NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 04 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LUCIANO TORRES-TORRES, No. 09-73799
Petitioner, Agency No. A034-681-752
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2014
San Francisco, California
Before: CALLAHAN and M. SMITH, Circuit Judges, and HELLERSTEIN, Senior
District Judge.**
Petitioner Luciano Torres-Torres (Torres), a native and citizen of Mexico
and lawful permanent resident, petitions for review of a decision of the Board of
Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
finding him removable under 8 U.S.C. § 1227(a)(2)(B)(i) for committing an
offense related to a controlled substance. The BIA affirmed the IJ’s conclusion
that using the modified categorical approach, the record of conviction for Torres’s
1986 conviction for violating California Health and Safety Code § 11350 showed
that he was convicted of the elements of a controlled substance offense under
federal law. Because the parties are familiar with the facts and procedural history
of this case, we repeat only those facts necessary to resolve the issues raised on
appeal. We grant the petition for review because the BIA erred in finding Torres
removable on account of his 1986 conviction.
California’s controlled substance schedules are broader than § 102 of the
Controlled Substances Act and, therefore, Torres’s conviction under California
Health and Safety Code § 11350 is not categorically a removable offense. See
United States v. Valdavinos-Torres, 704 F.3d 679, 687 (9th Cir. 2012).
We must therefore employ the modified categorical approach to determine
whether Torres’s conviction under § 11350 involved a federally prohibited
controlled substance. See id. Under the modified categorical approach, we look to
the documents in the record of conviction, see id., which consists here of the
information, complaint, judgment, and probation order. The information and
complaint provide that Torres was charged with violating California Health and
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Safety Code § 11350 for “hav[ing] in his possession a controlled substance, to wit,
cocaine.” The judgment and probation order, however, state only that Torres was
convicted of violating California Health and Safety Code § 11350, and do not
specify a controlled substance.
Here, like in Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007), and
United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), nothing in the
judgment documents allows us to connect the references to cocaine in the charging
documents with the judgment documents. For example, the judgment documents
do not contain the phrase “as charged in the information” or a specific count of
which Torres was convicted. And charging documents alone are insufficient
evidence that an individual pleaded guilty to the elements of the generic crime.
Valdavinos-Torres, 704 F.3d at 687; see also United States v. Velasco-Medina, 305
F.3d 839, 852 (9th Cir. 2002). Further, California’s informal amendment doctrine
allows the government to amend an information without formally filing a written
amendment to the information. See Vidal, 504 F.3d at 1088 (citing People v.
Sandoval, 140 Cal. App. 4th 111, 132–33 (2006)). As such, we can only
“speculate as to the nature of the substance,” and cannot unequivocally determine
whether Torres’s conviction under § 11350 involved a federally prohibited
controlled substance. Ruiz-Vidal, 473 F.3d at 1079.
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Accordingly, the government has not satisfied its burden of proving by clear,
unequivocal, and convincing evidence that Torres was convicted of a crime
relating to a federally controlled substance. Id. at 1076. The BIA thus erred in
finding Torres removable on account of his 1986 conviction.
For the foregoing reasons, we grant the petition for review. We remand to
the BIA on an open record to consider: (1) whether Torres’s admissions before the
IJ concerning the government’s factual allegations and his removability are
binding; and (2) whether Torres is removable on account of his 2005 conviction.
PETITION FOR REVIEW GRANTED; REMANDED.
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