Rosas-Castaneda v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS JAVIER ROSAS-CASTANEDA, 

Petitioner, No. 10-70087

v.

 Agency No.

A44-113-142

ERIC H. HOLDER JR., Attorney

General OPINION

Respondent,



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 9, 2010—San Francisco, California

Filed January 4, 2011

Before: Robert E. Cowen,* A. Wallace Tashima, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman

*The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation.

257

260 ROSAS-CASTANEDA v. HOLDER

COUNSEL

John M. DeStefano, III (argued), Snell & Wilmer, L.L.P,

Phoenix, Arizona, for the petitioner.

Tony West, Assistant Attorney General; Linda S. Wernery,

Assistant Director; James E. Grimes (argued), Senior Litiga-

tion Counsel, Office of Immigration Litigation, Civil Divi-

sion, Department of Justice, Washington, D.C., for the

respondent.

ROSAS-CASTANEDA v. HOLDER 261

OPINION

SILVERMAN, Circuit Judge:

Luis Javier Rosas-Castaneda, a native and citizen of Mex-

ico and a lawful permanent resident of the United States, was

convicted of attempted transportation for sale of an amount of

marijuana weighing more than two pounds in violation of Ari-

zona law. An Immigration Judge found Rosas-Castaneda

removable based on his conviction for a controlled substance

violation, but found the record of conviction unclear as to

whether his offense constituted an aggravated felony. The IJ

requested that Rosas-Castaneda submit the criminal transcript

to corroborate the inconclusive record; however, Rosas-

Castaneda declined to provide any further evidence of his

conviction. Instead, Rosas-Castaneda argued, citing Sandoval-

Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), that he met

his burden for relief from removal because the record of con-

viction did not conclusively prove that his offense constituted

an aggravated felony. The IJ denied his application for cancel-

lation of removal. On appeal, the BIA affirmed, ruling that the

REAL ID Act changes the result of Sandoval-Lua. We hold

today that it does not. Both before and after the REAL ID Act,

including at the time Sandoval-Lua was decided, the burden

of proof was, is, and remains on the alien. In this particular

respect, the REAL ID Act merely codified existing law.

Therefore, the REAL ID Act did not affect the holding in

Sandoval-Lua.

FACTUAL AND PROCEDURAL BACKGROUND

Rosas-Castaneda entered the United States as a lawful per-

manent resident on August 13, 1993. On December 15, 2006,

Rosas-Castaneda was charged with one count of attempted

transportation for sale of an amount of marijuana weighing

more than two pounds and one count of knowingly possessing

for sale an amount of marijuana weighing more than four

pounds. On March 22, 2007, he signed an agreement to plead

262 ROSAS-CASTANEDA v. HOLDER

guilty to one count: “attempted transportation of marijuana for

sale, involving more than two pounds, a class three felony, in

violation of A.R.S. §§ 13-1001, 13-3405, 13-3401, 13-601,

13-702, and 13-801.” On April 23, 2007, he was convicted in

Maricopa County Superior Court on that count and sentenced

to 30 months’ incarceration.

Rosas-Castaneda was served with a notice to appear on

April 25, 2007, alleging that he was removable because his

conviction constituted (1) an aggravated felony, as defined in

8 U.S.C. § 1101(a)(43)(B) (illicit trafficking in a controlled

substance) and (U) (attempt to commit an aggravated felony),

and (2) a violation of a law relating to a controlled substance,

as defined in 8 U.S.C. § 1227(a)(2)(B)(i). Rosas-Castaneda

denied removability.

On June 12, 2009, the IJ admitted Rosas-Castaneda’s con-

viction documents into evidence — the criminal complaint

against him and his plea agreement. Based on these docu-

ments, the IJ found Rosas-Castaneda removable on account of

his conviction for a controlled substance offense, but not on

the basis of a conviction for an aggravated felony. The IJ

found that the statute under which Rosas-Castaneda had been

convicted was divisible, and that the government had failed to

prove by clear and convincing evidence that Rosas-

Castaneda’s offense constituted an aggravated felony for pur-

poses of removal.

After the IJ found him removable based on the conviction

for a controlled substance offense, Rosas-Castaneda stated his

intention to apply for cancellation of removal. Aggravated fel-

ons are not eligible for cancellation of removal. 8 U.S.C.

§ 1229b(a). Having found the statute of conviction divisible,

the IJ reviewed the record of conviction. These documents

reveal only that Rosas-Castaneda was convicted of one count

of “[a]ttempted transportation of marijuana for sale, involving

more than two pounds, a class 3 felony in violation of A.R.S.

§§ 13-1001, 13-3405, 13-3401, 13-610, 13-701, 13-702, and

ROSAS-CASTANEDA v. HOLDER 263

13-801.” The IJ found the record of conviction inconclusive

and ordered Rosas-Castaneda to produce a transcript of his

Arizona criminal court plea hearing.

Rosas-Castaneda argued that under Sandoval-Lua, 499 F.3d

1121, to meet his burden of proof to establish eligibility for

cancellation of removal, he needed only to prove that the

record of conviction is inconclusive as to whether he was con-

victed of an aggravated felony. The IJ rejected that argument,

distinguishing Sandoval-Lua as inapplicable to applications

for relief submitted under the subsequently enacted REAL ID

Act, and held that the REAL ID Act placed the burden on

Rosas-Castaneda to comply with a request to corroborate

inconclusive conviction documents. Rosas-Castaneda repre-

sented that he would request the transcript, and the IJ contin-

ued the proceedings — first until July 28, 2009, then again

until September 3, 2009.

In a hearing on September 3, 2009, Rosas-Castaneda

argued that (1) the rule stated in Sandoval-Lua applied to

post-REAL ID Act cases, (2) he was not required to present

any further conviction documents to meet his burden of proof

for eligibility for cancellation of removal, and (3) he had met

his burden by showing that the judicially noticeable convic-

tion documents in the record were inconclusive as to whether

his offense constituted an aggravated felony. The IJ asked

Rosas-Castaneda if he had requested and received the tran-

script of his plea hearing. Rosas-Castaneda responded that he

had attempted to get the transcript, but had not yet received

it. Rosas-Castanda then declined the IJ’s offer of a continu-

ance until the transcript arrived. The IJ proceeded to receive

evidence in support of Rosas-Castaneda’s application for can-

cellation of removal “in the interest of judicial economy.” The

IJ issued an oral decision and order at the close of the hearing.

The IJ found Rosas-Castaneda removable based on his con-

viction of an offense relating to a controlled substance, and

denied his application for cancellation of removal based on

264 ROSAS-CASTANEDA v. HOLDER

his failure to prove conclusively that he had not been con-

victed of an aggravated felony. The IJ held that under the

REAL ID Act, Rosas-Castaneda could be required to produce

transcripts from the state criminal proceedings as “corroborat-

ing evidence.” The IJ distinguished Sandoval-Lua on the

grounds that Sandoval-Lua did not apply post-REAL ID Act.

The IJ also found that if Rosas-Castaneda were eligible for

cancellation of removal, then his application for relief would

have “merit[ed] a favorable exercise of discretion.”

On appeal, the BIA did not review whether Rosas-

Castaneda’s conviction documents were, in fact, inconclusive;

nonetheless, the Board affirmed the IJ’s decision that the pro-

duction of an inconclusive record of conviction did not carry

Rosas-Castaneda’s burden to prove eligibility for cancellation

of removal. The BIA also distinguished our decision in

Sandoval-Lua as not applicable to applications for relief filed

after the effective date of the REAL ID Act. Furthermore, the

BIA, having found him ineligible for cancellation of removal,

mooted the IJ’s finding that, if eligible, Rosas-Castaneda’s

application would merit a favorable exercise of discretion in

granting cancellation of removal. Rosas-Castaneda’s appeal

was dismissed, and he has been removed from the United States.1

JURISDICTION

On January 11, 2010, Rosas-Castaneda filed a timely peti-

tion for review of the BIA’s December 18, 2009, final order

of removal. This Court has jurisdiction to review the peti-

tion’s constitutional and legal claims pursuant to 8 U.S.C.

§ 1252(a)(2)(D). Jurisdiction in the immigration proceedings

was proper under 8 U.S.C. § 1229a.

1

We retain jurisdiction notwithstanding Rosas-Castaneda’s having been

removed. See 8 U.S.C. § 1252(d); Andreiu v. Ashcroft, 253 F.3d 477, 484

(9th Cir.2001) (en banc).

ROSAS-CASTANEDA v. HOLDER 265

STANDARD OF REVIEW

We review the unpublished decision of the BIA under the

deference scheme set forth in Skidmore v. Swift & Co., 323

U.S. 134, 65 S. Ct. 161, 89 L.Ed. 124 (1944), “entitling the

interpretation to a respect proportional to its power to per-

suade.” Vasquez v. Holder, 602 F.3d 1003, 1012 n.8 (9th Cir.

2010) (internal citations and quotations omitted).

“Legal determinations regarding an alien’s eligibility for

cancellation of removal are reviewed de novo.” Sandoval-

Lua, 499 F.3d at 1126 (quoting Sinotes-Cruz v. Gonzales, 468

F.3d 1190, 1194 (9th Cir. 2006)).

DISCUSSION

I. Sandoval-Lua Applies in the Post-REAL ID Act

Context.

Prior to the enactment of the REAL ID Act in 2005, a

removable alien applying for discretionary relief from

removal had the burden of proving by a preponderance of the

evidence (1) that she was eligible for relief, and (2) that her

application merited a favorable exercise of discretion. 8

C.F.R. § 1240.8(d). For a lawful permanent resident to prove

eligibility for cancellation of removal, she must show that she

has (1) been a lawful permanent resident for at least five

years; (2) resided in the United States continuously for seven

years, regardless of immigration status; and (3) not been con-

victed of any aggravated felony. Toro-Romero v. Ashcroft,

382 F.3d 930, 937 (9th Cir. 2004) (citing 8 U.S.C.

§ 1229b(a)). Conviction of an aggravated felony constitutes a

mandatory ground for denial of relief. Sandoval-Lua, 499

F.3d at 1127. Where an alien’s conviction “indicates that one

or more of the grounds for mandatory denial of the applica-

tion for relief may apply, the alien shall have the burden of

proving by a preponderance of the evidence that such grounds

do not apply.” Id. at 1129 (citing 8 C.F.R. § 1240.8(d)).

266 ROSAS-CASTANEDA v. HOLDER

[1] In 2007, we decided Sandoval-Lua, the facts of which

are similar to those in this case. In Sandoval-Lua, we upheld

an IJ’s decision finding a removable alien eligible for cancel-

lation of removal because the statute under which the alien

was convicted was divisible and the record of conviction was

inconclusive as to whether the offense constituted an aggra-

vated felony. Id. at 1124. Relying on the Supreme Court’s

decisions in Shepard v. United States, 544 U.S. 13, 125 S. Ct.

1254, 161 L. Ed. 2d 205 (2005), and Taylor v. United States,

495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990),

Sandoval-Lua held that under the modified categorical

approach, the relevant inquiry was “whether the judicially

noticeable documents establish that [the alien’s] conviction

necessarily was for all of the elements constituting an aggra-

vated felony . . . . If the record of conviction does not so

establish, [then the conviction] cannot amount to the generic

offense, and [the alien] has carried his burden.” 499 F.3d at

1131. We therefore held that “[b]y submitting an inconclusive

record of conviction, Lua has affirmatively proven under the

modified categorical analysis that he was not necessarily

‘convicted of any aggravated felony.’ ” Id. at 1130 (quoting

8 U.S.C.§ 1229b(a)(3)).

We now consider whether the REAL ID Act has changed

the law regarding an alien’s burden of proof in cancellation of

removal actions in such a way that Sandoval-Lua has been

statutorily overruled.

A. The Statutory Language of 8 U.S.C.

§ 1229a(c)(4)(A) Confirms That the REAL ID Act

Codified the Existing Regulatory Scheme.

[2] The REAL ID Act amended the Immigration and

Nationality Act in 2005, inserting paragraph (4), titled “Appli-

cations for Relief from Removal,” into 8 U.S.C.§ 1229a(c).

Pub. L. No. 109-13, § 101(d)(2), 119 Stat. 231 (2005). The

statute reads:

ROSAS-CASTANEDA v. HOLDER 267

An alien applying for relief or protection from

removal has the burden of proof to establish that the

alien (i) satisfies the applicable eligibility require-

ments; and (ii) with respect to any form of relief that

is granted in the exercise of discretion, that the alien

merits a favorable exercise of discretion.

8 U.S.C. § 1229a(c)(4)(A). This provision appears no differ-

ent in substance than the requirement stated in the regulation

at issue in Sandoval-Lua. That regulation, 8 C.F.R.

§ 1240.8(d), reads:

The respondent shall have the burden of establishing

that he or she is eligible for any requested benefit or

privilege and that it should be granted in the exercise

of discretion.

Under both the recently enacted Act and the pre-existing reg-

ulation, aliens applying for cancellation of removal have the

burden of establishing (1) their eligibility for relief, and (2)

that their applications merit a favorable exercise of discretion.

There is no evidence to suggest that the burden of proof in 8

C.F.R. § 1240.8(d) was adopted with any extraordinary mean-

ing, or that Congress intended the REAL ID Act to distin-

guish or supersede the regulation’s meaning in any way.

Indeed, 8 C.F.R. § 1240.8(d) is still a valid regulation, in

force with no apparent change to its terms or their meaning

since the enactment of the REAL ID Act. Because the enact-

ment of 8 U.S.C. § 1229a(c)(4)(A) merely codifies the regula-

tion at 8 C.F.R. § 1240.8(d), the REAL ID Act did not work

any change in that law that affects Sandoval-Lua’s logic,

holding, or applicability.

B. The Statutory Language of 8 U.S.C.

§ 1229a(c)(4)(B) Does Not Grant an IJ Authority to

Require an Alien to Supplement the Record of

Conviction.

[3] The text of 8 U.S.C. § 1229a(c)(4)(B) reads:

268 ROSAS-CASTANEDA v. HOLDER

The applicant must comply with the applicable

requirements to submit information or documenta-

tion in support of the applicant’s application for

relief or protection as provided by law or by regula-

tion or in the instructions for the application form. In

evaluating the testimony of the applicant or other

witness in support of the application, the immigra-

tion judge will determine whether or not the testi-

mony is credible, is persuasive, and refers to specific

facts sufficient to demonstrate that the applicant has

satisfied the applicant’s burden of proof. In deter-

mining whether the applicant has met such burden,

the immigration judge shall weigh the credible testi-

mony along with other evidence of record. Where

the immigration judge determines that the applicant

should provide evidence which corroborates other-

wise credible testimony, such evidence must be pro-

vided unless the applicant demonstrates that the

applicant does not have the evidence and cannot rea-

sonably obtain the evidence.

(emphasis added).

[4] The plain language of 8 U.S.C. § 1229a(c)(4)(B) unam-

biguously authorizes IJs to request corroboration of only testi-

monial evidence, and conspicuously excludes the authority to

require an alien to corroborate “other evidence in the record.”

“[W]here Congress includes particular language in one sec-

tion of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.” See

Kucana v. Holder, ___ U.S. ___, 130 S. Ct. 827, 838 (2010)

(quoting Nken v. Holder, 556 U.S. ___, 129 S. Ct. 1749, 1759,

173 L. Ed. 2d 550 (2009)). The third sentence of 8 U.S.C.

§ 1229a(c)(4)(B), describing the universe of evidence avail-

able to support an IJ’s decision, clearly distinguishes “testi-

mony” from “other evidence in the record.” In light of this

distinction, the charge to the IJ in the second sentence to “de-

ROSAS-CASTANEDA v. HOLDER 269

termine whether or not testimony is credible” and the grant of

the authority to the IJ in the fourth sentence to request that

“the applicant . . . provide evidence which corroborates other-

wise credible testimony” should naturally be circumscribed to

refer only to testimony, and not to “other evidence in the

record,” such as conviction documents. Id. (emphases added).

Furthermore, the authority to require corroborating evi-

dence focuses on the issue of “credible testimony” and an

applicant’s credibility generally, 8 U.S.C. § 1229a(c)(4)(B)

(emphasis added); however, there are no issues of credibility

raised by the narrow set of judicially noticeable documents

available under Shepard, 544 U.S. at 16, to determine if an

alien’s conviction renders him ineligible for relief. See Fed. R.

Evid. 201(b) (“A judicially noticed fact must be one not sub-

ject to reasonable dispute . . . .”).

The plain language of the statute therefore demonstrates

that Congress was unambiguous in its intent to grant an IJ

authority to request corroboration of only testimonial evi-

dence under 8 U.S.C. § 1229a(c)(4)(B). Moreover, the BIA

could not have reasonably concluded that 8 U.S.C.

§ 1229a(c)(4)(B) extended the scope of the IJ’s authority to

request evidence corroborating “otherwise credible testimo-

ny” to include judicially noticeable conviction documents.

Having determined that there is no statutory ambiguity in 8

U.S.C. § 1229a(c)(4)(A) or (B), we find the BIA’s position

incorrect, and accord it no deference. See Choin v. Mukasey,

537 F.3d 1116, 1120-21 (9th Cir. 2008).

[5] “We are bound by circuit precedent unless there has

been a substantial change in relevant circumstances . . . or a

subsequent en banc or Supreme Court decision that is clearly

irreconcilable with our prior holding.” United States v.

Vasquez-Ramos, 531 F.3d 987, 991 (9th Cir. 2008) (internal

citations omitted). Because the REAL ID Act has made no

change in the law that would make our precedent in Sandoval-

Lua inapplicable to applications for relief submitted under the

270 ROSAS-CASTANEDA v. HOLDER

REAL ID Act, we hold that the BIA erred in failing to apply

Sandoval-Lua to Rosas-Castaneda’s application for cancella-

tion of removal.

II. The Record of Conviction Is Inconclusive as to

Whether Rosas-Castaneda’s Offense Qualifies as

an Aggravated Felony.

[6] To determine whether Rosas-Castaneda’s conviction

for “attempted transportation for sale of more than two

pounds” under Ariz. Rev. Stat. § 13-3405 constitutes an

aggravated felony under 8 U.S.C. § 1101(a)(43)(B), the court

applies the two-step categorical approach articulated in Taylor.2

See Parrilla v. Gonzales, 414 F.3d 1038, 1042-44 (9th Cir.

2005).

[7] Rosas-Castaneda’s statute of conviction provides in rel-

evant part: “A person shall not knowingly . . . transport for

sale, import into this state or offer to transport for sale or

import into this state, sell, transfer or offer to sell or transfer

marijuana.” Ariz. Rev. Stat. § 13-3405(A)(4). A conviction

under this statute does not qualify categorically as an aggra-

2

The government argues that the Supreme Court’s decision in Nijhawan

v. Holder, ___ U.S. ___, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009), has

undermined Sandoval-Lua; however, Nijhawan is inapposite. In Nijhawan,

the Court “added a new step to the familiar categorical/modified-

categorical approaches first announced in Taylor [ ]. Under this approach,

we must first decide whether a requirement under a generic crime is an

‘element’ of the generic crime instead of simply a description of the ‘par-

ticular circumstances’ in which the offender committed the crime on a

specific occasion.” Kawashima v. Holder, 615 F.3d 1043, 1054 (9th Cir.

2010). As the Court has recently stated, Nijhawan affects those documents

noticeable under Shepard only in cases where a circumstance-specific

inquiry is required. See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577,

2586 n.11 (2010).

Whether Rosas-Castaneda’s offense qualifies as a aggravated felony

turns on whether the elements, rather than the circumstances, of his con-

viction fall within the scope of the generic drug trafficking crime.

Sandoval-Lua clearly applies. Nijhawan merely reaffirms that it does.

ROSAS-CASTANEDA v. HOLDER 271

vated felony because it contains solicitation offenses,3 which

we have held do not qualify as aggravated felonies within the

meaning of 8 U.S.C. § 1101(a)(43)(B). See Sandoval-Lua,

499 F.3d at 1130 (citing Leyva-Licea v. INS, 187 F.3d 1147,

1150 (9th Cir. 1999)). Because Ariz. Rev. Stat. § 13-3405

“punishes solicitation, the full range of conduct encompassed

by the statute does not constitute an aggravated felony under

8 U.S.C. § 1101(a)(43)(B).” Sandoval-Lua, 499 F.3d at 1128

(quoting United States v. Rivera-Sanchez, 247 F.3d 905, 909

(9th Cir. 2001)).

[8] Turning to the modified categorical approach, we con-

sider “whether the record contains judicially noticeable docu-

ments which satisfy [Rosas-Castaneda’s] burden of

establishing by a preponderance of the evidence that his con-

trolled substance conviction under [Ariz. Rev. Stat. § 13-

3405] does not constitute a conviction of an aggravated felo-

ny.” Sandoval-Lua, 499 F.3d at 1129. The list of judicially

noticeable documents that this court may consider in applying

the modified categorical approach is limited to the “charging

document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the

defendant assented.” Id. (quoting Shepard, 544 U.S. at 16).

Where a record of conviction proves inconclusive, an alien

carries his burden of proving by a preponderance of the evi-

dence that she has not been convicted of an aggravated fel-

ony. Id. at 1130. The record in this case includes the charging

document and a copy of the plea agreement. Together these

documents reveal only that Rosas-Castaneda was convicted of

one count of “[a]ttempted transportation of marijuana for sale,

involving more than two pounds, a class 3 felony in violation

of Ariz. Rev. Stat. §§ 13-1001, 13-3405, 13-3401, 13-610, 13-

701, 13-702, and 13-801.”

3

The inclusion of the phrases “offer to transport for sale or import into

this state,” and “offer to sell or transfer marijuana” demonstrates that this

statute includes solicitation offenses. See Sandoval-Lua, 499 F.3d at 1130.

272 ROSAS-CASTANEDA v. HOLDER

[9] “If judicially noticeable facts would allow the defen-

dant to be convicted of an offense other than that defined as

a qualifying offense,” then those facts do not satisfy the modi-

fied categorical approach, which requires that a court “deter-

mine if the record unequivocally establishes that the

defendant was convicted of the generically defined crime.”

United States v. Navidad-Marcos, 367 F.3d 903, 909 (9th Cir.

2004) (quotation marks and internal citation omitted). Neither

document in the record of conviction produces any specific

information that definitively rules out the possibility that

Rosas was convicted of a solicitation offense under Ariz. Rev.

Stat. § 13-3405. We therefore hold the record of conviction

inconclusive, we grant Rosas-Castaneda’s petition for review,

vacate the BIA’s order denying him cancellation of removal,

and we remand to the BIA for proceedings consistent with

this opinion.

PETITION GRANTED.