FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOE MEDINA-RODRIGUEZ, AKA No. 19-72681
Eloy Medina-Rodriguez, AKA Noe
Rodrigues-Medina, Agency No.
Petitioner, A041-848-597
v.
OPINION
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 9, 2020
Pasadena, California
Filed October 30, 2020
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and KATHLEEN CARDONE, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2 MEDINA-RODRIGUEZ V. BARR
SUMMARY **
Immigration
Denying Noe Medina-Rodriguez’s petition for review of
a decision of the Board of Immigration Appeals, the panel
held that: 1) in determining whether a state conviction is a
categorical match for its federal counterpart, the proper point
of comparison are the two drug schedules in effect at the time
of the conviction; 2) Medina-Rodriguez’s 2011 conviction
for possession for sale of marijuana, in violation of
California Health & Safety Code § 11359, was a drug
trafficking aggravated felony because the state and federal
schedules defined marijuana the same way at the time of his
conviction; and 3) substantial evidence supported the
agency’s denial of deferral of removal under the Convention
Against Torture (CAT).
The panel concluded that it was bound by Roman-Suaste
v. Holder, 766 F.3d 1035 (9th Cir. 2014), in which the court
held that a conviction under § 11359 was a drug trafficking
aggravated felony because § 11359 was a categorial match
to a federal marijuana offense under 21 U.S.C. § 841(a)(1).
The panel also concluded that, even if it were not bound,
neither of the two California decisions Medina-Rodriguez
relied on supported his argument that Roman-Suaste should
be considered en banc.
Medina-Rodriguez also contended that § 11359 is
broader than the generic federal offense because the 2011
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MEDINA-RODRIGUEZ V. BARR 3
definition of marijuana pursuant to California law includes
types of marijuana not criminalized pursuant to current
federal law. The panel noted that precedent demands (and
the parties agreed) that the California definition of marijuana
at the time of Medina-Rodriguez’s conviction was
appropriate for the categorical analysis comparison.
However, the parties disagreed about whether the federal
definition of marijuana to be applied should be that at the
time of Medina-Rodriguez’s conviction, or at the time of his
removal.
Joining the Second, Third, and Eleventh Circuits, the
panel held that, when conducting a categorical analysis for
removability based upon a state criminal conviction, it is
proper to compare drug schedules at the time of the
petitioner’s underlying criminal offense, not at the time of
the petitioner’s removal. The panel explained that the
Supreme Court has assumed that the time-of-conviction
federal drug schedule is the appropriate one for the
categorical approach comparison, and that such a rule
comports with the purposes of the categorical approach,
namely providing the defendant with notice of possible
future immigration consequences. Moreover, the panel
explained that using the time-of-removal federal drug
schedule would undermine a defendant’s ability to
understand those immigration consequences. Applying the
time-of-conviction rule, the panel held that Medina-
Rodriguez’s conviction qualifies as an aggravated felony
that made him removable because the California and federal
definitions of marijuana were identical at the time of his
conviction.
The panel also held that the BIA had substantial evidence
to conclude that Medina-Rodriguez did not meet his burden
on his CAT claims. Medina-Rodriguez contended that it is
4 MEDINA-RODRIGUEZ V. BARR
more likely than not that he will be tortured in Mexico based
on his physical disability. The panel noted that the reports
Medina-Rodriguez cited primarily concerned individuals
with mental health disabilities, and that the absence of
evidence that individuals with physical disabilities are not
being tortured is not enough to meet the standard for CAT
relief. The panel further explained that the articles Medina-
Rodriguez cited pertaining to hardships faced by those with
physical disabilities in Mexico did not prove it is more likely
than not that he will be tortured.
Medina-Rodriguez also asserted that his tattoos make it
more likely than not he will be tortured at the hands of a drug
cartel with either the direct involvement or acquiescence of
the Mexican government. The panel explained that Medina-
Rodriguez’s claim relied on a series of events, all of which
must happen for torture to occur. The panel wrote that,
although Medina-Rodriguez’s tattoo of Santa Muerte may
increase the probability that a gang seeks to recruit him, the
evidence did not establish that any step in this hypothetical
chain of events is more likely than not to happen, let alone
that the entire chain will come together to result in the
probability of torture.
COUNSEL
Roxana V. Muro (argued), Los Angeles, California, for
Petitioner.
Mona Maria Yousif (argued), Attorney; Brianne Whelan
Cohen, Senior Litigation Counsel; Joseph H. Hunt, Assistant
Attorney General; Civil Division, United States Department
of Justice, Washington, D.C.; for Respondent.
MEDINA-RODRIGUEZ V. BARR 5
OPINION
M. SMITH, Circuit Judge:
Noe Medina-Rodriguez (Medina-Rodriguez) petitions
for review of the decision of the Board of Immigration
Appeals (BIA). The BIA affirmed the ruling of the
immigration judge (IJ) that Medina-Rodriguez was
removable for having committed an aggravated felony by
violating California Health & Safety Code § 11359. In
doing so, the BIA rejected Medina-Rodriguez’s argument
that, in deciding removability under the categorical
approach, the IJ should compare the state definition of
marijuana to the federal definition at the time of removal,
rather than at the time of conviction. The BIA and IJ
determined that Medina-Rodriguez was not eligible for relief
pursuant to the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT).
We have not yet addressed the issue of whether to
compare the relevant narcotics definitions at the time of
conviction or at the time of removal. We now join the
Second, Third, and Eleventh Circuits in deciding that, when
conducting a categorical analysis for removability based
upon a state criminal conviction, it is proper to compare drug
schedules at the time of the petitioner’s underlying criminal
offense, not at the time of the petitioner’s removal. We
additionally affirm the BIA’s ruling as to Medina-
Rodriguez’s CAT claim. Therefore, we deny the petition for
review.
I. Background
Medina-Rodriguez was born in Mexico, and is a
Mexican citizen. He first entered the United States when he
6 MEDINA-RODRIGUEZ V. BARR
was six months old, and became a lawful permanent resident
in 1987. On April 12, 2011, Medina-Rodriguez was
convicted of violating California Health & Safety Code
§ 11359. At the time of Medina-Rodriguez’s conviction,
§ 11359 provided that “[e]very person who possesses for
sale any marijuana, except as otherwise provided by law,
shall be punished by imprisonment in the state prison.” Cal.
Health & Safety Code § 11359 (in effect prior to October 1,
2011). The maximum term of imprisonment for a § 11359
violation was more than one year. Cal. Penal Code § 18 (in
effect prior to October 1, 2011). 1 A § 11359 violation was a
felony under California law. See Cal. Health & Safety Code
§ 11362 (in effect prior to October 1, 2011); People v.
Shafrir, 107 Cal. Rptr. 3d 721, 724 (Ct. App. 2010). The
state court ultimately sentenced Medina-Rodriguez to
180 days’ imprisonment.
In 2018, the Department of Homeland Security (DHS)
served Medina-Rodriguez with a Notice to Appear, charging
him with being subject to removal pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an
aggravated felony at any time after admission is
deportable.”). DHS charged Medina-Rodriguez with having
committed an aggravated felony pursuant to 8 U.S.C.
§ 1101(a)(43)(B) (“The term ‘aggravated felony’ means . . .
illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime
(as defined in section 924(c) of Title 18).”). DHS alleged
1
The California legislature has since amended § 11359 to provide
for punishment “by imprisonment in a county jail for a period of not
more than six months or by a fine of not more than five hundred dollars
($500), or by both such fine and imprisonment,” if the individual is
18 years of age or older and does not have previous qualifying offenses.
Cal. Health & Safety Code § 11359(b) (effective June 27, 2017).
MEDINA-RODRIGUEZ V. BARR 7
that Medina-Rodriguez’s § 11359 conviction was an
aggravated felony for the purposes of §§ 1227(a)(2)(A)(iii)
and 1101(a)(43)(B). 2
Medina-Rodriguez moved to terminate the proceedings,
arguing that a conviction pursuant to § 11359 was not a
categorical match to the generic federal narcotics offense,
21 U.S.C. § 841(a), because: (1) § 11359 allegedly
criminalized a broader range of conduct than its federal
generic counterpart; and (2) the California definition of
marijuana differs from the current federal definition. The IJ
found Medina-Rodriguez removable as charged.
Medina-Rodriguez next applied for asylum, withholding
of removal pursuant to the Immigration and Nationality Act
(INA), or relief pursuant to the CAT. In a hearing before the
IJ, Medina-Rodriguez described injuries to his back,
including a hernia, pain in his sciatic nerve, and a bulging
disc. He noted that he has been treated for these injuries
while in immigration detention and that he uses a wheelchair
since he cannot walk more than fifty feet before
experiencing pain. Because of these injuries, Medina-
Rodriguez expressed a fear that he could be tortured if
returned Mexico and placed in a facility for disabled
individuals. Medina-Rodriguez submitted several reports to
the IJ, including a Department of State report showing that
individuals at mental health facilities in Mexico are abused.
He also submitted articles discussing discrimination against
disabled individuals in Mexico.
2
The Notice to Appear also noted that Medina-Rodriguez had been
convicted of possession of a firearm by a felon, in violation of California
Penal Code § 12021(a). The Government does not argue that this
conviction is a basis for Medina-Rodriguez’s removal.
8 MEDINA-RODRIGUEZ V. BARR
Medina-Rodriguez explained that he has about twenty
tattoos on his body, including tattoos of a marijuana leaf and
of Santa Muerte, to whom he prays. Medina-Rodriguez
accompanied his application with articles noting that
members of drug cartels also pray to Santa Muerte. Some
articles indicated that Santa Muerte has a significant
following among drug cartel members and other criminals.
Medina-Rodriguez expressed a fear that he would be
kidnapped or recruited into a gang because of his tattoos and
ability to speak English. He also told the IJ that the last time
he was in Mexico, he was robbed, and that the local police
did nothing after he reported the robbery.
The IJ ultimately reaffirmed its earlier decision with
respect to removability, deciding that Medina-Rodriguez
was not eligible for asylum or withholding of removal. With
respect to removability, the IJ adhered to our decision in
Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014), in
which we held that § 11359 categorically qualified as an
aggravated felony for purposes of removability pursuant to
the INA. The IJ generally found Medina-Rodriguez to be a
credible witness. Nonetheless, the IJ concluded that
Medina-Rodriguez did not qualify for asylum, withholding
of removal under the INA, or relief under the CAT.
The BIA affirmed. The BIA also cited Roman-Suaste as
supporting Medina-Rodriguez’s removability and rejected
Medina-Rodriguez’s argument that the categorical analysis
requires a comparison using the federal drug schedule at the
time of removal. The BIA also affirmed the IJ concerning
Medina-Rodriguez’s asylum, withholding, and CAT claims.
MEDINA-RODRIGUEZ V. BARR 9
Medina-Rodriguez timely petitioned our court for
review of the BIA’s holdings on removability and CAT
deferral of removal. 3
II. Standard of Review
We have jurisdiction over Medina-Rodriguez’s petition
for review pursuant to 8 U.S.C. § 1252(a). “We review de
novo the BIA’s determinations on questions of law and
mixed questions of law and fact.” Conde Quevedo v. Barr,
947 F.3d 1238, 1241 (9th Cir. 2020). This de novo review
extends to the question of “whether a state statutory crime
qualifies as an aggravated felony.” Jauregui-Cardenas v.
Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). “We review for
substantial evidence the BIA’s factual findings.” Conde
Quevedo, 947 F.3d at 1241. The Supreme Court recently
confirmed that the BIA’s factual findings on CAT claims are
also subject to the substantial evidence standard. Nasrallah
v. Barr, 590 U.S. __, 140 S. Ct. 1683, 1692 (2020).
“Substantial evidence review means that we may only
reverse the agency’s determination where the evidence
compels a contrary conclusion from that adopted by the
BIA.” Parada v. Sessions, 902 F.3d 901, 908–09 (9th Cir.
2018) (internal quotation marks and citation omitted); see
also Nasrallah, 140 S. Ct. at 1692 (“The agency’s ‘findings
of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.’” (quoting
8 U.S.C. § 1252(b)(4)(B))).
3
Medina-Rodriguez does not renew his claims regarding
jurisdiction, asylum, and withholding of removal under the INA.
10 MEDINA-RODRIGUEZ V. BARR
III. Categorical Approach
Courts employ the categorical approach to determine
whether a state criminal conviction is an aggravated felony
for the purposes of the INA, see Moncrieffe v. Holder,
569 U.S. 184, 190 (2013), or Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), see Descamps v. United States,
570 U.S. 254, 257 (2013).
When applying the categorical approach, a court “ask[s]
whether the [state] statute of conviction is a categorical
match to the generic [federal] predicate offense; that is, if the
statute of conviction criminalizes only as much (or less)
conduct than the generic offense.” Medina-Lara v. Holder,
771 F.3d 1106, 1112 (9th Cir. 2014). “[T]he offenses must
be viewed in the abstract, to see whether the state statute
shares the nature of the federal offense that serves as a point
of comparison.” Moncrieffe, 569 U.S. at 190. “[O]nly if a
conviction of the state offense necessarily involved . . . facts
equating to [the] generic [federal offense]” is there a
categorical match. Id. (internal quotation marks and citation
omitted). “Whether the noncitizen’s actual conduct involved
such facts is quite irrelevant.” Id. (internal quotation marks
and citation omitted). A court “must presume that the
conviction rested upon [nothing] more than the least of th[e]
acts criminalized.” Id. at 190–91 (internal quotation marks
and citation omitted). If an individual proves that there is “a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic [federal] definition of a crime,” then the state statute
is not a categorical match. Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). “To show that realistic
probability, an offender . . . must at least point to his own
case or other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for which he
MEDINA-RODRIGUEZ V. BARR 11
argues.” Id. If the statutes are a categorical match, then the
inquiry ends. The state criminal conviction is then
considered an aggravated felony for the purposes of the INA.
See Roman-Suaste, 766 F.3d at 1039.
Medina-Rodriguez argues that § 11359 is not a
categorical match to the generic federal offense for two
reasons. First, Medina-Rodriguez believes that § 11359
criminalizes conduct beyond the scope of the generic federal
offense. Second, he contends that, because the California
definition of marijuana does not match the current federal
definition, § 11359 is not a categorical match.
A. The Scope of Section 11359
In Roman-Suaste, we determined that § 11359 was a
categorical match for the federal marijuana offense.
766 F.3d at 1039. We noted that the INA defines
“‘aggravated felony’ to include ‘illicit trafficking in a
controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section
924(c) of Title 18).’” Id. at 1038 (quoting 8 U.S.C.
§ 1101(a)(43)(B)). “In turn, the phrase ‘drug trafficking
crime’ is defined as, among other things, ‘any felony
punishable under the Controlled Substances Act.’” Id.
(quoting 18 U.S.C. § 924(c)(2)). “Finally, a ‘felony’ is an
offense for which the maximum term of imprisonment is
‘more than one year.’” Id. (quoting 18 U.S.C. § 3559(a)(5)).
We then compared § 11359 to the generic federal
offense, 21 U.S.C. § 841(a)(1). Section 841(a)(1) makes it a
felony “to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense a
controlled substance[.]” Id. One exception to § 841(a)(1) is
that “any person who violates [§ 841(a)(1)] by distributing a
12 MEDINA-RODRIGUEZ V. BARR
small amount of marihuana for no remuneration” is
punishable with a misdemeanor only. Id. § 841(b)(4).
Applying the Supreme Court’s decision in Moncrieffe,
the Roman-Suaste court noted that, under the federal statute,
“possession with intent to distribute is always punishable as
a felony where remuneration is involved.” Roman-Suaste,
766 F.3d at 1039 (emphasis in original). It then wrote that
“[a] ‘sale,’ as commonly understood, contemplates a transfer
in exchange for money or some other form of remuneration,
and California case law confirms this understanding.” Id.
(citing People v. Lazenby, 8 Cal. Rptr. 2d 541, 543 (Ct. App.
1992)). Thus, we held that because § 11359 always involves
remuneration, an individual could not be convicted for
conduct described in the misdemeanor provision of
21 U.S.C. § 841(b)(4). Roman-Suaste, 766 F.3d at 1039.
We are bound by our decision in Roman-Suaste. 4 Silva
v. Barr, 965 F.3d 724, 735 (9th Cir. 2020). Applying that
4
The version of § 11359 at issue in this case differs slightly from
the version at issue in Roman-Suaste. Section 11359, as discussed in
Roman-Suaste, provided that offenders “shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code.” Cal. Health & Safety Code § 11359 (in effect from October 1,
2011 to November 8, 2016). The statute under which Medina-Rodriguez
was convicted provided that offenders “shall be punished by
imprisonment in the state prison.” Id. (in effect prior to October 1, 2011).
No party argues that the California legislature’s decision to alter the
language regarding punishment has any effect on the categorical
approach. In both instances, the maximum possible penalty was at least
one year’s imprisonment. See Roman-Suaste, 766 F.3d at 1038 (citing
Cal. Penal Code § 1170(h)); Cal. Penal Code § 18 (in effect prior to
October 1, 2011). And an “offense for which the maximum term of
imprisonment is ‘more than one year,’” is a felony for the purposes of
the INA. Roman-Suaste, 766 F.3d at 1038 (quoting 18 U.S.C.
§ 3559(a)(5)).
MEDINA-RODRIGUEZ V. BARR 13
decision here, we conclude that Medina-Rodriguez’s
conviction under § 11359 is a categorical match and subjects
Medina-Rodriguez to removal. Cf. Fajardo v. Barr, 808 F.
App’x 413, 414 (9th Cir. 2020) (applying Roman-Suaste).
Medina-Rodriguez recognizes that we are required to
follow Roman-Suaste, but nonetheless “submits that the
holding in Roman-Suaste must be reconsidered en banc.”
He argues that California state court decisions interpreting
§ 11359 show that a person could have been convicted for
possession of less than thirty grams of marijuana without
remuneration. If a person could have been convicted
pursuant to § 11359 for possession of a small amount of
marijuana without remuneration, such conduct would fall
under the federal carve-out to the general felony provision,
see 21 U.S.C. § 841(b)(4), and might render Medina-
Rodriguez non-removable, see Gonzales, 549 U.S. at 193.
Specifically, Medina-Rodriguez points to the decisions
of the California Court of Appeal in People v. Harris, 99 Cal.
Rptr. 2d 618 (Ct. App. 2000), and People v. Rusco, 60 Cal.
Rptr. 2d 537 (Ct. App. 1997), superseded by People v.
Rusco, 975 P.2d 30 (Cal. 1999). Even if we could disregard
the decision in Roman-Suaste (which we cannot), neither of
these two California decisions supports Medina-Rodriguez’s
argument. In neither case did the California Court of Appeal
hold that an individual could be convicted pursuant to
§ 11359 without selling (or intending to sell) marijuana. In
Harris, the Court of Appeal explicitly stated that
circumstantial evidence could support the notion that “the
narcotics are held for purposes of sale . . . . Thereafter, it is
for the jury to credit such opinion or reject it.” Harris,
99 Cal. Rptr. 2d at 620 (internal quotation marks and citation
omitted) (emphasis added). Thus, § 11359 is not analogous
to the statute at issue in Moncrieffe, where the Supreme
14 MEDINA-RODRIGUEZ V. BARR
Court ruled that a statute criminalizing only “intent to
distribute marijuana” without a remuneration requirement,
was not a categorical match. Moncrieffe, 569 U.S. at 194
(emphasis added). Section 11359 actually matches the
Supreme Court’s description of a statute that would be a
categorical match—one that involved “‘sell[ing]’
marijuana,” which “would seem to establish remuneration.”
Id. Harris, in conformity with the text of § 11359, confirms
that California statute requires the sale of (or intent to sell)
marijuana. Thus, even if we were not bound by Roman-
Suaste, Medina-Rodriguez’s arguments would be
unavailing.
B. Definition of Marijuana
Medina-Rodriguez next contends that § 11359 is broader
than the generic federal offense because the 2011 definition
of marijuana pursuant to California law includes types of
marijuana not criminalized pursuant to current federal law.
A mismatch between state and federal drug schedules
triggers a finding of overbreadth of the state statute using the
categorical approach. See Mellouli v. Lynch, 575 U.S. 798,
135 S. Ct. 1980, 1991 (2015) (“[T]o trigger removal under
[the INA], the Government must connect an element of the
alien’s conviction to a drug ‘defined in’” the federal drug
schedule.). This is because, if the state drug schedule is
broader than the federal drug schedule, the state criminal
conviction may have “required no proof by the prosecutor
that” the defendant’s state felony was based on a substance
also banned by federal law. Id. at 1988. Accord United
States v. Rodriguez-Gamboa, 946 F.3d 548, 551–53 (9th Cir.
2019) (holding that, if California’s definition of
methamphetamine is broader the federal definition, the state
drug conviction cannot form the basis for a conviction of
illegal reentry); Lorenzo v. Whitaker, 752 F. App’x 482,
MEDINA-RODRIGUEZ V. BARR 15
485–86 (9th Cir. 2019) (applying the mismatch between
methamphetamine definitions in the removal context).
Precedent demands (and the parties agree) that the
California definition of marijuana at time of Medina-
Rodriguez’s conviction is appropriate for the categorical
analysis comparison. See Dominguez v. Barr, __ F.3d __,
2020 WL 5603930, at *5 n.3 (9th Cir. 2020), as amended
Sept. 18, 2020 (“[W]hen applying the categorical approach,
we consider the law that the petitioner was convicted of
violating as it applied at the time of conviction.” (citing
McNeill v. United States, 563 U.S. 816, 820 (2011))). The
parties disagree about whether the federal definition of
marijuana to be applied in the categorical analysis should be
that at the time of Medina-Rodriguez’s conviction, or at the
time of his removal.
In Roman-Suaste, we did not decide whether it is proper
to compare the state definition of a drug to the federal
definition at the time of the petitioner’s conviction, or at the
time of his removal. 5 Past decisions from our court may
have assumed that the time-of-conviction drug schedule
should be the point of comparison. See, e.g., Fahham v.
Barr, 786 F. App’x 698, 700 n.2 (9th Cir. 2019) (“[T]he
parties agreed that the relevant South Dakota drug schedules
included . . . substances that were not included in the
5
We refer to the two possibilities for the federal drug schedule
comparison as the “time-of-conviction” or the “time-of-removal.” The
parties have framed the question in that manner. However, the Fifth
Circuit has ruled that the state and federal drug schedules at the time of
arrest, not conviction, should govern. Lopez Ventura v. Sessions,
907 F.3d 306, 309 (5th Cir. 2018); see also United States v. Cantu,
964 F.3d 924, 936–37 (10th Cir. 2020) (Hartz, J., concurring). No party
raises the time-of-arrest vs. time-of-conviction issue in this case, and we
do not decide it here.
16 MEDINA-RODRIGUEZ V. BARR
corresponding federal drug schedules.”) (emphasis added)).
However, “unstated assumptions on non-litigated issues are
not precedential holdings binding future decisions.”
Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288
(9th Cir. 1985).
In Doe v. Sessions, 886 F.3d 203 (2d Cir. 2018), the
Second Circuit confronted this issue. Doe was convicted in
2014 of the federal crimes of conspiracy to distribute and
possess with intent to distribute heroin, in violation of
21 U.S.C. §§ 846, 841(b)(1)(C). Doe, 886 F.3d at 206. DHS
then charged Doe “as removable . . . for having been
convicted of,” among other crimes, “a drug trafficking
aggravated felony.” Id. (citations omitted). Doe argued that
he was not removable “because the [drug s]chedules were
broader on the date of his conviction than at the time of his
removal proceedings,” as a specific type of heroin was
removed from the federal drug schedule after Doe’s criminal
conviction. Id. The Second Circuit disagreed with Doe, and
instead held that the time-of-conviction federal drug
schedule was appropriate for a categorical analysis
comparison. Id. at 208.
First, the court noted that the Supreme Court had
assumed that the federal drug schedule at the time of
conviction determined removability. Id. at 208. In Mellouli,
the Supreme Court wrote: “At the time of Mellouli’s
conviction, Kansas’ schedules of controlled substances
included at least nine substances” not found in the federal
drug schedule. Mellouli, 135 S. Ct. at 1988 (emphasis
added). The BIA similarly has assumed that an IJ should
compare the state and federal drug schedules at the time of
an individual’s conviction. See Matter of Ferreira, 26 I. &
N. Dec. 415, 418 (BIA 2014).
MEDINA-RODRIGUEZ V. BARR 17
The Second Circuit determined that the plain text of the
INA provides little guidance. Doe “argue[d] that the use of
present tense verbs in particular sections of the INA
indicates that [the court] should refer to the version of the
[federal s]chedules in force when removal proceedings are
initiated.” Doe, 886 F.3d at 209. Those provisions include
18 U.S.C. § 924(c)(2) (“[T]he term ‘drug trafficking crime’
means any felony punishable under the Controlled
Substances Act . . . .”), and 8 U.S.C. § 1101(a)(43)(B) (“The
term ‘aggravated felony’ means . . . illicit trafficking in a
controlled substance (as defined in section 802 of Title 21)
. . . .”). The Second Circuit did not find this argument
persuasive, as those provisions “merely specify the crimes
for which an alien may be removed” and “offer no insight
into whether the INA mandates a ‘time-of-conviction’ or a
‘time-of-decision’ rule.” Doe, 886 F.3d at 209. The Second
Circuit suggested that other provisions of the INA actually
pointed to the opposite conclusion, as the INA focuses on an
individual’s “conviction” as the basis for removability. See
id. at 209 n.5 (citing 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i));
cf. Carachuri-Rosendo v. Holder, 560 U.S. 563, 576 (2010)
(“The text thus indicates that we are to look to the conviction
itself as our starting place, not to what might have or could
have been charged.”).
Finally, the Second Circuit noted that using the time-of-
conviction federal drug schedule better accords with the
reasons for using the categorical approach. The categorical
approach “works to promote efficiency, fairness, and
predictability in the administration of immigration law.”
Mellouli, 135 S. Ct. at 1987. A time-of-conviction rule
allows an individual “to anticipate the immigration
consequences of a guilty plea or conviction at trial.” Doe,
886 F.3d at 209. A time-of-conviction rule also enables a
non-citizen defendant to “enter safe harbor guilty pleas [that]
18 MEDINA-RODRIGUEZ V. BARR
do not expose the [alien defendant] to the risk of immigration
sanctions.” Mellouli, 135 S. Ct. at 1987 (internal quotation
marks and citation omitted). Moreover, a time-of-conviction
rule adheres to the Supreme Court’s general prescription that
a non-citizen defendant does not receive effective assistance
of counsel unless counsel advises that defendant of the
possible immigration consequences of a plea to a criminal
charge. See Padilla v. Kentucky, 559 U.S. 356, 366–69
(2010). A time-of-removal rule would make the dispensing
of such advice practically impossible. A defendant (and his
or her lawyer) cannot know whether or how the federal
government will change the federal drug schedule at some
point in the future.
Other circuits have since adopted the Second Circuit’s
position in Doe. The Third Circuit applied Doe to a
petitioner in the same position as Medina-Rodriguez, where
the petitioner had been convicted of a state crime. Martinez
v. Att’y Gen., 906 F.3d 281, 287 (3d Cir. 2018). The
Eleventh Circuit has done the same. Gordon v. Att’y Gen.,
962 F.3d 1344, 1351 n.4 (11th Cir. 2020).
The United States District Court for the Middle District
of Pennsylvania took the opposite approach. United States
v. Miller, __ F. Supp. 3d __, 2020 WL 4812711 (M.D. Pa.
2020). According to that court, “[w]hen applying the
categorical approach, . . . courts look to the federal offense
as it presently exists. This makes intuitive sense, because
the categorical approach is predominantly used to determine
present-day implications of prior convictions.” Id. at *7.
However, the court cited no case law to support its
contention, and instead focused primarily on the text of the
Sentencing Guidelines. See id. Perhaps most importantly,
Miller involved application of the categorical approach in an
ACCA case, not an immigration case. In the ACCA context,
MEDINA-RODRIGUEZ V. BARR 19
courts are split as to whether a time-of-conviction or time-
of-sentencing rule should apply. Compare id. with United
States v. Gotti, 2020 WL 5597487, at *4 (D. Conn. Sept. 18,
2020) (citing Doe); see also United States v. Swinton, __ F.
Supp. 3d __, 2020 WL 6107054, at *6–8 (W.D.N.Y. 2020)
(discussing the two approaches).
In the immigration context, 6 we find the approach of the
Second, Third, and Eleventh Circuits to be persuasive. As
noted above, the Supreme Court has assumed that the time-
of-conviction federal drug schedule is the appropriate one
for the categorical approach comparison. Such a rule
comports with the purposes of the categorical approach,
namely providing the defendant with notice of possible
future immigration consequences. Using the time-of-
removal federal drug schedule would undermine a
defendant’s ability to understand those immigration
consequences.
Applying the time-of-conviction rule here, we hold that
Medina-Rodriguez’s conviction qualifies as an aggravated
felony pursuant to the INA. In 2011, at the time of Medina-
Rodriguez’s guilty plea, California and federal law defined
marijuana in the same way. See Cal. Health & Safety Code
§ 11018 (in effect prior to November 9, 2016); 21 U.S.C.
§ 802(16) (in effect from April 15, 2009 to December 17,
2014). The federal law’s current exemption for hemp, see
id. § 802(16)(B) (in effect since December 21, 2018), cannot
relieve Medina-Rodriguez under the approach we endorse
today. Therefore, we affirm the BIA’s removability holding.
6
We do not decide whether the same rule applies in the ACCA
context, as that issue is not before the court.
20 MEDINA-RODRIGUEZ V. BARR
IV. Convention Against Torture
Medina-Rodriguez argues that, even if he is removable,
he qualifies for deferral of removal under the CAT. “The
burden of proof is on the applicant for withholding [or
deferral] of removal under [the CAT] to establish that it is
more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§§ 1208.16(c)(2), 1208.17(a). “Torture is defined as any act
by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person” but “does not
include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture.” Id.
§ 1208.18(a)(1)–(2). Such torture must be “inflicted by or at
the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.”
Id. § 1208.18(a)(1). As noted above, we review the BIA’s
factual findings on a CAT claim under the substantial
evidence standard. Nasrallah, 140 S. Ct. at 1692.
Medina-Rodriguez contends that it is more likely than
not that he will be tortured for two reasons if removed to
Mexico: (1) his disability, and (2) his tattoos.
On the disability claim, the IJ and BIA agreed that
Medina-Rodriguez could face discrimination because of his
physical disability. But the reports Medina-Rodriguez cites
primarily concerned individuals with mental health
disabilities. In particular, the State Department report states
that Mexican “law prohibits discrimination against persons
with physical, sensory, intellectual, and mental disabilities.”
But in the next paragraph, the report discusses how “[a]buses
in mental health institutions and care facilities . . . were a
problem. Abuses of persons with disabilities included the
use of physical and chemical restraints, physical and sexual
abuse,” and other forms of abuse. Thus, it appears that the
MEDINA-RODRIGUEZ V. BARR 21
State Department, in discussing abuse of individuals with
disabilities, referred to those individuals with mental health
disabilities, not those with physical disabilities.
Medina-Rodriguez seems to recognize this fact but tells
us that the State Department “never limited its analysis of
harm to Mexico’s disabled population to only those
struggling with their mental health.” However, the absence
of evidence that individuals with physical disabilities are not
being tortured is not enough to meet the standard for CAT
relief. Cf. Miah v. Mukasey, 519 F.3d 784, 788 (8th Cir.
2008) (holding that “the absence of evidence that” an alleged
persecutor engaged in “violent criminal conduct . . . at the
instigation of or with the consent or acquiescence of a public
official,” was enough to deny CAT relief). The opposite
holding would upend DHS’s regulation, which states that the
petitioner has the “burden of proof . . . to establish that it is
more likely than not that he or she will be tortured.” 8 C.F.R.
§ 1208.16(c)(2). The articles Medina-Rodriguez cites
pertaining to the hardships faced by those with physical
disabilities in Mexico “may have demonstrated that he is
more likely than not to experience discrimination and
persecution,” but they do not prove it is more likely than not
that he will be tortured.” Nyirenda v. Lynch, 655 F. App’x
593, 595 (9th Cir. 2016). The BIA had substantial evidence
to conclude that Medina-Rodriguez could not meet his
burden on his CAT claim with regard to his physical
disability.
Medina-Rodriguez also asserts that his tattoos make it
more likely than not he will be tortured at the hands of a drug
cartel with either the direct involvement or acquiescence of
the Mexican government. He infers that he “is much more
likely than the general population to be targeted for torture.”
However, as the IJ noted, Medina-Rodriguez’s claim relies
22 MEDINA-RODRIGUEZ V. BARR
on a series of events, all of which must happen for torture to
occur. First, a gang would have to target Medina-Rodriguez
for recruitment because of his tattoos. While some
individuals with prior criminal convictions have Santa
Muerte tattoos, Medina-Rodriguez has not shown “that it is
more likely than not” he will be recruited into such a gang.
8 C.F.R. § 1208.16(c)(2). Medina-Rodriguez’s claim then
requires a drug cartel or gang to torture him. Then Medina-
Rodriguez must show that the Mexican government will
participate in or acquiesce to that torture. See id.
§ 1208.18(a)(1). Although the tattoo of Santa Muerte may
increase the probability that a gang seeks to recruit Medina-
Rodriguez, “[t]he evidence does not establish that any step
in this hypothetical chain of events is more likely than not to
happen, let alone that the entire chain will come together to
result in the probability of torture.” In re J-F-F-, 23 I. & N.
Dec. 912, 917–18 (A.G. 2006). The BIA had substantial
evidence to deny Medina-Rodriguez’s CAT claim on this
basis as well.
V. Conclusion
Medina-Rodriguez’s violation of California Health &
Safety Code § 11359 constitutes an aggravated felony for
purposes of the INA, as decided by our court in Roman-
Suaste. As an issue of first impression for our court, we hold
that, in determining whether a state criminal conviction is a
categorical match for its federal counterpart, the proper point
of comparison are the two drug schedules in effect at the time
of the petitioner’s conviction, not at the time of his removal.
Since the California and federal definitions of marijuana
were identical at the time of Medina-Rodriguez’s guilty plea,
his conviction was a categorical match with the generic
federal offense. Thus, he is removable. Finally, we affirm
MEDINA-RODRIGUEZ V. BARR 23
the BIA’s decision to deny Medina-Rodriguez’s claim for
deferral of removal under the CAT.
Medina-Rodriguez’s petition for review is denied.