S-Yong v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHEUK FUNG S-YONG,  No. 07-70619
Plaintiff-Appellant, Agency No.
v. A35-747-485
ERIC HOLDER JR., Attorney  ORDER
General, AMENDING
Defendant-Appellee. OPINION AND
AMENDED
 OPINION

On Petition for Review from the
Board of Immigration Appeals

Argued and Submitted
November 21, 2008—Pasadena, California

Filed August 25, 2009
Amended March 9, 2010

Before: Richard D. Cudahy,* Harry Pregerson and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Cudahy

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.

4247
4250 S-YONG v. HOLDER
COUNSEL

Kathryn M. Davis, Pasadena, California, for the petitioner.

Gregory G. Katsas, Mary Jane Candaux, and Aimee J. Freder-
ickson, U.S. Department of Justice, Washington, D.C., for the
Attorney General.

ORDER

The Opinion filed on August 25, 2009, and appearing at
578 F.3d 1169 (9th Cir. 2009), is amended as follows:

At page 1174, at the end of the paragraph that reads “We
have previously found that California law regulates the pos-
session and sale of many substances . . . , and we must look
further to demonstrate whether Yong’s conviction renders
him removable[,]” footnote “5” is inserted. The text of the
footnote reads:

5 Although it is not entirely clear from our current
precedents when the modified categorical approach
may be employed if the particular statute is broader
than the generic offense, see United States v.
Estrada-Espinoza, 546 F.3d 1147, 1159-60 (9th Cir.
2008) (en banc), we have at least implicitly treated
similar provisions of the California Health & Safety
Code as sufficiently “divisible” into separate crimes
so as to apply the modified categorical approach, see
Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1128-29
(9th Cir. 2007), and accordingly we continue to do
so here.

At page 1176, in the first paragraph after the block quota-
tion, the following is deleted: “, much less determined was the
type of document that could be considered under Taylor”
 S-YONG v. HOLDER 4251
At page 1176, the paragraph that begins “This is woefully
insufficient[,]” is deleted. In its place, the following is substi-
tuted:

This is woefully insufficient. Because there is no
document in the record that proves Yong was con-
victed under Section 11378, we therefore GRANT
Yong’s petition and REVERSE the order of removal.

OPINION

CUDAHY, Circuit Judge:

The question presented is whether the Department of
Homeland Security has met its burden of proving that the
petitioner is removable from the United States as an alien con-
victed of a law relating to a controlled substance. A second
question is whether the petitioner has met his burden of prov-
ing he is eligible for relief from removal. Because there is no
record documentation supporting the order of removal, or the
ruling that the petitioner was barred from relief, we find for
the petitioner in answer to both questions. Yet only the first
answer is necessary to grant his petition for review and
reverse the removal order. (Likewise, we need not address the
petitioner’s due process claims.)

I

Cheuk Fung S-Yong, a native and citizen of Hong Kong
(now the People’s Republic of China) has been a lawful per-
manent resident of the United States since 1978, when he
came to this country with his parents as a nine-year-old. In
July 2006, the Department of Homeland Security issued Yong
a notice to appear that charged him as removable from the
United States because he was an alien who had been con-
victed of both (1) a “controlled substance offense” under 8
4252 S-YONG v. HOLDER
U.S.C. § 1227(a)(2)(B)(i),1 and (2) an “aggravated felony”
under 8 U.S.C. § 1227(a)(2)(A)(iii).2 The notice specified
only one prior offense, a September 21, 2005 conviction for
the “Sale or Transportation of Controlled Substance, in viola-
tion of Section 11379(a) of the California Health and Safety
Code.”3 The government argued that the Section 11379 con-
viction constituted both a controlled substance offense and an
aggravated felony under the Immigration and Nationality Act
(INA). The notice did not specify what kind of controlled sub-
stance gave rise to the Section 11379 conviction or whether
the offense involved a sale.

Yong appeared at an initial hearing pro se but indicated that
he wished to hire a lawyer. The immigration judge continued
the hearing four times to allow Yong to find an attorney, but
on October 25, 2006, three months after the initial hearing,
Yong elected to proceed without counsel. The immigration
judge then indicated that he would take a “pleading” from
Yong and determine what issues would be raised in the case.

After preliminary questions confirming Yong’s name and
citizenship status, the immigration judge questioned Yong
about the charges in the government’s notice to appear to
determine whether Yong was removable based on those
1
Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act (INA)
states in relevant part: “Any alien who at any time after admission has
been convicted of a violation of . . . 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) . . . is deportable.”
2
Section 1227(a)(2)(A)(iii) states: “Any alien who is convicted of an
aggravated felony at any time after admission is deportable.”
3
Cal. Health & Safety Code § 11379(a), entitled “transportation, sale,
furnishing, etc.; punishment,” states: “every person who transports,
imports into this state, sells, furnishes, administers, or gives away, or
offers to transport, import into this state, sell, furnish, administer, or give
away, or attempts to import into this state or transport any controlled sub-
stance . . . shall be punished by imprisonment in the state prison for a
period of two, three or four years.”
 S-YONG v. HOLDER 4253
charges. In particular, the immigration judge asked whether
Yong had been convicted of the Section 11379 charge men-
tioned in the notice and confined for two years. Yong con-
firmed that he had been. The immigration judge then asked to
look at the government’s “conviction document.” Before
reviewing that document, however, the immigration judge
asked Yong whether he had any fear of being returned to
China or any reason to believe he would be subjected to tor-
ture there if he were removed from the United States. Yong
answered no to both questions.

The immigration judge then indicated on the record that the
government attorney “has handed me a conviction record.”
Without further identifying the document or confirming that
it related to the Section 11379 conviction charged in the
notice to appear, the immigration judge described the govern-
ment’s document as follows:

I’m just verifying that we have a good document
here. It shows you had two convictions, a Count 3
and Count 4. Count 3 would appear to be—let me
read it for a second here. It’s basically a conspiracy
charge, that you and others conspired to commit the
crime in [sic] sale or transportation of a controlled
substance. And then it sets forth the overt acts that
led to that. Count 4 is written in that you conspired
to commit the—some other crimes with others. The
question we have to look at is whether this Count 3
falls into that category. Basically, what this charges
you with is sale or transportation. But the actual
overt acts that you were charged with show that you
must negotiated [sic] it and actually handed over 100
MDMA tablets, and—to the parties . . . That you
actually handed a hundred tablets of the MDMA . . .
to that person in the other car.

Yong conceded the accuracy of this description, as recited by
the immigration judge, but argued that “that was not a sale.
4254 S-YONG v. HOLDER
I wasn’t selling it.” The immigration judge agreed there was
no evidence in the document of a sale, and on that basis found
that the conviction did not support the government’s charge
that Yong was removable for having committed an aggravated
felony. The immigration judge sustained the government’s
other basis for removal, however, that Yong had been con-
victed of a controlled substance offense under Section
1227(a)(2)(B)(i) of the INA. The government then accepted
the court’s ruling that the Section 11379 conviction was not
an aggravated felony and did not raise any other convictions
that might qualify. The government’s attorney did not move
the unidentified document into the record, nor was any more
said about it at the hearing.

The immigration judge then asked whether Yong had any
other convictions. Yong said that he did. The immigration
judge asked him to elaborate, and Yong explained that he had
“another ecsta[s]y conviction . . . for possession for sales. . .
. But they gave me a—less than a year.” The immigration
judge then explained why he was asking Yong about other
convictions: “[I]f you actually have a possession for sale
charge, even if they gave you straight probation on it, that will
be an aggravated felony. It would bar you from certain types
of relief.” The immigration judge continued,

You may not be deportable for it right now because
they haven’t charged it, but it would bar you from
cancellation of removal for lawful permanent resi-
dents, and it would bar you from asylum. And it
might even bar you from a type of Torture Conven-
tion protection. But you haven’t indicated any threat
in those areas. Do you understand?

Yong said he did. The immigration judge then asked the gov-
ernment’s attorney whether he had a “rap sheet” on Yong, and
when the attorney confirmed that he did, the immigration
judge enlisted Yong’s help finding the possession for sales
conviction on the rap sheet. When the government’s attorney
 S-YONG v. HOLDER 4255
found the conviction, he said, “This is plainly different from
the Orange County conviction, which was really the subject
of our charge.” The attorney went on to describe the convic-
tion included in the rap sheet.

Apparently, on July 28th of 2000, the defendant pled
guilty to Count 1 of the charges against him at that
time, which was a felony charge of possession of a
controlled substance for sale under Section 11378 of
the California Health and Safety Code. And he was
convicted of that.

After confirming with Yong that this was the additional con-
viction that Yong had mentioned, the immigration judge con-
cluded, “That is an aggravated felony. . . . Trafficking offense.
So even though I haven’t sustained the charge of deportability
based on the 2005 conviction being an aggravated felony, that
2000 conviction would bar you from those forms of relief I
told you about.” The government’s attorney did not move the
rap sheet into the record, nor was any more said about it at the
hearing.

The immigration judge concluded the hearing by explain-
ing that “based on what we’ve discussed, I will find that you
are subject to removal today on the controlled substance
ground. And based upon the discussions we’ve had, your July
28th, 2000 conviction for possession for sale, coupled with
what you’ve told me, you don’t qualify for any relief.”

The immigration judge’s written order, entered the same
day, stated that “[u]pon the basis of respondent’s admissions,
I have determined that the respondent is subject to removal on
the charge(s) in the Notice to Appear.” The order made no
mention at all of the Section 11378 conviction, however,
which Yong had helped identify in the rap sheet. Nor did the
order explain that the immigration judge had found Yong
ineligible for relief from removal based on his conclusion that
the Section 11378 conviction was an aggravated felony.
4256 S-YONG v. HOLDER
Instead, the order stated only that “Respondent has made no
application for relief from removal.”

Yong appealed the immigration judge’s decision to the
Board, which affirmed the immigration judge’s order of
removal without an opinion. Yong then appealed to this court,
arguing that there was insufficient documentation in the
administrative record to sustain an order of removal or to find
that he was ineligible for relief from removal. We agree. We
therefore grant the petition for review and reverse the removal
order.

II

A

Our jurisdiction rests on 8 U.S.C. § 1252. Section
1252(a)(2)(C) restricts review of final orders of removal
based on certain enumerated crimes, including controlled sub-
stance offenses. 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(B).
Nevertheless, we retain jurisdiction to review removal orders
based on such crimes where the petition raises “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). The
government draws our attention to this limited power of
review, but does not appear to argue that Yong’s claims are
foreclosed on this basis. This is wise. Yong clearly raises both
constitutional and legal claims. We also have jurisdiction to
determine our jurisdiction by deciding whether Yong is
removable based on the criminal conviction relied upon by
the immigration judge. Huerta-Guevara v. Ashcroft, 321 F.3d
883, 885 (9th Cir. 2003) (citations omitted). The government
argues, however, that we lack jurisdiction to hear Yong’s
claims because he failed to exhaust his remedies below. In
particular, the government argues that Yong failed to raise
either his removal or his due process claims in his appeal brief
to the Board. The government asserts that the only argument
Yong raised below is that it was improper for the immigration
judge to rely on the Section 11378 conviction to find Yong
 S-YONG v. HOLDER 4257
ineligible for relief from removal, because that conviction was
not charged in the notice to appear nor supported by docu-
ments in the record.

Fairly read, Yong’s pro se brief to the Board raised each of
the claims he now presents to us. With respect to removabil-
ity, Yong argued that “[t]he only evidence the government
proffers is an abstract of judgment establishing that respon-
dent was convicted of the generic crime of sale and transpor-
tation of controlled substance California penal code § 11379
[sic].” This argument put the government on notice that Yong
was challenging his removal because the record evidence did
not support the conclusion that the Section 11379 conviction
was a controlled substance offense under the INA. Likewise,
Yong argued in his brief to the Board that, because the Sec-
tion 11378 offense was not charged in the notice to appear,
there was insufficient proof that he committed an aggravated
felony that would bar relief from removal. The government
concedes that Yong has preserved his claim for relief. The
government also concedes that “Yong also appears to use
§ 11378 and § 11379 interchangeably” in his brief to the
Board. The government seems to suggest by this that Yong
was inattentive to the correct statutory section numbers and at
times used the number 11379 even though he meant to chal-
lenge only the immigration judge’s reliance on the 11378 con-
viction to find that he was barred from relief. Yet Yong also
mentioned both convictions—by their separate section num-
bers—together in the same sentence and argued that the gov-
ernment failed to produce any documentation to support a
conviction for either offense. We reject any suggestion that
Yong’s repeated reference to both sections of the California
penal code was somehow fortuitous. Though his brief to the
Board is inartful, Yong has challenged the immigration
judge’s reliance on both convictions and therefore has
exhausted both his removal claim and his claim for relief from
removal, and so we reach the merits of those claims.4
4
Yong’s due process claims were also likely adequately preserved, but
because we do not reach those claims we need not decide whether they
were exhausted below.
4258 S-YONG v. HOLDER
B

[1] The immigration judge concluded that Yong was
removable because his Section 11379 conviction was a “con-
trolled substance offense” under 8 U.S.C. § 1227(a)(2)(B)(i).
We review this conclusion de novo. Cazarez-Gutierrez v.
Ashcroft, 382 F.3d 905, 909 (9th Cir. 2004). The government
bears the burden of proving by “clear, unequivocal, and con-
vincing evidence that the facts alleged as grounds for [remov-
ability] are true.” Gameros-Hernandez v. INS, 883 F.2d 839,
841 (9th Cir. 1989) (citation omitted). Again, Section
1227(a)(2)(B)(i) 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 Controlled Substances
Act]), other than a single offense involving posses-
sion for one’s own use of 30 grams or less of mari-
juana, is deportable.

We have repeatedly held that the plain language of this statute
requires the government to prove that the substance underly-
ing an alien’s state law conviction for possession is one that
is covered by Section 102 of the CSA. See, e.g., Ruiz-Vidal
v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007) (discuss-
ing cases). Thus, “to prove removability, the government
must show that [petitioner’s] criminal conviction was for pos-
session of a substance that is not only listed under California
law, but also contained in the federal schedules of the CSA.”
Id. at 1077-78. Under the “categorical approach” announced
in Taylor v. United States, 495 U.S. 575 (1990), if the “full
range of conduct” covered by the state statute falls within the
scope of the INA provision, then the petitioner’s conviction
is “categorically a removable offense.” Alanis-Alvarado v.
Holder, 558 F.3d 833, 836 (9th Cir. 2009). If not, we move
 S-YONG v. HOLDER 4259
on to a “modified categorical” approach in which we may
consider a limited number of judicially noticeable documents
to determine whether the defendant was in fact convicted of
a removable offense. Parrilla v. Gonzales, 414 F.3d 1038,
1042 (9th Cir. 2005).

[2] We have previously found that California law regulates
the possession and sale of many substances that are not regu-
lated by the CSA, Ruiz-Vidal, 473 F.3d at 1078, and therefore
that Section 11379 is “categorically broader” than Section
1227(a)(2)(B)(i) of the INA. See Sandoval-Lua v. Gonzales,
499 F.3d 1121, 1124 (9th Cir. 2007). This means that a con-
viction under Section 11379 does not necessarily entail a
“controlled substance offense” under Section 1227(a)(2)(B)(i)
of the immigration statute, and we must look further to deter-
mine whether Yong’s conviction renders him removable.5

[3] In doing so, however, we are limited to “a narrow, spec-
ified set of documents that are part of the record of convic-
tion.” Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004).
That is to say, the modified categorical approach hews to the
categorical. It is a narrow exception. The set of noticeable
documents includes the indictment (but only in conjunction
with a signed plea agreement), the judgment of conviction,
the minute order fully documenting the judgment, jury
instructions, a signed guilty plea or the transcript from the
plea proceedings. United States v. Snellenberger, 548 F.3d
699, 702 (9th Cir. 2008) (en banc); Ruiz-Vidal, 473 F.3d at
1078 (citations omitted); Tokatly, 371 F.3d at 620.
5
Although it is not entirely clear from our current precedents when the
modified categorical approach may be employed if the particular statute
is broader than the generic offense, see United States v. Estrada-Espinoza,
546 F.3d 1147, 1159-60 (9th Cir. 2008) (en banc), we have at least implic-
itly treated similar provisions of the California Health & Safety Code as
sufficiently “divisible” into separate crimes so as to apply the modified
categorical approach, see Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1128-
29 (9th Cir. 2007), and accordingly we continue to do so here.
4260 S-YONG v. HOLDER
[4] Throughout the modified categorical approach cases
analyzing whether particular kinds of documents may be con-
sidered, we have insisted that the point of the exercise is to
determine reliably, and without the distractions associated
with relitigating the underlying criminal case, whether the
defendant was convicted of the elements of the generic crime
as described in the immigration statute. Tokatly, 371 F.3d at
621; see also Shepard v. United States, 544 U.S. 13, 23
(2005). To this end, we have strictly prohibited immigration
judges from looking behind the documentary record of con-
viction to the underlying facts of a prior offense. Tokatly, 371
F.3d at 622 (“We are required to determine whether Tokatly
has been ‘convicted of a crime of domestic violence’—not
whether he in fact committed such a crime.”). We have also
rejected the argument the government makes here, that we
should make an exception to the “narrow, carefully-
circumscribed scope of Taylor inquiries” to permit consider-
ation of an alien’s admissions to the immigration judge
regarding the nature of his criminal conduct. Id. at 623.

[5] Here, the immigration judge relied solely on Yong’s
judicial admissions and an unidentified “conviction docu-
ment” to determine that Yong’s Section 11379 conviction was
a controlled substance offense under the INA. There are no
documents of conviction in the administrative record—
indeed, there are no documents at all in the record, other than
the government’s two-page notice to appear—and it is impos-
sible to tell from the hearing transcript the exact nature of the
document the immigration judge relied upon. And though it
may be tempting to assume that the government’s proffered
document meets Taylor‘s strict standards, doing so would
undercut the basis for that decision, which, again, is to deter-
mine the nature of the prior conviction with certainty and
without collateral litigation. On this record, we have no way
to review whether the document established with certainty
that Yong’s conviction was a controlled substance offense
under the INA. The so-called conviction document might
have been a newspaper clipping from the crime section, or
 S-YONG v. HOLDER 4261
even something typed up on Department of Homeland Secur-
ity stationery. We do not mean to impugn the immigration
judge or the government’s attorney in this case, but only to
suggest that aside from preventing our review, the record in
this case allows—perhaps invites—that kind of obfuscation.
Supporting this conclusion is the fact that the government
never supplemented the record with the mysterious “convic-
tion document,” nor does the government’s attorney argue
that the document was of the type that we may consider.
Given the clarity of the case law on this subject, we can only
assume this is because it was not. Or perhaps the govern-
ment’s attorney on appeal simply does not know. What is
clear is that the government offers no explanation for this
omission and, instead, argues that Yong’s admissions alone
constituted clear, convincing and unequivocal evidence that
he was removable. Our case law is explicitly to the contrary,
Tokatly, 371 F.3d at 623 (“[T]he IJ’s consideration of the vic-
tim’s testimony violated ‘the settled proposition’ that an
Immigration Judge cannot adjudicate guilt or innocence.”)
(quoting In re Pichardo-Sufren, 21 I. & N. Dec. 330, 335
(BIA 1996)); Huerta-Guevara, 321 F.3d at 888 (“[E]ven if
the facts as represented in Huerta’s brief are taken as a true
account of what she did, it is not clear that these are the ele-
ments to which she pled guilty.”), and none of the govern-
ment’s cited cases suggests anything different. In each, the
immigration judge was either presented with reliable docu-
ments of conviction in addition to the alien’s judicial admis-
sions, Barragan-Lopez v. Mukasey, 508 F.3d 899, 905 (9th
Cir. 2007), or the issue was whether substantial evidence sup-
ported the immigration judge’s own factual conclusions, not
whether the record of prior conviction adequately supported
removal under the modified categorical approach, Young Sun
Shin v. Mukasey, 519 F.3d 901, 906 (9th Cir. 2008), op. with-
drawn and superseded on rehr’g in part by Young Sun Shin v.
Mukasey, 547 F.3d 1019 (9th Cir. 2008). In Schroeck v. Gon-
zales, 429 F.3d 947 (10th Cir. 2005), which is not binding on
us, the question whether an immigration judge may rely on a
4262 S-YONG v. HOLDER
petitioner’s admissions under the modified categorical
approach likewise was not addressed. None of the govern-
ment’s cases makes any mention of Tokatly or its clear rule
that immigration judges are prohibited from relying on an
alien’s judicial admissions. See Tokatly, 371 F.3d at 623:

Applying Taylor, it is clear that the IJ was not enti-
tled “to examine the facts behind the conviction”
(except to the extent permitted by the modified cate-
gorical approach) or to consider the testimony of the
crime victim. Indeed, the IJ’s examination of the vic-
tim provides an example of the very fact-finding pro-
cess that both the courts and the Board have deemed
inappropriate and sought to avoid by strict adherence
to the categorical and modified categorical method-
ology. In this respect, the IJ’s consideration of the
victim’s testimony violated “the settled proposition”
that an Immigration Judge cannot adjudicate guilt or
innocence. Pichardo, 21 I & N Dec. at 335.

[6] The immigration judge’s finding that Yong was barred
from seeking relief from removal is flawed for the same rea-
sons. The immigration judge found that Yong was ineligible
for relief from removal because his Section 11378 conviction
was an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
But again, the purported Section 11378 conviction is not sup-
ported by any record evidence and was not even charged in
the government’s notice to appear. The immigration judge
relied on Yong’s admissions, coupled with the government
attorney’s assessment, which was based on a “rap sheet” that
the immigration judge never even looked at. Based on this
extra-record document and statements by Yong and the gov-
ernment’s attorney, the immigration judge concluded that
Yong had been convicted of possession for sale of a con-
trolled substance that would constitute an aggravated felony
under the INA.

[7] This is woefully insufficient. Because there is no docu-
ment in the record that proves Yong was convicted under Sec-
 S-YONG v. HOLDER 4263
tion 11378, we therefore GRANT Yong’s petition and
REVERSE the order of removal.