Ricardo Lopez-Villa v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 2021
• Docket: 11-73518
• Status: Unpublished

Opinion

FILED UNITED STATES COURT OF APPEALS APR 29 2021 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

RICARDO LOPEZ-VILLA, No. 11-73518

Petitioner, Agency No. A045-135-800

v. ORDER MERRICK B. GARLAND, Attorney General,

Respondent.

Before: W. FLETCHER, N.R. SMITH, and R. NELSON, Circuit Judges.

The memorandum disposition filed on September 20, 2019, and reported at

Lopez-Villa v. Barr, 777 F. App’x 897 (9th Cir. 2019), is withdrawn. Because the

court’s disposition is withdrawn, Respondent’s petition for panel rehearing is

moot. A superseding memorandum disposition will be filed concurrently with this

order. Further petitions for rehearing and petitions for rehearing en banc may be

filed. FILED NOT FOR PUBLICATION APR 29 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

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

Argued and Submitted October 7, 2016 Resubmitted September 20, 2019 Seattle, Washington

Before: W. FLETCHER, N.R. SMITH, and R. NELSON, Circuit Judges.

Ricardo Lopez-Villa petitions for review of the dismissal of the appeal of his

order of removal by the Board of Immigration Appeals (“BIA”). The BIA

affirmed the decision by an Immigration Judge (“IJ”) finding Lopez-Villa

removable based on his conviction for trafficking in cocaine, Idaho Code

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 37-2732B(a)(2)(A), as (1) a controlled substance offense, 8 U.S.C.

§ 1227(a)(2)(B)(i), and (2) an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii).

Lopez-Villa challenges his removal based on his conviction of an aggravated

felony.1

Because Lopez-Villa is a legal permanent resident, the government bears the

burden of proving that he is removable on all charges of removability. See Cheuk

Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010); see also Pereida v.

Wilkinson, 141 S. Ct. 754, 761 (2021). Lopez-Villa argues that Idaho Code

§ 37-2732B(a)(2)(A) is not an aggravated felony because it punishes possession,

which is not punishable as a felony offense. See 21 U.S.C. §§ 841, 844.

Even assuming Idaho Code § 37-2732B(a)(2)(A) is divisible,2 the

government failed to meet its burden of proof. The judgment and amended

judgment are inconclusive as to whether Lopez-Villa was convicted of an

aggravated felony offense. See Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th

Cir. 2014) (“When a court using the modified categorical approach to determine

whether an underlying conviction is a predicate offense relies solely on the link

1 Lopez-Villa conceded removability as having been convicted of a controlled substance offense. 2 Because it is not necessary to our disposition, we take no position with regard to whether the statute is divisible or indivisible. 2 between the charging papers and the abstract of judgment, that link must be clear

and convincing.”). Based on the record before us, we are unable to determine

whether Lopez-Villa possessed, manufactured, or delivered a controlled substance.

Accordingly, the BIA erred when it concluded that Lopez-Villa was removable

based on a conviction of an aggravated felony. See Rendon v. Mukasey, 520 F.3d

967, 975 (9th Cir. 2008) (noting that trafficking requires “some sort of commercial

dealing” (citation omitted)).

Although the BIA appeared to review Lopez-Villa’s appeal as an application

for cancellation of removal, Lopez-Villa’s appeal from the IJ was based on

whether he was removable as having been convicted of an aggravated felony. The

BIA concluded that Lopez-Villa was convicted of an aggravated felony, and the

conviction precluded him from obtaining cancellation of removal. However,

Lopez-Villa had not yet applied for cancellation of removal; thus, the issue of

whether Lopez-Villa is eligible for cancellation of removal is not before us. See

Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (holding that we “cannot affirm

the BIA on a ground upon which it did not rely” (citation omitted)). Accordingly,

we remand this matter back to the BIA for further proceedings, including allowing

Lopez-Villa to seek whatever relief from removal may be available to him.

PETITION FOR REVIEW GRANTED, REMANDED.