Rosas-Castaneda v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LUIS JAVIER ROSAS-CASTANEDA, 
Petitioner, No. 10-70087
v.
 Agency No.
A44-113-142
ERIC H. HOLDER JR., Attorney
General OPINION
Respondent,

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
December 9, 2010—San Francisco, California

Filed January 4, 2011

Before: Robert E. Cowen,* A. Wallace Tashima, and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

257
260 ROSAS-CASTANEDA v. HOLDER

COUNSEL

John M. DeStefano, III (argued), Snell & Wilmer, L.L.P,
Phoenix, Arizona, for the petitioner.

Tony West, Assistant Attorney General; Linda S. Wernery,
Assistant Director; James E. Grimes (argued), Senior Litiga-
tion Counsel, Office of Immigration Litigation, Civil Divi-
sion, Department of Justice, Washington, D.C., for the
respondent.
 ROSAS-CASTANEDA v. HOLDER 261
OPINION

SILVERMAN, Circuit Judge:

Luis Javier Rosas-Castaneda, a native and citizen of Mex-
ico and a lawful permanent resident of the United States, was
convicted of attempted transportation for sale of an amount of
marijuana weighing more than two pounds in violation of Ari-
zona law. An Immigration Judge found Rosas-Castaneda
removable based on his conviction for a controlled substance
violation, but found the record of conviction unclear as to
whether his offense constituted an aggravated felony. The IJ
requested that Rosas-Castaneda submit the criminal transcript
to corroborate the inconclusive record; however, Rosas-
Castaneda declined to provide any further evidence of his
conviction. Instead, Rosas-Castaneda argued, citing Sandoval-
Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), that he met
his burden for relief from removal because the record of con-
viction did not conclusively prove that his offense constituted
an aggravated felony. The IJ denied his application for cancel-
lation of removal. On appeal, the BIA affirmed, ruling that the
REAL ID Act changes the result of Sandoval-Lua. We hold
today that it does not. Both before and after the REAL ID Act,
including at the time Sandoval-Lua was decided, the burden
of proof was, is, and remains on the alien. In this particular
respect, the REAL ID Act merely codified existing law.
Therefore, the REAL ID Act did not affect the holding in
Sandoval-Lua.

FACTUAL AND PROCEDURAL BACKGROUND

Rosas-Castaneda entered the United States as a lawful per-
manent resident on August 13, 1993. On December 15, 2006,
Rosas-Castaneda was charged with one count of attempted
transportation for sale of an amount of marijuana weighing
more than two pounds and one count of knowingly possessing
for sale an amount of marijuana weighing more than four
pounds. On March 22, 2007, he signed an agreement to plead
262 ROSAS-CASTANEDA v. HOLDER
guilty to one count: “attempted transportation of marijuana for
sale, involving more than two pounds, a class three felony, in
violation of A.R.S. §§ 13-1001, 13-3405, 13-3401, 13-601,
13-702, and 13-801.” On April 23, 2007, he was convicted in
Maricopa County Superior Court on that count and sentenced
to 30 months’ incarceration.

Rosas-Castaneda was served with a notice to appear on
April 25, 2007, alleging that he was removable because his
conviction constituted (1) an aggravated felony, as defined in
8 U.S.C. § 1101(a)(43)(B) (illicit trafficking in a controlled
substance) and (U) (attempt to commit an aggravated felony),
and (2) a violation of a law relating to a controlled substance,
as defined in 8 U.S.C. § 1227(a)(2)(B)(i). Rosas-Castaneda
denied removability.

On June 12, 2009, the IJ admitted Rosas-Castaneda’s con-
viction documents into evidence — the criminal complaint
against him and his plea agreement. Based on these docu-
ments, the IJ found Rosas-Castaneda removable on account of
his conviction for a controlled substance offense, but not on
the basis of a conviction for an aggravated felony. The IJ
found that the statute under which Rosas-Castaneda had been
convicted was divisible, and that the government had failed to
prove by clear and convincing evidence that Rosas-
Castaneda’s offense constituted an aggravated felony for pur-
poses of removal.

After the IJ found him removable based on the conviction
for a controlled substance offense, Rosas-Castaneda stated his
intention to apply for cancellation of removal. Aggravated fel-
ons are not eligible for cancellation of removal. 8 U.S.C.
§ 1229b(a). Having found the statute of conviction divisible,
the IJ reviewed the record of conviction. These documents
reveal only that Rosas-Castaneda was convicted of one count
of “[a]ttempted transportation of marijuana for sale, involving
more than two pounds, a class 3 felony in violation of A.R.S.
§§ 13-1001, 13-3405, 13-3401, 13-610, 13-701, 13-702, and
 ROSAS-CASTANEDA v. HOLDER 263
13-801.” The IJ found the record of conviction inconclusive
and ordered Rosas-Castaneda to produce a transcript of his
Arizona criminal court plea hearing.

Rosas-Castaneda argued that under Sandoval-Lua, 499 F.3d
1121, to meet his burden of proof to establish eligibility for
cancellation of removal, he needed only to prove that the
record of conviction is inconclusive as to whether he was con-
victed of an aggravated felony. The IJ rejected that argument,
distinguishing Sandoval-Lua as inapplicable to applications
for relief submitted under the subsequently enacted REAL ID
Act, and held that the REAL ID Act placed the burden on
Rosas-Castaneda to comply with a request to corroborate
inconclusive conviction documents. Rosas-Castaneda repre-
sented that he would request the transcript, and the IJ contin-
ued the proceedings — first until July 28, 2009, then again
until September 3, 2009.

In a hearing on September 3, 2009, Rosas-Castaneda
argued that (1) the rule stated in Sandoval-Lua applied to
post-REAL ID Act cases, (2) he was not required to present
any further conviction documents to meet his burden of proof
for eligibility for cancellation of removal, and (3) he had met
his burden by showing that the judicially noticeable convic-
tion documents in the record were inconclusive as to whether
his offense constituted an aggravated felony. The IJ asked
Rosas-Castaneda if he had requested and received the tran-
script of his plea hearing. Rosas-Castaneda responded that he
had attempted to get the transcript, but had not yet received
it. Rosas-Castanda then declined the IJ’s offer of a continu-
ance until the transcript arrived. The IJ proceeded to receive
evidence in support of Rosas-Castaneda’s application for can-
cellation of removal “in the interest of judicial economy.” The
IJ issued an oral decision and order at the close of the hearing.

The IJ found Rosas-Castaneda removable based on his con-
viction of an offense relating to a controlled substance, and
denied his application for cancellation of removal based on
264 ROSAS-CASTANEDA v. HOLDER
his failure to prove conclusively that he had not been con-
victed of an aggravated felony. The IJ held that under the
REAL ID Act, Rosas-Castaneda could be required to produce
transcripts from the state criminal proceedings as “corroborat-
ing evidence.” The IJ distinguished Sandoval-Lua on the
grounds that Sandoval-Lua did not apply post-REAL ID Act.
The IJ also found that if Rosas-Castaneda were eligible for
cancellation of removal, then his application for relief would
have “merit[ed] a favorable exercise of discretion.”

On appeal, the BIA did not review whether Rosas-
Castaneda’s conviction documents were, in fact, inconclusive;
nonetheless, the Board affirmed the IJ’s decision that the pro-
duction of an inconclusive record of conviction did not carry
Rosas-Castaneda’s burden to prove eligibility for cancellation
of removal. The BIA also distinguished our decision in
Sandoval-Lua as not applicable to applications for relief filed
after the effective date of the REAL ID Act. Furthermore, the
BIA, having found him ineligible for cancellation of removal,
mooted the IJ’s finding that, if eligible, Rosas-Castaneda’s
application would merit a favorable exercise of discretion in
granting cancellation of removal. Rosas-Castaneda’s appeal
was dismissed, and he has been removed from the United States.1

JURISDICTION

On January 11, 2010, Rosas-Castaneda filed a timely peti-
tion for review of the BIA’s December 18, 2009, final order
of removal. This Court has jurisdiction to review the peti-
tion’s constitutional and legal claims pursuant to 8 U.S.C.
§ 1252(a)(2)(D). Jurisdiction in the immigration proceedings
was proper under 8 U.S.C. § 1229a.
1
We retain jurisdiction notwithstanding Rosas-Castaneda’s having been
removed. See 8 U.S.C. § 1252(d); Andreiu v. Ashcroft, 253 F.3d 477, 484
(9th Cir.2001) (en banc).
 ROSAS-CASTANEDA v. HOLDER 265
STANDARD OF REVIEW

We review the unpublished decision of the BIA under the
deference scheme set forth in Skidmore v. Swift & Co., 323
U.S. 134, 65 S. Ct. 161, 89 L.Ed. 124 (1944), “entitling the
interpretation to a respect proportional to its power to per-
suade.” Vasquez v. Holder, 602 F.3d 1003, 1012 n.8 (9th Cir.
2010) (internal citations and quotations omitted).

“Legal determinations regarding an alien’s eligibility for
cancellation of removal are reviewed de novo.” Sandoval-
Lua, 499 F.3d at 1126 (quoting Sinotes-Cruz v. Gonzales, 468
F.3d 1190, 1194 (9th Cir. 2006)).

DISCUSSION

I. Sandoval-Lua Applies in the Post-REAL ID Act
Context.

Prior to the enactment of the REAL ID Act in 2005, a
removable alien applying for discretionary relief from
removal had the burden of proving by a preponderance of the
evidence (1) that she was eligible for relief, and (2) that her
application merited a favorable exercise of discretion. 8
C.F.R. § 1240.8(d). For a lawful permanent resident to prove
eligibility for cancellation of removal, she must show that she
has (1) been a lawful permanent resident for at least five
years; (2) resided in the United States continuously for seven
years, regardless of immigration status; and (3) not been con-
victed of any aggravated felony. Toro-Romero v. Ashcroft,
382 F.3d 930, 937 (9th Cir. 2004) (citing 8 U.S.C.
§ 1229b(a)). Conviction of an aggravated felony constitutes a
mandatory ground for denial of relief. Sandoval-Lua, 499
F.3d at 1127. Where an alien’s conviction “indicates that one
or more of the grounds for mandatory denial of the applica-
tion for relief may apply, the alien shall have the burden of
proving by a preponderance of the evidence that such grounds
do not apply.” Id. at 1129 (citing 8 C.F.R. § 1240.8(d)).
266 ROSAS-CASTANEDA v. HOLDER
[1] In 2007, we decided Sandoval-Lua, the facts of which
are similar to those in this case. In Sandoval-Lua, we upheld
an IJ’s decision finding a removable alien eligible for cancel-
lation of removal because the statute under which the alien
was convicted was divisible and the record of conviction was
inconclusive as to whether the offense constituted an aggra-
vated felony. Id. at 1124. Relying on the Supreme Court’s
decisions in Shepard v. United States, 544 U.S. 13, 125 S. Ct.
1254, 161 L. Ed. 2d 205 (2005), and Taylor v. United States,
495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990),
Sandoval-Lua held that under the modified categorical
approach, the relevant inquiry was “whether the judicially
noticeable documents establish that [the alien’s] conviction
necessarily was for all of the elements constituting an aggra-
vated felony . . . . If the record of conviction does not so
establish, [then the conviction] cannot amount to the generic
offense, and [the alien] has carried his burden.” 499 F.3d at
1131. We therefore held that “[b]y submitting an inconclusive
record of conviction, Lua has affirmatively proven under the
modified categorical analysis that he was not necessarily
‘convicted of any aggravated felony.’ ” Id. at 1130 (quoting
8 U.S.C.§ 1229b(a)(3)).

We now consider whether the REAL ID Act has changed
the law regarding an alien’s burden of proof in cancellation of
removal actions in such a way that Sandoval-Lua has been
statutorily overruled.

A. The Statutory Language of 8 U.S.C.
§ 1229a(c)(4)(A) Confirms That the REAL ID Act
Codified the Existing Regulatory Scheme.

[2] The REAL ID Act amended the Immigration and
Nationality Act in 2005, inserting paragraph (4), titled “Appli-
cations for Relief from Removal,” into 8 U.S.C.§ 1229a(c).
Pub. L. No. 109-13, § 101(d)(2), 119 Stat. 231 (2005). The
statute reads:
 ROSAS-CASTANEDA v. HOLDER 267
An alien applying for relief or protection from
removal has the burden of proof to establish that the
alien (i) satisfies the applicable eligibility require-
ments; and (ii) with respect to any form of relief that
is granted in the exercise of discretion, that the alien
merits a favorable exercise of discretion.

8 U.S.C. § 1229a(c)(4)(A). This provision appears no differ-
ent in substance than the requirement stated in the regulation
at issue in Sandoval-Lua. That regulation, 8 C.F.R.
§ 1240.8(d), reads:

The respondent shall have the burden of establishing
that he or she is eligible for any requested benefit or
privilege and that it should be granted in the exercise
of discretion.

Under both the recently enacted Act and the pre-existing reg-
ulation, aliens applying for cancellation of removal have the
burden of establishing (1) their eligibility for relief, and (2)
that their applications merit a favorable exercise of discretion.
There is no evidence to suggest that the burden of proof in 8
C.F.R. § 1240.8(d) was adopted with any extraordinary mean-
ing, or that Congress intended the REAL ID Act to distin-
guish or supersede the regulation’s meaning in any way.
Indeed, 8 C.F.R. § 1240.8(d) is still a valid regulation, in
force with no apparent change to its terms or their meaning
since the enactment of the REAL ID Act. Because the enact-
ment of 8 U.S.C. § 1229a(c)(4)(A) merely codifies the regula-
tion at 8 C.F.R. § 1240.8(d), the REAL ID Act did not work
any change in that law that affects Sandoval-Lua’s logic,
holding, or applicability.

B. The Statutory Language of 8 U.S.C.
§ 1229a(c)(4)(B) Does Not Grant an IJ Authority to
Require an Alien to Supplement the Record of
Conviction.

[3] The text of 8 U.S.C. § 1229a(c)(4)(B) reads:
268 ROSAS-CASTANEDA v. HOLDER
The applicant must comply with the applicable
requirements to submit information or documenta-
tion in support of the applicant’s application for
relief or protection as provided by law or by regula-
tion or in the instructions for the application form. In
evaluating the testimony of the applicant or other
witness in support of the application, the immigra-
tion judge will determine whether or not the testi-
mony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant has
satisfied the applicant’s burden of proof. In deter-
mining whether the applicant has met such burden,
the immigration judge shall weigh the credible testi-
mony along with other evidence of record. Where
the immigration judge determines that the applicant
should provide evidence which corroborates other-
wise credible testimony, such evidence must be pro-
vided unless the applicant demonstrates that the
applicant does not have the evidence and cannot rea-
sonably obtain the evidence.

(emphasis added).

[4] The plain language of 8 U.S.C. § 1229a(c)(4)(B) unam-
biguously authorizes IJs to request corroboration of only testi-
monial evidence, and conspicuously excludes the authority to
require an alien to corroborate “other evidence in the record.”
“[W]here Congress includes particular language in one sec-
tion of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” See
Kucana v. Holder, ___ U.S. ___, 130 S. Ct. 827, 838 (2010)
(quoting Nken v. Holder, 556 U.S. ___, 129 S. Ct. 1749, 1759,
173 L. Ed. 2d 550 (2009)). The third sentence of 8 U.S.C.
§ 1229a(c)(4)(B), describing the universe of evidence avail-
able to support an IJ’s decision, clearly distinguishes “testi-
mony” from “other evidence in the record.” In light of this
distinction, the charge to the IJ in the second sentence to “de-
 ROSAS-CASTANEDA v. HOLDER 269
termine whether or not testimony is credible” and the grant of
the authority to the IJ in the fourth sentence to request that
“the applicant . . . provide evidence which corroborates other-
wise credible testimony” should naturally be circumscribed to
refer only to testimony, and not to “other evidence in the
record,” such as conviction documents. Id. (emphases added).

Furthermore, the authority to require corroborating evi-
dence focuses on the issue of “credible testimony” and an
applicant’s credibility generally, 8 U.S.C. § 1229a(c)(4)(B)
(emphasis added); however, there are no issues of credibility
raised by the narrow set of judicially noticeable documents
available under Shepard, 544 U.S. at 16, to determine if an
alien’s conviction renders him ineligible for relief. See Fed. R.
Evid. 201(b) (“A judicially noticed fact must be one not sub-
ject to reasonable dispute . . . .”).

The plain language of the statute therefore demonstrates
that Congress was unambiguous in its intent to grant an IJ
authority to request corroboration of only testimonial evi-
dence under 8 U.S.C. § 1229a(c)(4)(B). Moreover, the BIA
could not have reasonably concluded that 8 U.S.C.
§ 1229a(c)(4)(B) extended the scope of the IJ’s authority to
request evidence corroborating “otherwise credible testimo-
ny” to include judicially noticeable conviction documents.
Having determined that there is no statutory ambiguity in 8
U.S.C. § 1229a(c)(4)(A) or (B), we find the BIA’s position
incorrect, and accord it no deference. See Choin v. Mukasey,
537 F.3d 1116, 1120-21 (9th Cir. 2008).

[5] “We are bound by circuit precedent unless there has
been a substantial change in relevant circumstances . . . or a
subsequent en banc or Supreme Court decision that is clearly
irreconcilable with our prior holding.” United States v.
Vasquez-Ramos, 531 F.3d 987, 991 (9th Cir. 2008) (internal
citations omitted). Because the REAL ID Act has made no
change in the law that would make our precedent in Sandoval-
Lua inapplicable to applications for relief submitted under the
270 ROSAS-CASTANEDA v. HOLDER
REAL ID Act, we hold that the BIA erred in failing to apply
Sandoval-Lua to Rosas-Castaneda’s application for cancella-
tion of removal.

II. The Record of Conviction Is Inconclusive as to
Whether Rosas-Castaneda’s Offense Qualifies as
an Aggravated Felony.

[6] To determine whether Rosas-Castaneda’s conviction
for “attempted transportation for sale of more than two
pounds” under Ariz. Rev. Stat. § 13-3405 constitutes an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B), the court
applies the two-step categorical approach articulated in Taylor.2
See Parrilla v. Gonzales, 414 F.3d 1038, 1042-44 (9th Cir.
2005).

[7] Rosas-Castaneda’s statute of conviction provides in rel-
evant part: “A person shall not knowingly . . . transport for
sale, import into this state or offer to transport for sale or
import into this state, sell, transfer or offer to sell or transfer
marijuana.” Ariz. Rev. Stat. § 13-3405(A)(4). A conviction
under this statute does not qualify categorically as an aggra-
2
The government argues that the Supreme Court’s decision in Nijhawan
v. Holder, ___ U.S. ___, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009), has
undermined Sandoval-Lua; however, Nijhawan is inapposite. In Nijhawan,
the Court “added a new step to the familiar categorical/modified-
categorical approaches first announced in Taylor [ ]. Under this approach,
we must first decide whether a requirement under a generic crime is an
‘element’ of the generic crime instead of simply a description of the ‘par-
ticular circumstances’ in which the offender committed the crime on a
specific occasion.” Kawashima v. Holder, 615 F.3d 1043, 1054 (9th Cir.
2010). As the Court has recently stated, Nijhawan affects those documents
noticeable under Shepard only in cases where a circumstance-specific
inquiry is required. See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577,
2586 n.11 (2010).
Whether Rosas-Castaneda’s offense qualifies as a aggravated felony
turns on whether the elements, rather than the circumstances, of his con-
viction fall within the scope of the generic drug trafficking crime.
Sandoval-Lua clearly applies. Nijhawan merely reaffirms that it does.
 ROSAS-CASTANEDA v. HOLDER 271
vated felony because it contains solicitation offenses,3 which
we have held do not qualify as aggravated felonies within the
meaning of 8 U.S.C. § 1101(a)(43)(B). See Sandoval-Lua,
499 F.3d at 1130 (citing Leyva-Licea v. INS, 187 F.3d 1147,
1150 (9th Cir. 1999)). Because Ariz. Rev. Stat. § 13-3405
“punishes solicitation, the full range of conduct encompassed
by the statute does not constitute an aggravated felony under
8 U.S.C. § 1101(a)(43)(B).” Sandoval-Lua, 499 F.3d at 1128
(quoting United States v. Rivera-Sanchez, 247 F.3d 905, 909
(9th Cir. 2001)).

[8] Turning to the modified categorical approach, we con-
sider “whether the record contains judicially noticeable docu-
ments which satisfy [Rosas-Castaneda’s] burden of
establishing by a preponderance of the evidence that his con-
trolled substance conviction under [Ariz. Rev. Stat. § 13-
3405] does not constitute a conviction of an aggravated felo-
ny.” Sandoval-Lua, 499 F.3d at 1129. The list of judicially
noticeable documents that this court may consider in applying
the modified categorical approach is limited to the “charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.” Id. (quoting Shepard, 544 U.S. at 16).
Where a record of conviction proves inconclusive, an alien
carries his burden of proving by a preponderance of the evi-
dence that she has not been convicted of an aggravated fel-
ony. Id. at 1130. The record in this case includes the charging
document and a copy of the plea agreement. Together these
documents reveal only that Rosas-Castaneda was convicted of
one count of “[a]ttempted transportation of marijuana for sale,
involving more than two pounds, a class 3 felony in violation
of Ariz. Rev. Stat. §§ 13-1001, 13-3405, 13-3401, 13-610, 13-
701, 13-702, and 13-801.”
3
The inclusion of the phrases “offer to transport for sale or import into
this state,” and “offer to sell or transfer marijuana” demonstrates that this
statute includes solicitation offenses. See Sandoval-Lua, 499 F.3d at 1130.
272 ROSAS-CASTANEDA v. HOLDER
[9] “If judicially noticeable facts would allow the defen-
dant to be convicted of an offense other than that defined as
a qualifying offense,” then those facts do not satisfy the modi-
fied categorical approach, which requires that a court “deter-
mine if the record unequivocally establishes that the
defendant was convicted of the generically defined crime.”
United States v. Navidad-Marcos, 367 F.3d 903, 909 (9th Cir.
2004) (quotation marks and internal citation omitted). Neither
document in the record of conviction produces any specific
information that definitively rules out the possibility that
Rosas was convicted of a solicitation offense under Ariz. Rev.
Stat. § 13-3405. We therefore hold the record of conviction
inconclusive, we grant Rosas-Castaneda’s petition for review,
vacate the BIA’s order denying him cancellation of removal,
and we remand to the BIA for proceedings consistent with
this opinion.

PETITION GRANTED.