FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUAN ROLANDO HERNANDEZ- No. 06-71945 AGUILAR, Petitioner, Agency No. v. A092-703-483 ORDER AND ERIC H. HOLDER JR., Attorney AMENDED General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 6, 2009* Pasadena, California
Filed November 25, 2009 Amended January 12, 2010
Before: William A. Fletcher and Richard R. Clifton, Circuit Judges, and Louis H. Pollak,** District Judge.
Opinion by Judge W. Fletcher
* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Louis H. Pollak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
859 HERNANDEZ-AGUILAR v. HOLDER 861 COUNSEL
Howard Robert Davis, Santa Monica, California, Juan Rolando Hernandez-Aguilar, Pro Se, for the petitioner.
Bryan Stuart Beier, US DEPARTMENT OF JUSTICE, Washington, D.C., for the respondent.
ORDER
The court’s opinion, filed November 25, 2009, and pub- lished at Hernandez-Aguilar v. Holder, 587 F.3d 1034 (9th Cir. 2009), is hereby amended as follows:
The final paragraph of the opinion previously read:
Following Mielewczyk, we hold that a conviction under § 11379(a) categorically qualifies for removal under § 1182(a)(2)(A)(i)(II), so long as the substance involved in the conviction is a controlled substance, irrespective of whether the underlying offense was solicitation. Hernandez-Aguilar does not dispute that the substance involved in his conviction was methamphetamine, which is a controlled substance. See 21 U.S.C. § 812 scheds. II(c), III(a)(3). There- fore, his conviction categorically qualifies him for removal.
Hernandez-Aguilar v. Holder, No. 06-71945, slip op. 15603, 15608-09 (9th Cir. Nov. 25, 2009). The opinion is amended so that the final paragraph now reads:
Following Mielewczyk, we hold that a conviction under § 11379(a), irrespective of whether the under- lying offense was solicitation, qualifies for removal under § 1182(a)(2)(A)(i)(II), so long as the substance 862 HERNANDEZ-AGUILAR v. HOLDER involved in the conviction is determined to have been a controlled substance under the modified cate- gorical approach. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007) (noting that Califor- nia law regulates the possession and sale of numer- ous substances that are not similarly regulated by the federal Controlled Substances Act). Hernandez- Aguilar does not dispute that the substance involved in his conviction was methamphetamine, which is a controlled substance. See 21 U.S.C. § 812 scheds. II(c), III(a)(3). Therefore, his conviction qualifies him for removal.
OPINION
W. FLETCHER, Circuit Judge:
Juan Rolando Hernandez-Aguilar petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirm- ing the Immigration Judge’s (“IJ”) final order of removal. The BIA held that Hernandez-Aguilar’s conviction under Califor- nia Health and Safety Code § 11379(a) qualifies as a basis for removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), which makes removable any alien “convicted of a violation of (or a conspiracy or attempt to violate) any law . . . of a State . . . relating to a controlled substance (as defined in section 802 of title 21).” We deny the petition for review.
I. Background
Hernandez-Aguilar is a native and citizen of Mexico. He was born in Tijuana, Mexico in 1972 and entered the United States as an infant in 1973. Hernandez-Aguilar was granted temporary resident status, but that status was revoked in May of 1997. HERNANDEZ-AGUILAR v. HOLDER 863 Beginning in 1997, the Immigration Naturalization Service1 (“INS”) sought to remove Hernandez-Aguilar, claiming that his prior conviction under California law makes him remov- able under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (violation of law relating to a controlled substance) and 8 U.S.C. § 1182(a)(2)(C) (known or believed controlled substance traf- ficker).
The INS provided evidence that Hernandez-Aguilar was previously convicted in California state court for violating California Health and Safety Code § 11379(a), which states in relevant part:
[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, fur- nish, administer, or give away, or attempts to import into this state or transport any controlled substance . . . shall be punished by imprisonment in the state prison for a period of two, three, or four years.
The evidence the government provided to the IJ consisted of a Felony Complaint and a Minute Order of the Superior Court for Ventura County. According to the Minute Order, Hernandez-Aguilar pled guilty on November 3, 1995 to one of two charged counts. The count to which he pled guilty charged that:
On or about August 23, 1995 . . . the crime of SALE OF A CONTROLLED SUBSTANCE, in violation of HEALTH AND SAFETY CODE SECTION 11379(a), a Felony, was committed by JOHN ROL- 1 On March 1, 2003, the INS ceased to exist and its functions were trans- ferred to the newly created Department of Homeland Security, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. Because the relevant agency actions took place before this transfer, we refer to the INS in this opinion. 864 HERNANDEZ-AGUILAR v. HOLDER LAND HERNANDEZ, who did willfully and unlaw- fully transport a controlled substance, to wit, methamphetamine.
The IJ sustained the charges against Hernandez-Aguilar and held him removable to Mexico. The IJ rejected Hernandez-Aguilar’s argument that because § 11379(a) encompasses solicitation it is over-inclusive with respect to § 1182(a)(2)(A)(i)(II), requiring application of the modified categorical approach. In any event, the IJ concluded that the Minute Order and the Felony Complaint provide clear and convincing evidence that Hernandez-Aguilar was convicted for the underlying offense of transporting and selling metham- phetamine, not solicitation. The IJ concluded that he is there- fore removable under both § 1182(a)(2)(A)(i)(II) and § 1182(a)(2)(C). After finding Hernandez-Aguilar removable, the IJ granted him voluntary departure.
The BIA rejected Hernandez-Aguilar’s appeal. The BIA rested its decision entirely on its conclusion “that Cal. Health & Safety Code § 11379(a) is ‘a law . . . of a State . . . relating to a controlled substance,’ such that [Hernandez-Aguilar’s] conviction under it qualifies as a basis for removability under [§ 1182(a)(2)(A)(i)(II)].” It held that “even were [it] to assume that [Hernandez-Aguilar] had been convicted of ‘offering’ to sell, transport, etc., a controlled substance, the crime would nonetheless qualify as a controlled substance violation.” Relying solely on this conclusion, the BIA found it unnecessary to address whether Hernandez-Aguilar is removable under 8 U.S.C.
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUAN ROLANDO HERNANDEZ- No. 06-71945 AGUILAR, Petitioner, Agency No. v. A092-703-483 ORDER AND ERIC H. HOLDER JR., Attorney AMENDED General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 6, 2009* Pasadena, California
Filed November 25, 2009 Amended January 12, 2010
Before: William A. Fletcher and Richard R. Clifton, Circuit Judges, and Louis H. Pollak,** District Judge.
Opinion by Judge W. Fletcher
* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Louis H. Pollak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
859 HERNANDEZ-AGUILAR v. HOLDER 861 COUNSEL
Howard Robert Davis, Santa Monica, California, Juan Rolando Hernandez-Aguilar, Pro Se, for the petitioner.
Bryan Stuart Beier, US DEPARTMENT OF JUSTICE, Washington, D.C., for the respondent.
ORDER
The court’s opinion, filed November 25, 2009, and pub- lished at Hernandez-Aguilar v. Holder, 587 F.3d 1034 (9th Cir. 2009), is hereby amended as follows:
The final paragraph of the opinion previously read:
Following Mielewczyk, we hold that a conviction under § 11379(a) categorically qualifies for removal under § 1182(a)(2)(A)(i)(II), so long as the substance involved in the conviction is a controlled substance, irrespective of whether the underlying offense was solicitation. Hernandez-Aguilar does not dispute that the substance involved in his conviction was methamphetamine, which is a controlled substance. See 21 U.S.C. § 812 scheds. II(c), III(a)(3). There- fore, his conviction categorically qualifies him for removal.
Hernandez-Aguilar v. Holder, No. 06-71945, slip op. 15603, 15608-09 (9th Cir. Nov. 25, 2009). The opinion is amended so that the final paragraph now reads:
Following Mielewczyk, we hold that a conviction under § 11379(a), irrespective of whether the under- lying offense was solicitation, qualifies for removal under § 1182(a)(2)(A)(i)(II), so long as the substance 862 HERNANDEZ-AGUILAR v. HOLDER involved in the conviction is determined to have been a controlled substance under the modified cate- gorical approach. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007) (noting that Califor- nia law regulates the possession and sale of numer- ous substances that are not similarly regulated by the federal Controlled Substances Act). Hernandez- Aguilar does not dispute that the substance involved in his conviction was methamphetamine, which is a controlled substance. See 21 U.S.C. § 812 scheds. II(c), III(a)(3). Therefore, his conviction qualifies him for removal.
OPINION
W. FLETCHER, Circuit Judge:
Juan Rolando Hernandez-Aguilar petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirm- ing the Immigration Judge’s (“IJ”) final order of removal. The BIA held that Hernandez-Aguilar’s conviction under Califor- nia Health and Safety Code § 11379(a) qualifies as a basis for removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), which makes removable any alien “convicted of a violation of (or a conspiracy or attempt to violate) any law . . . of a State . . . relating to a controlled substance (as defined in section 802 of title 21).” We deny the petition for review.
I. Background
Hernandez-Aguilar is a native and citizen of Mexico. He was born in Tijuana, Mexico in 1972 and entered the United States as an infant in 1973. Hernandez-Aguilar was granted temporary resident status, but that status was revoked in May of 1997. HERNANDEZ-AGUILAR v. HOLDER 863 Beginning in 1997, the Immigration Naturalization Service1 (“INS”) sought to remove Hernandez-Aguilar, claiming that his prior conviction under California law makes him remov- able under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (violation of law relating to a controlled substance) and 8 U.S.C. § 1182(a)(2)(C) (known or believed controlled substance traf- ficker).
The INS provided evidence that Hernandez-Aguilar was previously convicted in California state court for violating California Health and Safety Code § 11379(a), which states in relevant part:
[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, fur- nish, administer, or give away, or attempts to import into this state or transport any controlled substance . . . shall be punished by imprisonment in the state prison for a period of two, three, or four years.
The evidence the government provided to the IJ consisted of a Felony Complaint and a Minute Order of the Superior Court for Ventura County. According to the Minute Order, Hernandez-Aguilar pled guilty on November 3, 1995 to one of two charged counts. The count to which he pled guilty charged that:
On or about August 23, 1995 . . . the crime of SALE OF A CONTROLLED SUBSTANCE, in violation of HEALTH AND SAFETY CODE SECTION 11379(a), a Felony, was committed by JOHN ROL- 1 On March 1, 2003, the INS ceased to exist and its functions were trans- ferred to the newly created Department of Homeland Security, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. Because the relevant agency actions took place before this transfer, we refer to the INS in this opinion. 864 HERNANDEZ-AGUILAR v. HOLDER LAND HERNANDEZ, who did willfully and unlaw- fully transport a controlled substance, to wit, methamphetamine.
The IJ sustained the charges against Hernandez-Aguilar and held him removable to Mexico. The IJ rejected Hernandez-Aguilar’s argument that because § 11379(a) encompasses solicitation it is over-inclusive with respect to § 1182(a)(2)(A)(i)(II), requiring application of the modified categorical approach. In any event, the IJ concluded that the Minute Order and the Felony Complaint provide clear and convincing evidence that Hernandez-Aguilar was convicted for the underlying offense of transporting and selling metham- phetamine, not solicitation. The IJ concluded that he is there- fore removable under both § 1182(a)(2)(A)(i)(II) and § 1182(a)(2)(C). After finding Hernandez-Aguilar removable, the IJ granted him voluntary departure.
The BIA rejected Hernandez-Aguilar’s appeal. The BIA rested its decision entirely on its conclusion “that Cal. Health & Safety Code § 11379(a) is ‘a law . . . of a State . . . relating to a controlled substance,’ such that [Hernandez-Aguilar’s] conviction under it qualifies as a basis for removability under [§ 1182(a)(2)(A)(i)(II)].” It held that “even were [it] to assume that [Hernandez-Aguilar] had been convicted of ‘offering’ to sell, transport, etc., a controlled substance, the crime would nonetheless qualify as a controlled substance violation.” Relying solely on this conclusion, the BIA found it unnecessary to address whether Hernandez-Aguilar is removable under 8 U.S.C. § 1182(a)(2)(C).
Hernandez-Aguilar petitioned for review by this court.
II. Standard of Review
“Whether a particular conviction is a [removable] offense is a question of law we review de novo.” Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000). We have jurisdiction under 8 HERNANDEZ-AGUILAR v. HOLDER 865 U.S.C. § 1252(a)(2)(D) to review questions of law raised by the BIA’s final order. Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009).
III. Discussion
“To determine whether a conviction constitutes a predicate offense for removal purposes, we use the analytical model constructed by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).” Mielewczyk, 575 F.3d at 994 (internal quotation marks omitted) (determining whether a conviction constitutes a crime relating to a controlled substance); see also Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1127 (9th Cir. 2007) (determining whether a conviction under California Health and Safety Code § 11379(a) constitutes an aggravated felony).
Taylor prescribes a two-step test. We begin by examining whether a conviction under California Health and Safety Code § 11379(a) categorically qualifies as a crime relating to a con- trolled substance under 8 U.S.C. § 1182(a)(2)(A)(i)(II). See Sandoval-Lua, 499 F.3d at 1127. If so, Hernandez-Aguilar’s conviction under § 11379(a) automatically renders him removable. See id. The court engages in the second step, the modified categorical approach, only if a conviction under § 11379(a) does not categorically qualify as a crime relating to a controlled substance under § 1182(a)(2)(A)(i)(II). See Mielewczyk, 575 F.3d at 995.
[1] Hernandez-Aguilar argues that because § 11379(a) pro- hibits solicitation, it is over-inclusive with respect to § 1182(a)(2)(A)(i)(II), and therefore the BIA erred by finding that his conviction categorically qualifies him for removal. The Ninth Circuit recently rejected this argument as it relates to a parallel statute containing the same relevant language as the statute at issue in this case. See Mielewczyk, 575 F.3d at 996-99. In Mielewczyk, the petitioner was convicted of offer- ing to transport heroin in violation of California Health and 866 HERNANDEZ-AGUILAR v. HOLDER Safety Code § 11352(a). Id. at 994. The IJ and BIA held this conviction to be a removable offense within the definition of 8 U.S.C. § 1227(a)(2)(B)(i). Id. The court affirmed.
[2] Following Mielewczyk, we hold that a conviction under § 11379(a), irrespective of whether the underlying offense was solicitation, qualifies for removal under § 1182(a)(2)(A)(i)(II), so long as the substance involved in the conviction is determined to have been a controlled sub- stance under the modified categorical approach. See Ruiz- Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007) (not- ing that California law regulates the possession and sale of numerous substances that are not similarly regulated by the federal Controlled Substances Act). Hernandez-Aguilar does not dispute that the substance involved in his conviction was methamphetamine, which is a controlled substance. See 21 U.S.C. § 812 scheds. II(c), III(a)(3). Therefore, his conviction qualifies him for removal.
PETITION DENIED