Ruiz-Vidal v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE REYES RUIZ-VIDAL, 
Petitioner, No. 04-73812
v.
 Agency No.
A34-639-824
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
October 20, 2006—San Francisco, California

Filed January 18, 2007

Before: Robert R. Beezer, Diarmuid F. O’Scannlain,
Stephen S. Trott, Circuit Judges.

Opinion by Judge O’Scannlain

775
778 RUIZ-VIDAL v. GONZALES

COUNSEL

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, argued the cause for the petitioner and filed a
brief.

Jamie M. Dowd, Office of Immigration Litigation, U.S.
Department of Justice, Washington, D.C., argued the cause
for the respondent and filed a brief. Peter D. Keisler, Assistant
Attorney General, and David V. Bernal, Assistant Director,
were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Department of Homeland
Security has met its burden of proving that the petitioner is
removable from the United States as an alien convicted of a
law relating to a controlled substance.

I

A

Jose Ruiz-Vidal is a 49 year-old Mexican national who
legally immigrated to the United States in August 1976. On
October 26, 1998, Ruiz-Vidal pleaded nolo contendere in Cal-
 RUIZ-VIDAL v. GONZALES 779
ifornia Superior Court to one count of criminal possession of
methamphetamine, in violation of Cal. Health & Safety Code
§ 11377(a) (the “1998 conviction”). Thereafter, the govern-
ment sought to have Ruiz-Vidal removed from the United
States on the basis of this conviction. Though Ruiz-Vidal was
found removable by the immigration judge, he was granted
cancellation of removal pursuant to § 240(A) of the Immigra-
tion and Nationality Act (“INA”), 8 U.S.C. § 1229b(a), which
allows the Attorney General to cancel the removal of an alien
who is a permanent resident if that alien has been a permanent
resident for five years, has resided continuously in the United
States for seven years, and has not been convicted of an
aggravated felony.

On February 10, 2003, Ruiz-Vidal was charged in Califor-
nia Superior Court with one count of violating Cal. Health &
Safety Code § 11378 (possession of a controlled substance for
purpose of sale) and one count of violating Cal. Health &
Safety Code § 11379(a) (transportation of a controlled sub-
stance). The charging document alleged in Count I that Ruiz-
Vidal had committed a felony, “to wit: POSSESSION FOR
SALE OF A CONTROLLED SUBSTANCE, a violation of
Section 11378 of the HEALTH & SAFETY CODE of Cali-
fornia, in that [he] did unlawfully possess for purposes of sale
a controlled substance, to wit: METHAMPHETAMINE.”
Count II alleged that he had committed a felony, “to wit:
TRANSPORTATION OF A CONTROLLED SUBSTANCE,
a violation of Section 11379(a) of the HEALTH & SAFETY
CODE of California, in that [he] did unlawfully transport
METHAMPHETAMINE.” The record contains an abstract of
judgment which shows that on March 24, 2003, Ruiz-Vidal
pleaded guilty in the Superior Court of Alameda County to
one count of violating Cal. Health & Safety Code § 11377(a).
The crime listed on the abstract of conviction was “Possess
Controlled Substance” (the “2003 conviction”).

B

The Department of Homeland Security (“DHS”) com-
menced removal proceedings against Ruiz-Vidal on Decem-
780 RUIZ-VIDAL v. GONZALES
ber 16, 2003 with the issuance of a Notice to Appear, alleging
that he was subject to removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii). That section renders removable an alien
convicted of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(B), an offense relating to the illicit trafficking
in a controlled substance, as described in Section 102 of the
Controlled Substances Act (“CSA”), 21 U.S.C. § 802. On Jan-
uary 20, 2004, DHS added a second charge, alleging that
Ruiz-Vidal was subject to removal as an alien who, after
admission, had been convicted of a violation of a law relating
to a controlled substance, as that term is defined in the CSA.
8 U.S.C. § 1227(a)(2)(B)(i). For reasons unrelated to this
appeal, DHS eventually dropped the aggravated felony theory
and proceeded only upon the controlled substance theory.

During a February 4, 2004, hearing, the immigration judge
(“IJ”) admonished the government that it had not yet advised
the court as to what substance was involved in Ruiz-Vidal’s
2003 conviction. The IJ told the government that it would
have to prove that the drug involved was a controlled sub-
stance as defined in Section 102 of the CSA.1 The IJ issued
its oral decision on March 11, 2004. The IJ determined that
the convictions involved methamphetamine, and further stated
that “any substance listed in 11377 are [sic] included within
the federal ambit of Section 102 of the Controlled Substances
Act . . . So the Court does find that they are crimes involving
a controlled substance.” Accordingly, the IJ ordered that
Ruiz-Vidal be removed to Mexico.

C

Ruiz-Vidal appealed the decision of the IJ to the Board of
Immigration Appeals (“BIA” or “Board”). The principal argu-
ment raised by Ruiz-Vidal to the Board was that DHS had not
met its burden of proving that the substance which Ruiz-Vidal
1
At the hearing before the IJ, Ruiz-Vidal denied DHS’s allegations as
a matter of burden of proof.
 RUIZ-VIDAL v. GONZALES 781
pleaded guilty to possessing in 2003 was a controlled sub-
stance under Section 102 of the CSA. On July 22, 2004, the
BIA affirmed without opinion the IJ’s order that Ruiz-Vidal
be removed from the United States to Mexico. Thereafter,
Ruiz-Vidal filed a “Motion to Reconsider” with the BIA,
again raising only one argument: that DHS was required to
prove that the substance involved in the 2003 conviction was
a controlled substance, as defined by Section 102 of the CSA,
and that it had not done so. The Board rejected that argument,
ruling on August 24, 2004, that “[t]he respondent’s motion
fails to identify particular errors of fact or law in our prior
decision. Instead, he merely presents the same arguments
which we previously considered before rendering a decision
in this case. We decline to revisit them.”

Ruiz-Vidal filed a timely petition for review to this court.

II

A

Ruiz-Vidal first argues that his 1998 conviction cannot
serve as a predicate for his removal because he was granted
cancellation of removal for that conviction. He next argues
that because Cal. Health & Safety Code § 11377(a) punishes
the unauthorized possession of numerous substances not con-
trolled under federal law, DHS was required to establish that
the particular drug underlying the 2003 conviction is one that
is controlled under federal law. He further argues that the
2003 record of conviction is silent as to the drug he was con-
victed of possessing.

The government does not argue, either in its briefs or dur-
ing oral argument, that the record establishes unequivocally
that the substance that formed the basis for Ruiz-Vidal’s 2003
state conviction was controlled under federal law. Instead, the
government’s sole response on appeal is that this case should
be remanded to the BIA so that it has “an opportunity to
782 RUIZ-VIDAL v. GONZALES
decide [this] question and any related issues in the first
instance.”

B

The government must prove by “clear, unequivocal, and
convincing evidence that the facts alleged as grounds of
[removability] are true.” Gameros-Hernandez v. INS, 883
F.2d 839, 841 (9th Cir. 1989) (citing Woodby v. INS, 385 U.S.
276, 286 (1966)). In this case, Ruiz-Vidal was charged with
removability on the basis of his conviction of a controlled
substance offense. 8 U.S.C. § 1227(a)(2)(B)(i).2 That section
provides:

Any alien who at any time after admission has been
convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of
Title 21 [Section 102 of the CSA]), other than a sin-
gle offense involving possession for one’s own use
of 30 grams or less of marijuana, is deportable.

Id.

[1] The plain language of this statute requires the govern-
ment to prove that the substance underlying an alien’s state
law conviction for possession is one that is covered by Sec-
tion 102 of the CSA.3 This requirement has been both explic-
2
We review de novo whether a conviction is a controlled substances
offense that renders Ruiz-Vidal removable. Cazarez-Gutierrez v. Ashcroft,
382 F.3d 905, 909 (9th Cir. 2004).
3
The government concedes in its brief that this is true: “[T]he govern-
ment was required to show that Ruiz’s criminal conviction was for posses-
sion of a substance not only listed in the California statute under which he
was convicted, but also contained in section 102 of the Controlled Sub-
stances Act.” Although we need not accept the government’s concession
on a matter of law, United States v. Miller, 822 F.2d 828, 832 (9th Cir.
1987), as we explain below, we agree with its formulation of the issue.
 RUIZ-VIDAL v. GONZALES 783
itly and implicitly acknowledged in numerous decisions of the
BIA and this court. In Matter of Paulus, 11 I. & N. Dec. 274
(B.I.A. 1965), the Immigration and Naturalization Service
(“INS”) sought to remove an alien on the basis of a conviction
for violating Cal. Health & Safety Code § 11503. The infor-
mation charged that Paulus “did offer unlawfully to sell and
furnish a narcotic to a person and did then sell and deliver to
such person a substance and material in lieu of such narcotic.”
Id. at 274-75. The deportation proceedings were terminated
by a special inquiry officer, who reasoned that “the record
being silent as to the narcotic involved in the conviction it is
possible that the conviction involved a substance (such as
peyote) which is a narcotic under California law but is not
defined as a narcotic drug under federal law.” Id. at 275. The
INS appealed, and the Board dismissed the appeal, agreeing
with the special inquiry officer that because the record was
silent as to the narcotic involved, it could not be said for
immigration purposes that Paulus had been convicted of a law
relating to narcotic drugs.4 Id. The reasoning of Paulus has
been followed by the BIA in other cases as well. See Matter
of Mena, 17 I. & N. Dec. 38, 39 (B.I.A. 1979) (upholding an
order of deportation where the record of conviction revealed
“beyond doubt that the ‘controlled substance’ the respondent
had in his possession was heroin”); Matter of Hernandez-
Ponce, 19 I. & N. Dec. 613, 616 (B.I.A. 1988) (noting that
“[p]hencyclidine is listed as a controlled substance under the
Controlled Substances Act”).

[2] In Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005),
we implicitly acknowledged the requirement that the govern-
ment prove that the underlying substance is controlled by Sec-
tion 102 of the CSA. At issue in Medina was whether a
Nevada conviction for attempting to be under the influence of
THC-carboxylic acid rendered an alien removable under 8
U.S.C. § 1227(a)(2)(B)(I). Id. at 1065-67. The court focused
4
Although Matter of Paulus was construing the requirements of 8
U.S.C. § 1251, that section has now been transferred to 8 U.S.C. § 1227.
784 RUIZ-VIDAL v. GONZALES
on whether THC-carboxylic acid was akin to marijuana, and
therefore whether the exception for a conviction for one’s
own use of 30 grams or less of marijuana applied to the case.
Id. For our purposes, however, what is important about this
case is that both the majority and dissent acknowledged, at
least implicitly, the requirement that the substance be one that
is controlled under federal law. Id. at 1065 n.3 (“THC stands
for tetrahydrocannabinol, a controlled substance.”); id. at
1067 (Rymer, J., dissenting) (“THC is listed as a controlled
substance on both the Nevada schedule of controlled sub-
stances and the federal schedule—and it is listed separately
from marijuana.”); see also Cazarez-Gutierrez, 382 F.3d at
918; Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003) (consid-
ering whether a substance is controlled under both state and
federal law in the context of an aggravated felony for drug traf-
ficking).5 Thus, in order to prove removability, the govern-
ment must show that Ruiz-Vidal’s criminal conviction was for
possession of a substance that is not only listed under Califor-
nia law, but also contained in the federal schedules of the
CSA.

III

Applying these principles, we must determine whether
either of Ruiz-Vidal’s convictions may serve as a predicate
removal offense for purposes of 8 U.S.C. § 1227(a)(2)(B)(I).
5
We acknowledge that many of our decisions have broadly construed
the “relating to” language in 8 U.S.C. § 1227(a)(2)(B)(i). See, e.g., Luu-Le
v. INS, 224 F.3d 911 (9th Cir. 2000) (finding a conviction for possession
of drug paraphernalia to be a controlled substance offense); Johnson v.
INS, 971 F.2d 340, 342-43 (9th Cir. 1992) (finding an alien deportable for
guilty plea to “travel[ing] in interstate commerce . . . with the intention of
distributing the proceeds derived from the unlawful distribution of narcot-
ics and controlled substances”). Nonetheless, we believe that where a con-
viction for possession of a particular substance is at issue, 8 U.S.C.
§ 1227(a)(2)(B)(i) requires that at a minimum the substance be listed on
the federal schedules. To hold otherwise would be to read out of the stat-
ute the explicit reference to Section 102 of the CSA.
 RUIZ-VIDAL v. GONZALES 785
A

[3] We first consider whether Ruiz-Vidal’s 1998 conviction
may serve as a predicate removal offense. We need not be
detained long by this inquiry. Ruiz-Vidal previously was
found removable on the basis of this conviction, but was
granted cancellation of removal. 8 U.S.C. § 1229b. The gov-
ernment is not entitled to a second bite at the apple; it may not
use this conviction again as a predicate removal offense.

B

We next consider whether Ruiz-Vidal’s 2003 conviction
may serve as the predicate offense for his removal as an alien
convicted of a law relating to a controlled substance.

1

[4] We note that California law regulates the possession
and sale of numerous substances that are not similarly regu-
lated by the CSA. For instance, the possession of apomor-
phine is specifically excluded from Schedule II of the CSA,
see 21 C.F.R. § 1308.12(b)(1), but California’s Schedule II
specifically includes it. See Cal. Health & Safety
§ 11055(b)(1)(G).6 Cal. Health & Safety Code § 11033 pun-
ishes the possession of optical and geometrical isomers; the
CSA, in contrast, generally punishes the possession of optical
isomers alone. 21 C.F.R. § 1300.01(b)(21). We must, there-
fore, conclude that the IJ was in error in stating that “any sub-
stance listed in 11377 are [sic] included within the federal
ambit of Section 102 of the Controlled Substances Act[;]” the
simple fact of a conviction under Cal. Health & Safety Code
§ 11377 is insufficient. We next look to the record of convic-
6
Other substances such as Androisoxazole, Bolandiol, Boldenone,
Oxymestrone, Norbolethone, Quinbolone, Stanozolol, and Stebnolone are
punishable only under California law. See Cal. Health & Safety Code
§ 11056(f).
786 RUIZ-VIDAL v. GONZALES
tion. See Tokatly v. Ashcroft, 371 F.3d 613, 620, 622 n.8 (9th
Cir. 2004).

2

[5] In undertaking an analysis of the record of conviction,
we “may consider the charging documents in conjunction
with the plea agreement, the transcript of a plea proceeding,
or the judgment to determine whether the defendant pled
guilty to the elements of the generic crime.” United States v.
Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (citing
United States v. Bonat, 106 F.3d 1472, 1476-78 (9th Cir.
1997)). Although charging papers alone are never sufficient,
United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993),
“charging papers may be considered in combination with a
signed plea agreement,” Corona-Sanchez, 291 F.3d at 1211
(citing United States v. Sweeten, 933 F.2d 765, 767, 769-70
(9th Cir. 1991).

[6] The administrative record in this case contains only two
documents relating to Ruiz-Vidal’s 2003 conviction. The first
charges Ruiz-Vidal with two crimes: (1) a violation of Cal.
Health & Safety Code § 11378 (possession for purpose of
sale); and (2) a violation of Cal. Health & Safety Code
§ 11379(a) (unlawful transportation). In both counts, the
charging document lists the controlled substance underlying
the conviction as methamphetamine. The other document in
the record is an abstract of judgment which states that Ruiz-
Vidal pleaded nolo contendere to a single charge of violating
Cal. Health & Safety Code § 11377(a). The crime is described
as “Possess Controlled Substance.”

We were confronted with a similar situation in Martinez-
Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). In that
case, only three documents were before the court: (1) an
information charging the defendant with second-degree rob-
bery in violation of § 211 of the California Penal Code; (2) a
minute order memorializing a probation violation hearing;
 RUIZ-VIDAL v. GONZALES 787
and (3) an abstract of judgment documenting the defendant’s
plea to a violation of § 487(c) of the California Penal Code.
Id. at 1028-29. We held that based upon those documents, it
was not possible to determine whether the defendant had
pleaded guilty to all elements of a theft offense, as generically
defined. We reasoned that because the defendant had pleaded
guilty to an offense different from the one charged in the
information, “[t]he information . . . is not the sort of ‘generi-
cally limited charging document’ indicating that the plea nec-
essarily rested on the fact identifying the burglary as a generic
theft offense as defined in Corona-Sanchez.” Id. at 1029.

[7] We believe Martinez-Perez to be controlling in this sit-
uation. As in that case, Ruiz-Vidal did not plead guilty to an
offense that was charged in the information. Here also, the
administrative record contains no plea agreement, plea collo-
quy, or any other document that would reveal the factual basis
for Ruiz-Vidal’s 2003 conviction. Id. (citing Parilla v. Gon-
zales, 414 F.3d 1038, 1044 (9th Cir. 2005)); see also Shepard
v. United States, 544 U.S. 13, 24 (2005) (adhering to Taylor’s
“demanding requirement” that the record of conviction con-
sist only of documents showing that a plea “necessarily
admitted” facts equating to the generic crime). Under
Martinez-Perez, there is simply no way for us to connect the
references to methamphetamine in the charging document
with the conviction under Cal. Health & Safety Code
§ 11377(a).

[8] We are thus left only to speculate as to the nature of the
substance. But speculation is not enough. “[W]hen the docu-
ments that we may consult under the ‘modified’ approach are
insufficient to establish that the offense the petitioner commit-
ted qualifies as a basis for removal . . . we are compelled to
hold that the government has not met its burden of proving
that the conduct of which the defendant was convicted consti-
tutes a predicate offense, and the conviction may not be used
as a basis for removal.” Tokatly, 371 F.3d at 620-21. We
therefore conclude that DHS has failed to establish unequivo-
788 RUIZ-VIDAL v. GONZALES
cally that the particular substance which Ruiz-Vidal was con-
victed of possessing in 2003 is a controlled substance as
defined in section 102 of the Controlled Substances Act.

C

[9] A final word is in order about the government’s argu-
ment that a remand is appropriate in this case under INS v.
Ventura, 537 U.S. 12 (2002). In Ventura, the Supreme Court
cautioned that, generally speaking, “a court of appeals should
remand a case to an agency for decision of a matter that stat-
utes place primarily in agency hands.” Id. at 16. A remand is
especially appropriate where “[t]he agency can bring its
expertise to bear upon the matter; it can evaluate the evidence;
it can make an initial determination; and, in doing so, it can,
through informed discussion and analysis, help a court later
determine whether its decision exceeds the leeway that the
law provides.” Id. at 17.

But the government’s Ventura argument is misplaced in
numerous respects. First, as we recently explained in
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006),
Ventura has nothing to do with a case such as this. While in
Ventura new evidence about changed country conditions
could have been introduced on remand, here the record on
remand would consist only of those documents already in the
record. Id. at 1133. And the evidence in the record either sup-
ports the finding of removability or it does not. No further
agency expertise is required to make that determination.

[10] We also think Ventura inapplicable because the record
is clear that the disputed issue in this case was raised not
once, but twice before the Board, which deemed the evidence
in favor of removability to be sufficient. See Fernandez-Ruiz,
466 F.3d at 1133-34 (“Ventura undeniably involved an issue
the BIA had not considered . . . . [B]y contrast, whether the
offense underlying Fernandez-Ruiz’s 2003 conviction was a
crime of domestic violence under federal law is an issue the
 RUIZ-VIDAL v. GONZALES 789
BIA has already addressed . . .”). After his initial appeal from
the IJ’s decision was affirmed without opinion, Ruiz-Vidal
filed a Motion to Reconsider which was identical in nearly all
respects to the brief filed in this court. In response to this
Motion, the Board found that “respondent’s motion fails to
identify particular errors of fact or law in our prior decision.
Instead, he merely presents the same arguments which we
previously considered before rendering a decision in this case.
We decline to revisit them.” The Board therefore has ruled on
the issue in the first instance and a remand for reconsideration
would be both unnecessary and inappropriate.

IV

The judicially noticeable documents in this case fail to sup-
port the BIA’s determination that Ruiz-Vidal is removable as
an alien convicted of a law related to a controlled substances
offense. We grant the petition for review, reverse the order of
removal, and remand the matter to the Board for disposition
consistent with this opinion.

PETITION FOR REVIEW GRANTED.