prohibited under the Federal Controlled Substances Act (“CSA”), 21 U.S.C. § 802. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Coronado further argues that the BIA erred in failing to address his constitutional claims.

We hold that the statute under which Coronado was convicted, California Health & Safety Code § 11377(a), is a divisible statute, and thus, we apply the modified categorical approach in analyzing Coronado’s prior convictions. See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) (stating that the modified categorical approach applies only to prior convictions under a “divisible” statute, one that “sets out one or more elements of the offense in the alternative”). Under that approach, the government satisfied its burden of proving that Coronado was twice convicted of possessing methamphetamine, a controlled substance listed in the CSA. Therefore, the BIA did not err in finding Coronado inadmissible based on his prior convictions.

However, because the BIA failed to address Coronado’s due process claims, which allege ineffective assistance of counsel and bias by the immigration judge (“IJ”), we remand to the BIA for consideration of these claims in the first instance. We dismiss Coronado’s unexhausted equal protection claim for lack of jurisdiction.

Background

I

Coronado, a native and citizen of Mexico, became a legal permanent resident of the United States in 1961. In 1998, he was charged in state court with possession of methamphetamine in violation of California Health & Safety Code § 11377(a). According to the state court’s certified electronic docket in Case No. 8LC01036, he pleaded guilty to “Count (01),” the only charge in the criminal complaint. In December 2006, the court entered judgment against Coronado “as to Count (01)” (the “2006 Conviction”).

On September 15, 2008, Coronado applied for admission to the United States after making a trip to Mexico. Upon checking his criminal records, Border Patrol officers learned of the 2006 Conviction. On that same day, Coronado was paroled into the United States, and the Department of Homeland Security (“DHS”) served him with a Notice to Appear. In May 2009, DHS served him with a Form 1-261, which alleged, among other things, that Coronado was subject to removal due to his conviction in 2006 for possession of methamphetamine.

In December 2009, while in removal proceedings, Coronado was again charged in state court with possession of methamphetamine in violation of California Health & Safety Code § 11377(a). According to the court minutes in Case No. JCF24680, on March 23, 2010, Coronado pleaded guilty to “Count 1: HS11377(A),” the only charge in the criminal complaint (the “2010 Conviction”).

II

A

During his removal proceedings, Coronado denied having been convicted of methamphetamine possession. To prove the 2006 Conviction, the government submitted the criminal complaint and the certified electronic docket of that case. Further, to prove the 2010 Conviction, the [982]*982government submitted documents that included the criminal complaint and the court minutes of that case.

The IJ found Coronado inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) due to his convictions for possession of a controlled substance listed in the CSA. Further, after weighing the relevant factors, the IJ denied Coronado’s application for cancellation of removal.

Appearing pro se, Coronado appealed to the BIA, which affirmed the IJ’s finding that Coronado was inadmissible based on his prior drug convictions. The BIA also affirmed the IJ’s denial of cancellation of removal on the ground that Coronado’s “undesirability as a permanent resident” outweighed the positive equities. Coronado timely petitioned for review.

B

In his opening brief to this court, Coronado did not challenge the use of the modified categorical approach with regard to his prior convictions. Instead, he argued that the BIA erred because the charging papers alone were insufficient to prove that he was convicted of possessing a controlled substance listed in the CSA.

While Coronado’s petition for review was pending, the Supreme Court issued a decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438, which clarified the circumstances in which the modified categorical approach may be applied. The parties filed letters pursuant to Federal Rule of Appellate Procedure 28(j), taking contrary positions as to the applicability of the modified categorical approach to Coronado’s state court convictions. The government argued that § 11377(a) is a divisible statute, whereas Coronado contended that the statute is not necessarily divisible.

Jurisdiction and Standard of Review

We have jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D); see also Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1033 (9th Cir.2010) (applying 8 U.S.C. § 1252(a)(2)(D)). Whether Coronado’s drug convictions render him inadmissible is a question of law. See Pagayon v. Holder, 675 F.3d 1182, 1189 (9th Cir.2011) (per curiam); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004). Further, Coronado raised several constitutional claims. Accordingly, we have jurisdiction to hear Coronado’s petition.

We review questions of law and constitutional claims de novo. Khan v. Holder,

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Bluebook (online)
759 F.3d 977, 2014 WL 3537027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coronado-v-holder-ca9-2014.