Rendon v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BENEDICTO RENDON, 
Petitioner,
No. 05-77064
v.
 Agency No.
MICHAEL B. MUKASEY, Attorney A90-111-293
General,
Respondent.


BENEDICTO RENDON,  No. 05-77150
Petitioner, Agency No.
v. A90-111-293
MICHAEL B. MUKASEY, Attorney ORDER
General, AMENDING
Respondent. OPINION AND
 GRANTING THE
MOTION BY
PETITIONER FOR
CLARIFICATION
OR CORRECTION
OF DECISION
AND AMENDED
 OPINION

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

Argued and Submitted
November 7, 2007—San Francisco, California

Filed February 15, 2008
Amended March 19, 2008

2593
2594 RENDON v. MUKASEY
Before: Mary M. Schroeder, Cynthia Holcomb Hall, and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee
2596 RENDON v. MUKASEY

COUNSEL

Eileen R. Ridley, Michael A. Naranjo, Patrick T. Wong,
Foley & Lardner LLP, San Francisco, California, for the peti-
tioner.

Stephen J. Flynn, Melissa Neiman-Kelting, Office of Immi-
gration Litigation, Civil Division, Department of Justice,
Washington, DC, for the respondent.
 RENDON v. MUKASEY 2597
ORDER

The opinion, filed on February 15, 2008, slip opinion 1417,
is amended as follows:

At slip opinion 1422, first full paragraph, last sentence,
replace “Rendon then timely appealed.”, with “Rendon then
timely appealed to this court, and was appointed pro bono
counsel for the appeal.”

At slip opinion 1424, footnote 2, last sentence, replace “Re-
ndon’s counsel could have challenged the IJ’s decision on this
issue, but simply did not do so.”, with “Rendon’s previous
attorney could have challenged the IJ’s decision on this issue,
but simply did not do so.”

The Motion by Petitioner for Clarification or Correction of
Decision is GRANTED to the extent of these amendments.

OPINION

BYBEE, Circuit Judge:

In this case, we consider whether a state felony conviction
for possession with intent to sell a controlled substance con-
tains a trafficking element. We conclude that it does and
therefore it qualifies as an aggravated felony under the immi-
gration laws.

I. FACTS AND PROCEDURAL HISTORY

Benedicto Rendon is a native and citizen of Mexico who
has been a lawful permanent resident of the United States
since 1995. In April 1997, he was convicted of possession
with the intent to sell marijuana under Kansas law (the “Kan-
sas conviction”). See KAN. STAT. ANN. § 65-4163(a). Six years
2598 RENDON v. MUKASEY
later, in May 2003, Rendon was convicted in Utah for
attempting to possess cocaine in violation of UTAH CODE ANN.
§ 58-37-8(2)(a)(i) (the “Utah conviction”). The Department of
Homeland Security (“Department”) issued to Rendon a
Notice to Appear on April 8, 2005, which charged him with
removability under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien
who, after admission to the United States, has been convicted
of a controlled substance violation. The Notice to Appear
listed the Utah conviction as the basis for removal.

Rendon appeared pro se at his removal hearing before the
Immigration Judge (“IJ”). He conceded his removability but
applied for cancellation of removal, asylum, withholding of
removal, and protection under the Convention Against Tor-
ture (“CAT”).1 The IJ found Rendon to be removable under
§ 1227(a)(2)(B)(i) on the basis of the Utah conviction. The IJ
also found Rendon to be ineligible for any of the relief he
requested because his Kansas conviction was an aggravated
felony, see 8 U.S.C. § 1229b(a)(3), and as such was also a
“particularly serious crime,” see id. §§ 1158(b)(2)(A)(ii);
1158(b)(2)(B)(i); 1231(b)(3)(B)(ii).

Counsel represented Rendon during his appeal to the Board
of Immigration Appeals (“BIA”), where he argued that the IJ
erred in finding that the Kansas conviction was an aggravated
felony. He also argued, inexplicably, that the IJ had erred in
finding him removable on the basis of the Kansas conviction,
even though the government never relied on the Kansas con-
viction as a basis of removal. Rendon did not mention the
Utah conviction to the BIA or challenge that it was an appro-
priate basis for removal.

The BIA dismissed the appeal on December 6, 2005, con-
cluding that Rendon had failed to challenge the finding of
removability based on the Utah conviction, that Rendon had
conceded his removability, and that the Department had sub-
1
On appeal, Rendon does not pursue his CAT claim.
 RENDON v. MUKASEY 2599
mitted the conviction records to establish his removability.
Although the BIA acknowledged that KAN. STAT. ANN. § 65-
4163(a) criminalized conduct that is not an aggravated felony
as well as conduct that is an aggravated felony, it found that
it could determine from the records of the Kansas conviction
that Rendon had been convicted of possession with intent to
sell a controlled substance. The BIA agreed with the IJ that
such a conviction contained a trafficking element, which
made it an aggravated felony. Accordingly, the BIA sustained
the IJ’s finding that Rendon was ineligible for the relief he
requested. Rendon then timely appealed to this court, and was
appointed pro bono counsel for the appeal.

II. STANDARD OF REVIEW

We review the BIA’s determination of purely legal ques-
tions, such as whether a conviction is a controlled substance
offense that makes an alien removable under § 1227 and
whether a conviction is an aggravated felony, de novo. See
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.
2004).

III. DISCUSSION

A. Jurisdiction to Consider Removability Under § 1227

Rendon first argues that the BIA erred in affirming the IJ’s
finding that he was removable under 8 U.S.C. § 1227(a)(2)
(B)(i) for his Utah conviction of attempted possession of
cocaine. The government counters that Rendon did not raise
this argument before the BIA and we therefore are without
jurisdiction to hear this portion of his appeal. We agree with
the government.

[1] A court can only review a final order of removal if “the
alien has exhausted all administrative remedies available to
the alien as of right.” 8 U.S.C. § 1252(d)(1). An alien’s failure
to exhaust his administrative remedies deprives this court of
2600 RENDON v. MUKASEY
jurisdiction to hear the appeal. See Barron v. Ashcroft, 358
F.3d 674, 678 (9th Cir. 2004). Furthermore, “[a] petitioner
cannot satisfy the exhaustion requirement by making a gen-
eral challenge to the IJ’s decision, but, rather, must specify
which issues form the basis of the appeal.” Zara v. Ashcroft,
383 F.3d 927, 930 (9th Cir. 2004). Exhaustion of administra-
tive remedies at the BIA level is required to “prevent . . . ‘pre-
mature interference with the agency’s processes,’ ” and to
provide the BIA with notice of the issues that the petitioner
asserts were wrongly decided. Id. at 931 (quoting Liu v.
Waters, 55 F.3d 421, 424 (9th Cir. 1995)).

[2] In this case, the administrative record demonstrates that
Rendon did not “specify which issue[ ] form[s] the basis of
the appeal” and, at best, only made “a general challenge to the
IJ’s decision” concerning removability under § 1227. Id. at
930. The brief submitted to the BIA challenged only the find-
ing of removability on the ground that Rendon’s Kansas con-
viction was a controlled substance offense or an aggravated
felony—a ground for removal that the Department has never
put forward or relied upon. Indeed, Rendon’s brief to the BIA
never once mentioned the Utah conviction. The BIA is not
required to anticipate objections that Rendon utterly failed to
make, and we lack jurisdiction to address them here.

Rendon argues that he is permitted to make new arguments
on appeal in support of the claims that he made to the BIA,
citing to Lebron v. National Railroad Passenger Corp., 513
U.S. 374, 378-79 (1995). Because he argued to the BIA that
he was not removable under § 1227, he attempts to construe
his challenge to the Utah conviction as a new argument in
support of that same general claim. We find no support in
Lebron for this argument. The contention that the BIA erred
in finding him removable under the Utah conviction is most
appropriately categorized as a different claim, not a different
argument supporting the same claim. The Utah and Kansas
convictions are not related in any way and could each serve
 RENDON v. MUKASEY 2601
as an independent basis for removability. The Lebron rule
does not save Rendon’s forfeited claim.

[3] We find unavailing Rendon’s argument that any “waiv-
er” of his right to challenge the finding of removability based
on the Utah conviction was not considered and intelligent and
he was therefore denied due process. The “considered and
intelligent” requirement for waiver applies to an explicit
waiver of the right to appeal. See United States v. Pallares-
Galan, 359 F.3d 1088, 1095-96 (9th Cir. 2004). Rendon did
not waive his right to bring an appeal. The IJ gave Rendon
detailed instructions on how to file the appeal, and Rendon
had ample opportunity to present his arguments concerning
the Utah conviction to the BIA but simply failed even to men-
tion them. Rendon forfeited his challenge to the Utah convic-
tion; he did not waive it.2 See, e.g., United States v. Jacobo
Castillo, 496 F.3d 947, 952 n.1 (9th Cir. 2007) (en banc)
(“Waiver is ‘the intentional relinquishment or abandonment
of a known right,’ whereas forfeiture is ‘the failure to make
the timely assertion of [that] right.’ ” (alteration in original)
(quoting United States v. Olano, 507 U.S. 725, 733 (1993))).

[4] Because Rendon failed to exhaust his administrative
remedies in connection with the finding of removability based
on the Utah conviction, we do not have jurisdiction over this
issue. We dismiss that portion of his petition.
2
Rendon’s related argument that the IJ did not permit him to develop his
testimony regarding the Utah conviction at a stage of the proceeding when
he was proceeding pro se misses the point. By the time he appeared before
the BIA, Rendon was represented by counsel. Furthermore, the IJ’s order
very clearly identifies the Utah conviction as the basis for removal. Ren-
don’s previous attorney could have challenged the IJ’s decision on this
issue, but simply did not do so.
2602 RENDON v. MUKASEY
B. Possession with the Intent to Sell Marijuana as an
Aggravated Felony

Rendon next argues that the BIA and the IJ incorrectly
found his Kansas conviction to be an aggravated felony for
purposes of cancellation of removal, asylum, and withholding
of removal.3 As an applicant for cancellation of removal and
asylum, Rendon bears the burden of proving that he is eligible
for the discretionary relief he is seeking. See 8 U.S.C.
§§ 1158(b)(1)(B)(i); 1229a(c)(4)(A); Salviejo-Fernandez v.
Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). When “the
evidence indicates that one or more of the grounds for manda-
tory denial of the application for relief may apply, the alien
shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply.” 8 C.F.R.
§ 1240.8(d).

[5] An applicant for asylum or for cancellation of removal
is not eligible for these forms of relief if he has been con-
victed of an aggravated felony. See 8 U.S.C. §§ 1158(b)(2)
(A)(ii) (making individuals convicted of “a particularly seri-
ous crime [who] constitute[ ] a danger to the community of
the United States” ineligible for asylum); 1158(b)(2)(B)(i)
(classifying aggravated felonies as “particularly serious
crime[s]” for purposes of § 1158(b)(2)(A)(ii)); 1229b(a)(3)
(making aliens “convicted of any aggravated felony” ineligi-
ble for cancellation of removal). An applicant for withholding
of removal is ineligible for relief if he has been convicted of
3
Rendon only argued the aggravated felony issue before the BIA in con-
nection with cancellation of removal. Although he did not raise it in con-
nection with his asylum and withholding of removal claims, we may deem
it exhausted because the legal issue involved is identical for all three forms
of relief—if his Kansas conviction is an aggravated felony, he is not eligi-
ble for cancellation of removal, asylum, or withholding of removal—and
the BIA addressed the issue of whether the Kansas conviction is an aggra-
vated felony on the merits in its decision. See Sagermark v. INS, 767 F.2d
645, 648 (9th Cir. 1985) (finding a claim that the BIA addressed on the
merits to be exhausted for purposes of judicial review).
 RENDON v. MUKASEY 2603
certain types of aggravated felonies. See 8 U.S.C.
§ 1231(b)(3)(B)(ii) (making aliens who have “been convicted
by a final judgment of a particularly serious crime” ineligible
for withholding of removal); id. § 1231(b)(3)(B) (defining
“particularly serious crime” for purposes of withholding of
removal to include aggravated felonies with prison terms of
more than five years and giving discretion to the Attorney
General to determine that aggravated felonies with shorter
prison terms are also particularly serious crimes); Miguel-
Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (“We
hold that the Attorney General’s construction of § 1231(b)
(3)(B) as providing him with discretion to create a strong pre-
sumption that drug trafficking offenses are particularly seri-
ous crimes is not impermissible. Under Chevron, we therefore
defer to that construction.”); In re Y.L., 23 I. & N. Dec. 270,
274 (B.I.A. 2002) (establishing the presumption that “aggra-
vated felonies involving unlawful trafficking in controlled
substances constitute ‘particularly serious crimes’ ” under
§ 1231(b)(3)(B)(ii)). The first step in determining Rendon’s
eligibility for relief, therefore, is to decide whether Rendon’s
Kansas conviction is an aggravated felony.

In determining whether a state drug crime fits the general
definition of an aggravated felony, “we first make a categori-
cal comparison of the elements of the statute of conviction to
the generic definition, and decide whether the conduct pro-
scribed by [the statute] is broader than, and so does not cate-
gorically fall within, this generic definition.” Huerta-Guevara
v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003); see Taylor v.
United States, 495 U.S. 575, 602 (1990).

[6] The statutory definition of “aggravated felony” includes
felonies involving “illicit trafficking in a controlled substance
. . . , including a drug trafficking crime (as defined in section
924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). This statutory
definition has given rise to two possible routes for a state drug
felony to qualify as an aggravated felony. See In re Davis, 20
I. & N. Dec. 536, 541-43 (B.I.A. 1992). First, under the
2604 RENDON v. MUKASEY
phrase “illicit trafficking in a controlled substance,” a state
drug crime is an aggravated felony “if it contains a trafficking
element.” Salviejo-Fernandez, 455 F.3d at 1066. Second,
under the phrase “including a drug trafficking crime (as
defined in section 924(c) of Title 18),” a state drug crime is
an aggravated felony if it would be punishable as a felony
under the federal drug laws.4 See Lopez v. Gonzales, 127
S. Ct. 625, 630 (2006) (“The [Immigration and Nationality
Act] makes [an alien] guilty of an aggravated felony if he has
been convicted of ‘illicit trafficking in a controlled substance
. . . including,’ but not limited to, ‘a drug trafficking crime (as
defined in section 924(c) of Title 18).’ ”); id. at 633 (“[A]
state offense constitutes a ‘felony punishable under the Con-
trolled Substances Act’ only if it proscribes conduct punish-
able as a felony under that federal law.”). Thus, our court has
recognized that a state drug crime is also an “aggravated felo-
ny” in immigration law “if it would be punishable as a felony
under federal drug laws.” Salviejo-Fernandez, 455 F.3d at
1066; see 8 U.S.C. § 1101(a)(43)(B).

[7] Rendon’s conviction under KAN. STAT. ANN. § 65-
4163(a) is categorically an aggravated felony only if the fact
of his conviction necessarily means that he was convicted of
a crime satisfying either prong of the statutory definition, or,
in other words, that § 65-4163(a) only criminalizes conduct
that satisfies the definition of an aggravated felony. Section
65-4163(a) provides that “it shall be unlawful for any person
to sell, offer for sale or have in such person’s possession with
the intent to sell, deliver or distribute; cultivate; prescribe;
administer; deliver; distribute; or dispense” a controlled sub-
stance, including marijuana. As the government concedes,
§ 65-4163(a) criminalizes a solicitation offense, which this
court has determined does not constitute an aggravated felony
for purposes of immigration law. See United States v. Rivera-
Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001). Conviction
4
This second approach is sometimes referred to as the “hypothetical fed-
eral felony” rule. See, e.g., Cazarez-Gutierrez, 382 F.3d at 916.
 RENDON v. MUKASEY 2605
under § 65-4163(a) therefore does not necessarily mean that
Rendon committed an aggravated felony.

[8] When the statute of conviction does not categorically
qualify as an aggravated felony, we use the modified categori-
cal approach to decide whether the conduct for which the
alien was actually convicted qualifies as an aggravated felony.
See Huerta-Guevara, 321 F.3d at 887. When applying the
modified categorical approach to divisible statutes such as
§ 65-4163(a), we may consider “the state charging document,
a signed plea agreement, jury instructions, guilty pleas, tran-
scripts of a plea proceeding and the judgment” to determine
which portion of the divisible statute formed the basis of the
conviction. Hernandez-Martinez v. Ashcroft, 343 F.3d 1075,
1076 (9th Cir. 2003); see also 8 U.S.C. § 1229a(c)(3)(B).

[9] The administrative record in this case contains both the
state charging document and the judgment of the Kansas convic-
tion.5 The judgment lists the primary offense of conviction as
“POSSESSION OF MARIJUANA WITH INTENT TO
SELL.” The charging document alleges that Rendon “unlaw-
fully, intentionally, possess[ed] with intent to sell a controlled
substance, to-wit: marijuana.” These two documents clearly
indicate that Rendon was convicted of possession with intent
to sell a controlled substance, not one of the other possible
bases of conviction under the statute.6 The question thus
5
Rendon’s argument that these documents are unclear because they also
list a second count of conviction is without merit. The fact that Rendon
was also found guilty of violating a second Kansas statute in no way
diminishes the fact that he was also convicted of violating § 65-4163(a) or
that the documents clearly specify which portion of § 65-4163(a) he vio-
lated.
6
We reject as irrelevant Rendon’s argument that the IJ and BIA improp-
erly relied on his testimony to find that his Kansas conviction was an
aggravated felony, in violation of the rule in Tokatly v. Ashcroft, 371 F.3d
613 (9th Cir. 2004). In Tokatly, the immigration judge questioned a crime
victim about the facts of an alien’s burglary and attempted kidnapping
conviction to determine whether it was a crime of domestic violence. See
2606 RENDON v. MUKASEY
becomes whether conviction of possession of marijuana with
the intent to sell contains a trafficking element or would be
punishable as a felony under federal drug laws. See Salviejo-
Fernandez, 455 F.3d at 1066.

The statutes and case law provide little guidance on what
constitutes a “trafficking element.” An “aggravated felony” is
defined in part as “illicit trafficking in a controlled substance
. . . , including a drug trafficking crime.” 8 U.S.C.
§ 1101(a)(43)(B). However, the statute does not further define
“trafficking.” The Supreme Court has stated that “ordinarily
‘trafficking’ means some sort of commercial dealing.” Lopez
v. Gonzalez, 127 S. Ct. 625, 630 (2006). Our own court has
somewhat circuitously stated “that a drug offense with a traf-
ficking element is ‘illicit trafficking.’ ” Cazarez-Gutierrez,
382 F.3d at 910 n.5. The Third Circuit has provided a slightly
more concrete definition, stating that “[t]o contain a traffick-
ing element, a state felony must involve ‘the unlawful trading
or dealing of a controlled substance.’ ” Jeune v. Att’y Gen.,
476 F.3d 199, 202 (3d Cir. 2007) (quoting Gerbier v. Holmes,
280 F.3d 297, 305 (3d Cir. 2002)). The Sixth Circuit has fol-
lowed the same approach as the Third Circuit, but noted that
under the Third Circuit definition “[i]t is not clear whether
possession with intent to resell constitutes ‘unlawful trading
or dealing,’ and thus trafficking.” Garcia-Echaverria v.
United States, 376 F.3d 507, 513 (6th Cir. 2004) (quoting
Gerbier, 280 F.3d at 313).

[10] Nevertheless, we need not elaborate beyond the
Supreme Court’s statement in Lopez to determine that Ren-
don’s Kansas conviction contains a trafficking element. “Pos-

id. at 616. The Ninth Circuit held that the IJ erred by examining facts
behind the conviction. Id. at 623. Unlike the situation in Tokatly, in this
case the state charging document and the record of judgment, which the
IJ was permitted to consult under the modified categorical approach,
amply demonstrated which portion of the statute Rendon violated.
 RENDON v. MUKASEY 2607
session of marijuana with intent to sell” necessarily means
that Rendon possessed the marijuana with the intent to engage
in “some sort of commercial dealing.” Lopez, 127 S. Ct. at
630. We therefore hold that possession of a controlled sub-
stance with the intent to sell contains a trafficking element
and is an aggravated felony.7

[11] Because the Kansas conviction is an aggravated fel-
ony, Rendon is ineligible for cancellation of removal. 8
U.S.C. § 1229b(a)(3). An aggravated felony is considered to
be a particularly serious crime that makes Rendon ineligible
for asylum as well. Id. §§ 1158(b)(2)(A)(ii); 1158(b)(2)(B)(i).
Finally, an aggravated felony containing a drug trafficking
element is presumed to be a particularly serious crime which
would make Rendon ineligible for withholding of removal.
He has not presented any evidence to overcome this presump-
tion. See 8 U.S.C. § 1231(b)(3)(B); 1231(b)(3)(B)(ii); Miguel-
Miguel, 500 F.3d at 949. We therefore deny his petition for
review of the BIA’s determination that his Kansas conviction
is an aggravated felony, which makes him ineligible for the
relief he requested.

The petition for review is DISMISSED in part and
DENIED in part.

7
Because we conclude that Rendon’s Kansas conviction contains a traf-
ficking element and is an aggravated felony on that basis, we need not
reach the question of whether it would have qualified as a felony under the
federal drug laws.