Jose Medina-Lara v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS MEDINA-LARA, No. 13-70491

Petitioner,

Agency No.

v. A079-361-360

ERIC H. HOLDER, JR., Attorney

General, ORDER AND

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 25, 2014—Seattle, Washington

Filed October 10, 2014

Before: John T. Noonan, Michael Daly Hawkins,

and Morgan Christen, Circuit Judges.

Order;

Opinion by Judge Hawkins

2 MEDINA-LARA V. HOLDER

SUMMARY*

Immigration

The panel withdrew its opinion filed on September 19,

2014, and filed a new opinion granting Jose Medina-Lara’s

petition for review of the Board of Immigration Appeals’

decision finding him removable for his California state

conviction of an aggravated felony, controlled substance

offense, and firearm offense.

The panel, after finding that the government conceded

that California Health & Safety Code § 11351 is not a

categorical controlled substance offense, and that Medina

conceded that CHS § 11351’s controlled substance element

is divisible, proceeded to apply the modified categorical

approach. The panel held that because the written, amended

complaint and abstract of judgment did not provide clear and

convincing evidence regarding what Medina pleaded guilty

to, the government failed to carry its burden to establish that

his conviction was an aggravated felony or controlled

substance offense under the Immigration and Nationality Act.

The panel also held that the BIA erred in finding that the

enhancement to Medina’s CHS § 11351 conviction for

carrying a firearm in violation of California Penal Code

§ 12022(c) constituted a categorical firearm offense. The

panel found that former CPC § 12001(b), which defined

“firearm” at the time of Medina’s conviction, was overbroad

because recent California prosecutions demonstrated a

*

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-LARA V. HOLDER 3

realistic probability that the state could obtain a conviction

even if the firearm was an antique. The panel further held

that CPC § 12001(b) is indivisible, and that thus the modified

categorical approach could not be applied.

The panel also held that although the IJ and BIA did not

address Medina’s second controlled substance conviction

under CHS § 11377, the government was precluded from

relitigating the issue of whether Medina was removable for

that conviction. The panel granted Medina’s petition, vacated

the removal order, and remanded to the agency with the

instruction that it grant his motion to terminate proceedings.

COUNSEL

Lori K. Walls, Washington Immigration Defense Group,

Seattle, Washington, and Devin Theriot-Orr (argued), Gibbs

Houston Pauw, Seattle, Washington, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division,

Cindy S. Ferrier, Assistant Director, Brendan P. Hogan

(argued), Attorney, Civil Division, Office of Immigration

Litigation, United States Department of Justice, Washington,

D.C., for Respondent.

ORDER

The Opinion filed September 19, 2014, and appearing at

2014 WL 46544481 (9th Cir. Sept. 19, 2014), is withdrawn.

It may not be cited as precedent by or to this court or any

district court of the Ninth Circuit.

4 MEDINA-LARA V. HOLDER

OPINION

HAWKINS, Circuit Judge:

Jose Medina-Lara (“Medina”), a Mexican citizen and

lawful permanent resident of the United States, seeks review

of a final order of the Board of Immigration Appeals

(“Board”) authorizing his removal to Mexico. The Board

held that Medina is removable because his 2005 California

drug conviction is both an “aggravated felony” and a

“conviction relating to a controlled substance” and because a

sentence enhancement appended to that conviction is a

“firearm offense,” as those terms are defined by the

Immigration & Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(2). Because each of these conclusions is

erroneous, we grant the petition.

FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

Immigration authorities admitted Medina as a lawful

permanent resident in 2002. In 2005, a California court

convicted Medina of violating California Health & Safety

Code § 11351 and applied an enhancement for carrying a

firearm during that offense in violation of California Penal

Code § 12022(c). In 2007, a California court convicted

Medina of violating California Health & Safety Code

§ 11377. All convictions were entered pursuant to plea

agreements. We refer to these convictions by their statute

number (e.g., the “§ 11351 conviction”). We refer to the

§ 11351 and the § 11377 convictions collectively as “the drug

convictions.”

MEDINA-LARA V. HOLDER 5

After he completed his sentence for the § 11377

conviction, the Department of Homeland Security (“DHS”)

took Medina into custody and initiated removal proceedings.1

Although the charging documents in the record are somewhat

unclear, it appears that DHS alleged that the drug convictions

render Medina removable because each is both an aggravated

felony and a conviction relating to a controlled substance

under the INA.2 DHS further alleged the § 12022 conviction

renders Medina removable because it is a firearm offense

under the INA.3 Medina denied these allegations and, in the

alternative, applied for cancellation of removal.4

Proceedings before the agency were protracted. Medina

first appeared before an Immigration Judge (“IJ”) in San

Francisco, California, on November 17, 2009. Medina

1

Medina remained in DHS custody from the initiation of proceedings

through oral argument before this court. Shortly after oral argument and

consistent with our prior practice in such cases, we ordered the

government to release Medina. See Ragasa v. Holder, 743 F.3d 688, 688

(9th Cir. 2014) (order).

2

Non-citizens convicted of certain controlled substances offenses are

removable under 8 U.S.C. § 1227(a)(2)(B)(I). Non-citizens convicted of

“aggravated felonies” are removable under 8 U.S.C. § 1227(a)(2)(A)(iii),

which incorporates the definitions listed at 8 U.S.C. § 1101(a)(43). Here,

the relevant subparagraph is 8 U.S.C. § 1101(a)(43)(B), which pertains to

drug trafficking crimes. We refer to these terms of art under the INA as

an “aggravated felony” and a “controlled substance offense.”

3

Non-citizens convicted of certain offenses relating to firearms are

removable under 8 U.S.C. § 1227(a)(2)(C). We refer to this term of art

under the INA as a “firearm offense.”

4

Given our disposition of this petition, we do not discuss further or

consider Medina’s arguments pertaining to his application for cancellation

of removal.

6 MEDINA-LARA V. HOLDER

requested an initial continuance to obtain counsel and later

requested additional time to pursue a U-visa. For its part,

DHS requested several continuances to supplement the record

with documents pertaining to Medina’s convictions. This

was necessary because the parties and the IJ seemed to agree

early on in the proceedings that the drug convictions were not

categorically predicate offenses under the INA, thus requiring

application of the modified categorical approach as described

in Shepard v. United States, 544 U.S. 13 (2005).

The first round of IJ proceedings took about six months

and involved at least five separate requests by the IJ to have

the government supply Shepard-compliant documents which

would unambiguously establish the nature of Medina’s

convictions. At an early hearing, DHS represented that it was

seeking additional documents to supplement the record, and

the IJ granted a continuance, in part, to allow the government

to respond to that request.5 When, at a hearing six weeks

later, the government produced no new documents, the IJ got

specific, noting that “there must have been a super[s]eding

charging document at some point and we don’t have that” in

the record. Once again, the IJ requested additional

documentation, and later on in the same hearing, it appears

DHS’s attorney agreed to provide it, saying “[w]e need to get

the super[s]eding indictment.” The IJ granted another

continuance.6 Two weeks later, the government failed to

produce the requested documents and yet again asked for

more time. The IJ granted the government’s request, saying,

“let’s . . . see what the government can come up with by way

5

Hearing of December 1, 2009.

6

Hearing of January 19, 2010.

MEDINA-LARA V. HOLDER 7

of documents and the more the better.”7 Two weeks after

that, the government did submit “additional documents”;

however, even these appear to have been insufficient, because

the IJ requested further Shepard-compliant documents so that

the court could “get into a position where there’s no

ambiguity whatsoever about [Medina]’s convictions.” The IJ

specifically noted he wanted to avoid “a situation where it

turns out later someone makes an assertion he was convicted

of something and there’s a dispute about it.”8

Two and a half months later, the parties reconvened. The

IJ, noting that the 2004 complaint contained “a complicated

set of charges,” called the minutes of the state court

proceedings “a jumble” and once again asked the government

to clarify if it had requested a transcript of Medina’s 2005

plea colloquy, saying, “I think [the transcript] ought to be

requested.” Because the government was not sure if it had

requested the documents, the IJ gave the government one

more month to supplement the record. Medina, by now

detained for five months, consented to the continuance even

though he was ready to proceed on that date.9 Finally, at a

June 6, 2010, hearing, the government admitted it was unable

to produce the transcript and instead attempted to submit a

probation report to clarify the nature of Medina’s convictions.

The IJ excluded that report under Shepard.10

7

Hearing of February 9, 2010.

8

Hearing of February 25, 2010.

9

Hearing of May 11, 2010.

10

We do not recount the various continuances to fault the IJ for a failure

to handle this matter expeditiously. It is important to note that Medina

joined many of these requests for a continuance because he was seeking

8 MEDINA-LARA V. HOLDER

Though the government neither produced the requested

plea colloquy nor any additional unambiguous documents, the

IJ nevertheless ordered Medina’s removal, holding that each

drug conviction is both an aggravated felony and a controlled

substance offense under the INA and that the § 12022

conviction is a firearm offense under the INA. Medina

appealed to the Board. In an order dismissing Medina’s

appeal (the “2010 order”), the Board held that Medina was

removable on all five grounds identified by the IJ; put another

way, the Board reached a conclusion as to all of DHS’s

allegations.

Medina then sought review in this court. Before we could

hear the case on the merits, the Board sua sponte reopened

Medina’s case to reconsider his application for cancellation

of removal. Divested of jurisdiction, we dismissed the

pending petition for review. Medina-Lara v. Holder, 10-

73377, ECF No. 48 (9th Cir. Feb. 16, 2012) (order).

The Board remanded the reopened case to the IJ for

reconsideration of Medina’s cancellation application. At this

point, litigation virtually began anew. Following a transfer of

venue to the immigration court in Tacoma, Washington,

where Medina was detained, Medina renewed his efforts to

terminate removal proceedings based on his theory that none

of his convictions suffices as a predicate for removal,

initiated state post-conviction proceedings in an effort to

vacate his California convictions, and restarted his efforts to

obtain a U-visa. DHS opposed these efforts and sought a new

removal order. The Tacoma-based IJ ordered Medina’s

removal. The IJ held that § 11351, though not categorically

certification for a U-visa. We recite the procedural history to illustrate the

ample opportunity DHS had to supplement the record.

MEDINA-LARA V. HOLDER 9

an aggravated felony or a controlled substances offense, is

divisible and that an application of the modified categorical

approach showed that the § 11351 conviction constitutes both

an aggravated felony and a controlled substance offense. The

IJ further held that § 12022 is categorically a firearm offense

under the INA, and thus ordered Medina removed on that

ground as well. The IJ did not address the § 11377

conviction. Medina appealed to the Board, which affirmed,

also without addressing the § 11377 conviction. Medina

again sought review in this court.

JURISDICTION AND STANDARD OF REVIEW

Notwithstanding 8 U.S.C. § 1252(a)(2)(D), we have

jurisdiction to determine our jurisdiction and to determine as

a question of law whether the underlying predicate offenses

render Medina removable. 8 U.S.C. § 1252(a)(2)(D); Malilia

v. Holder, 632 F.3d 598, 601–02 (9th Cir. 2011). While we

may consider only those arguments raised in administrative

proceedings, Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004), we deem exhausted any issues addressed by the Board.

Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010).

Where, as here, the Board incorporates the IJ’s decision

into its own without citing Matter of Burbano, 20 I. & N.

Dec. 872 (BIA 1994), this court will review the IJ’s decision

to the extent incorporated. Ahir v. Mukasey, 527 F.3d 912,

916 (9th Cir. 2008) (citation omitted). Thus, we refer to the

Board and IJ collectively as “the agency.” We review the

agency’s legal conclusions de novo. Malilia, 632 F.3d at 602.

10 MEDINA-LARA V. HOLDER

ANALYSIS

I. The § 11351 Conviction

We hold that Medina’s § 11351 conviction is neither an

aggravated felony nor controlled substance offense under the

INA.

A. Breadth and Divisibility

To determine whether the § 11351 conviction is a

predicate aggravated felony or controlled substance offense,

we use the framework set out in Taylor v. United States,

495 U.S. 575 (1990), as refined by its progeny, most notably

Descamps v. United States, 133 S. Ct. 2276 (2013).11 The

Taylor-Descamps framework lays out a three-step process for

determining whether a specific conviction is a predicate

offense mandating removal under the INA.12 At the first step,

we ask whether the statute of conviction is a categorical

match to the generic predicate offense; that is, if the statute of

11

As we have noted, the agency held that the § 11351 conviction is both

an aggravated felony and a controlled substance offense. Though these

are two distinct holdings, we are able to consider them together because

both turn on the same legal issue, namely, whether the list of California

substances incorporated into § 11351 is overbroad compared to the federal

Controlled Substances Act. See 8 U.S.C. § 1101(a)(43)(B) (aggravated

felony) (defining “controlled substance[s]” as those appearing in the

Schedules authorized by 21 U.S.C. § 802); 8 U.S.C. § 1227(a)(2)(B)(i)

(controlled substance offense) (also referring to 21 U.S.C. § 802).

12

The Taylor-Descamps line of cases developing and refining the

categorical and modified categorical approach applies with equal force in

both sentencing and immigration proceedings. E.g., Aguilar-Turcios v.

Holder, 740 F.3d 1294 (9th Cir. 2014); see Rendon v. Holder, – F.3d –, –,

No. 10-72239, 2014 WL 4115930, at *2 n.5 (9th Cir. Aug. 22, 2014).

MEDINA-LARA V. HOLDER 11

conviction criminalizes only as much (or less) conduct than

the generic offense. Taylor, 495 U.S. at 600; Rendon, 2014

WL 4115930, at *2. If so, the inquiry ends, because the

conviction categorically constitutes a predicate offense. If

not, we move on to step two and ask if the statute of

conviction’s comparatively “overbroad” element is

divisible.13 If not, then our inquiry ends, because a conviction

under an indivisible, overbroad statute can never serve as a

predicate offense. See Descamps, 133 S. Ct. at 2286. But if

the overbroad element (or elements) is divisible, we then

continue to the third step, an application of the modified

categorical approach, which we describe in more detail

below.

Here, because the agency proceeded to step three and

relied upon a modified categorical analysis, we, too, must

consider all three issues: breadth, divisibility, and the

modified categorical approach. The parties’ concessions

make the analysis simple at steps one and two. Our focus is

on the controlled substance element of § 11351.14 The

13

We discuss the concept of divisibility in great detail in Rendon, 2014

WL 4115930, at *2–*3. Because, as we discuss below, we are able to

resolve this petition without delving into the fine details of the divisibility

analysis, we have no occasion to apply Rendon’s framework.

14

In pertinent part, § 11351 reads:

[E]very person who possesses for sale or purchases for

purposes of sale (1) any controlled substance specified

in subdivision (b), (c), or (e) of Section 11054,

specified in paragraph (14), (15), or (20) of subdivision

(d) of Section 11054, or specified in subdivision (b) or

(c) of Section 11055, or specified in subdivision (h) of

12 MEDINA-LARA V. HOLDER

government concedes that § 11351 is not a categorical match

to the generic offense, because California’s list of controlled

substances includes one or more substances not controlled by

federal law. See also Cheuk Fung S-Yong v. Holder, 600 F.3d

1028, 1034 (9th Cir. 2010) (“We have previously found that

California law regulates the possession and sale of many

substances that are not regulated by the [federal] CSA.”).

This concession ushers us to step two, where Medina

concedes that our recent decision in Coronado v. Holder,

747 F.3d 662 (9th Cir. 2014), amended by – F.3d –, 2014 WL

3537027 (July 19, 2014), forecloses his previous argument

that § 11351’s controlled substance element is indivisible.

Based on this concession, we assume, without deciding, that

§ 11351’s controlled substance element is divisible; that is,

that the specific controlled substance (e.g., “cocaine”) is an

element of the crime.

B. Modified Categorical Approach

We now confront the third step in the Taylor-Descamps

procedure: an application of the modified categorical

approach. Under this approach, it “makes no difference” if

Medina actually possessed or purchased, for sale, cocaine.

Rather, what matters is whether Medina was convicted of

possessing or purchasing, for sale, cocaine, where cocaine is

an element of the crime. To make this determination, the

agency (and we) may look to only those documents

Section 11056, or (2) any controlled substance

classified in Schedule III, IV, or V which is a narcotic

drug, shall be punished by imprisonment . . . .”

The statute has been amended since Medina’s conviction, but not in

relevant part. The operative, quoted language remains the same.

MEDINA-LARA V. HOLDER 13

sanctioned by Shepard, namely: “the terms of the charging

document, the terms of a plea agreement or transcript of

colloquy between judge and defendant in which the factual

basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.” 544 U.S. at

26.

We “permit[] reliance on an abstract of judgment in

combination with a charging document to establish that the

defendant pled guilty to a generic crime under the modified

categorical approach.” Ramirez-Villalpando v. Holder,

645 F.3d 1035, 1040 (9th Cir. 2011). Sitting en banc, we

have held that “[i]n order to identify a conviction as the

generic offense through the modified categorical approach,

when the record of conviction comprises only the indictment

and the judgment, the judgment must contain the critical

phrase ‘as charged in the Information.’” United States v.

Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (quoting

Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir. 2004)).

Subsequently, we have not been so exacting as to require

that the phrase “as charged in the Information” appear on the

abstract of judgment. E.g., Cabantac v. Holder, 736 F.3d 787

(9th Cir. 2012) (per curiam) (looking to the allegations in a

complaint where the abstract of judgment and transcript of

the plea colloquy clearly referenced the count to which the

defendant pleaded guilty); id. at 793–94 (“We hold that

where, as here, the abstract of judgment or minute order

specifies that a defendant pleaded guilty to a particular count

of the criminal complaint or indictment, we can consider the

facts alleged in that count.”); Ramirez-Villalpando, 645 F.3d

at 1041 (similar).

14 MEDINA-LARA V. HOLDER

However, we have never retreated from Vidal’s core

requirement: When a court using the modified categorical

approach to determine whether an underlying conviction is a

predicate offense relies solely on the link between the

charging papers and the abstract of judgment, that link must

be clear and convincing. Put another way, where, as here, the

government bears the burden of proof to show by “clear and

convincing evidence” that the § 11351 conviction is a

predicate offense, 8 U.S.C. § 1229a(c)(3)(A); accord Fregozo

v. Holder, 576 F.3d 1030, 1039 (9th Cir. 2009), the

government must demonstrate that the abstract clearly and

convincingly shows that Medina pleaded guilty to the element

as alleged in the complaint.

The agency relied on two Shepard-approved documents,

a written, amended complaint and an abstract of judgment,

and so we look only to these. The amended complaint, which

alleges five counts of misconduct, seems to have two docket

numbers. The first, typewritten, is “04121514.” The second,

handwritten, is “SS 043284.” The complaint is marked

“Filed in Court” on April 20, 2005. Count “003” of the

complaint alleges that “on or about December 20, 2004, the

crime of possession for sale of a controlled substance, in

violation of Section 11351 of the Health and Safety Code, a

felony, was committed by Jose Luis Medina, who did

willfully and unlawfully possess for sale a controlled

substance, to wit, cocaine.”15 The complaint is certified by

the clerk of the Superior Court of Monterey County,

California.

15

In the original document, several portions of the quoted material

appear in all capital letters.

MEDINA-LARA V. HOLDER 15

Box 1 on the abstract of judgment lists Medina’s two

convictions. The first row in this box deals with Medina’s

§ 11351 conviction. (The second row pertains to the § 11377

conviction. We discuss that conviction below.) Under

“Count,” the document lists “3A.” Under “Code,” it lists

“HS.” Under “Section No.,” it lists “11351.” Under

“Crime,” it lists “Poss cont subs.” Under “Year Crime

Committed,” it lists “2004.” And under “Date of

Conviction,” it lists “04-20-05.”16

Box 2 pertains to “Enhancements.” The first line in this

box (and the only line containing any information) lists under

“Count” the number “3” and under “Enhancement” the

reference to “PC 12022(c).”17 The only other relevant “box”

on this form appears toward the top-right corner. It is labeled

“-A” and contains this number: “SS043284A.”

Here, the government has failed to carry its burden of

showing a clear and convincing link between the abstract and

the charging papers. The abstract states Medina pleaded to

count “3A,” not count “3” as it is denominated in the

complaint. The Tacoma Immigration Judge posited that the

“3A” reflected that the third count of the complaint contained

both the § 11351 charge and the § 12022 enhancement, in that

order, and so the “A” referred to the main charge rather than

the count as a whole or the enhancement. The government

defends this theory and also advances its own, namely, that

the “3A” refers to the “-A” box toward the upper right-hand

side of the abstract, in which a docket number is printed.

16

Other information pertaining to Medina’s sentence is also listed. It is

not relevant to this petition.

17

This line also contains sentencing information irrelevant here.

16 MEDINA-LARA V. HOLDER

While these are both plausible explanations of what the

abstract might mean, they suffer a common and fatal flaw.18

If, as the IJ posited, the “3A” were a function of the

bifurcation of the third count of the complaint, we would

expect the enhancement listed on this same abstract to be

coded “3B.” Likewise, as the government argues in the

alternative, if the “A” in the “3A” relates to the case number

in the corner box, we would expect the enhancement to be

coded “3A.” But the enhancement is coded “3” with no letter

appended, casting significant doubt on both of the

government’s theories.

While the government’s theories are certainly plausible,

just as plausible is that the “A” in “3A” stands for

“amended.” Indeed, the record suggests that count 3 might

have been amended beyond even the written amendment in

the administrative record. The San Francisco IJ noted that

“there is a disconnect between . . . the charging document and

the abstract because the counts don’t correspond.” By way of

explaining why this might be, the IJ went on to speculate that

“there must have been a super[s]eding charging document at

some time.” The DHS attorney seemed to agree, saying, “We

need to get the super[s]eding indictment.” Moreover, because

California allows for indictments to be amended orally in

open court, see People v. Sandoval, 43 Cal. Rptr. 3d 911,

926–27 (Cal. Ct. App. 2006), there would not necessarily be

any written record of a superseding indictment in the state

court papers.

18

Even if the government’s alternative argument were persuasive, we

could not entertain it because we lack authority to affirm the Board on any

ground not stated in its decision. Navas v. I.N.S., 217 F.3d 646, 658 n.16

(9th Cir. 2000).

MEDINA-LARA V. HOLDER 17

Against this backdrop, we are hard-pressed to say that

there is a “clear and convincing” link between the “3A” in the

abstract and the “3” in the amended complaint. There are

three competing explanations for the extra letter, and none is

wholly satisfactory. And, problematically, this still does not

exhaust the ambiguities between the documents.

The docket number on the abstract also has an

unexplained “A” appended to it. The IJ speculated that this

extra letter was the result of a “clerical error.” Standing

alone, perhaps this would not negate an otherwise clear and

convincing showing. But, as we have discussed above, this

extra letter is far from the only ambiguity in the purported

link between the complaint and the abstract and may also

refer to an amended complaint not present in the

administrative record.

We note that the record does not contain any serious

suggestion that Medina was apprehended with any substance

other than one controlled by federal law. But, as we observed

above, under Descamps, whether Medina actually possessed

or purchased, for sale, cocaine “makes no difference.” 133 S.

Ct. at 2286. We must look only to the elements to which

Medina pleaded guilty. Because on this record it is not “clear

and convincing” what Medina pleaded guilty to, it has not

been established that his § 11351 conviction is an aggravated

felony or a controlled substance offense.

18 MEDINA-LARA V. HOLDER

II. The § 12022 Conviction

Medina also challenges the agency’s holding that his

§ 12022 conviction19 is a firearm offense as that term is

defined by 8 U.S.C. § 1227(a)(2)(C).20 Here, unlike the

§ 11351 conviction discussed above, the agency stopped at

the first step of the Taylor-Descamps analysis, holding that

the statute of conviction is a categorical match to the generic

offense.

For this proposition, the agency relied on Gil v. Holder,

651 F.3d 1000 (9th Cir. 2011). Indeed, Gil seems on point,

and if Gil were still good law, it would appear to preclude

Medina’s challenge. Recognizing this, Medina directs us to

our recent decision in United States v. Aguilera-Rios, – F.3d

–, 2014 WL 4800292 (9th. Cir. Sept. 29, 2014), which holds

that Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), overruled

Gil. The government contends that Aguilera-Rios does not

control the outcome here.

Medina has the better argument. The issue in Gil was

whether California’s definition of “firearm” was a categorical

19

The version of § 12022(c) in effect in 2004, the time of Medina’s

arrest, provides, in relevant part, that “any person who is personally armed

with a firearm in the commission of a violation or attempted violation of

Section 11351 . . . of the Health and Safety Code, shall be punished by an

additional and consecutive term of imprisonment in the state prison for

three, four, or five years.”

20

The government argues Medina did not administratively exhaust this

argument. Because the Board clearly addressed it, so, too, may we. Kin,

595 F.3d at 1055. Even if Kin were not the law, Medina’s pro se brief

specifically incorporated into it the arguments presented in a prior filing,

which challenges the agency’s legal conclusion that the § 12022

conviction is a firearms offense.

MEDINA-LARA V. HOLDER 19

match to the federal definition. The INA expressly excludes

“antique firearms” from the generic definition of a “firearm.”

See 8 U.S.C. § 1227(a)(2)(C) (incorporating into this

provision the definition of “firearm” located at 18 U.S.C.

§ 921(a)); 18 U.S.C. § 921(a)(3) (“The term ‘firearm’ . . . .

does not include an antique firearm.”). At the time of his

conviction, the term “firearm” in § 12022 was defined by

former California Penal Code § 12001(b), which does not

exclude antique firearms.21 Thus, a plain language

comparison of the statutes would suggest that § 12001(b) is

overbroad.

However, the Board had determined in Matter of Mendez-

Orellana, 25 I. & N. Dec. 254, 255–56 (BIA 2010), that the

antique firearm exception was an affirmative defense to

removability, and Gil accepted that reading of the statute.

Because recourse to a hypothetical affirmative defense (i.e.,

one not actually advanced in the underlying proceeding) may

not necessarily impact a subsequent court’s Taylor analysis

of a statute of conviction, Gil held that California’s definition

of a firearm categorically matched the federal definition. Cf.

Aguilera-Rios, 2014 WL 4800292 at *8 n.4 (“We are not

holding that Gil’s distinction between affirmative defenses

and elements of a crime is invalid for all categorical analyses.

Rather, we read Moncrieffe as applying particularly to

definitional provisions, and as holding that as to such

provisions, the allocation of the burden of proof is not

relevant to a categorical analysis.”).

21

In 2004, § 12001(b) read: “As used in this title, ‘firearm’ means any

device, designed to be used as a weapon, from which is expelled through

a barrel a projectile by the force of any explosion or other form of

combustion.”

20 MEDINA-LARA V. HOLDER

Aguilera-Rios holds that Moncrieffe implicitly rejects

Gil’s analysis and mandates the conclusion that California’s

firearm definition is overbroad. 2014 WL 4800292 at *8.

We do not repeat Aguilera-Rios’s reasoning, here; as a three-

judge panel, our task is to determine whether it binds us, or if,

as the government suggests, Aguilera-Rios is distinguishable.

We hold that Aguilera-Rios applies to any California statute

based on the definition of “firearm” formerly appearing at

§ 12001(b). Although the underlying conviction in Aguilera-

Rios was obtained under former California Penal Code

§ 12021(c)(1), that statute incorporates by reference the same

definition of “firearm” as does § 12022(c), the statute of

Medina’s conviction. This is sufficient to bind us to

Aguilera-Rios’s holding.

The government argues that there is only a “theoretical

possibility” and not a “realistic probability” that California

would prosecute an individual under § 12022(c) where the

firearm in question was antique. See Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007). To support this argument,

the government points to the absence of any reported

California case upholding a § 12022(c) conviction based on

possession of an antique firearm. By contrast, Medina notes

that § 12022(c) simply incorporates by reference the

definition of firearm appearing at former § 12001(b), and that

there are a good many cases in which California obtained a

conviction based on that definition in which the firearm in

question was antique.

Medina is correct that our inquiry must focus on

California’s interpretation of former § 12001(b) rather than

convictions based on § 12022(c). No conviction could have

arisen under former § 12001(b), because it simply defined the

term “firearm” as used in Title 2 of Part 4 of the California

MEDINA-LARA V. HOLDER 21

Penal Code. Other statutes in that Title criminalize conduct.

It does not matter if the conduct is criminalized by former

§ 12021(c)(1), as in Aguilera-Rios; by § 12022(c), as here; or

by former § 12025(a), as in Gil. Because the common link in

these cases is the § 12001(b) definition of firearm, our

analysis should center on that statute. Indeed, the agency

implicitly conceded as much when it cited Gil to sustain the

firearms charge against Medina. Because Gil analyzed

§ 12025(a), the Board could have applied it to Medina’s case

only if Gil’s holding was rooted in the definition appearing at

former § 12001(b).

Having framed the inquiry correctly, Medina’s challenge

easily passes the Duenas-Alvarez bar. California obviously

prosecutes individuals for firearm crimes arising under the

former § 12001(b) definition even when the firearm in

question is antique. Aguilera-Rios cites several appellate

cases from the past decade in which California courts held

that, as for example, a “replica muzzle-loading pistol,” a

“family heirloom replica single-shot muzzle-loading rifle

incapable of using modern ammunition,” and a “black

powder, muzzle-loading firearm,” are firearms within the

meaning of former § 12001(b). Aguilera-Rios, 2014 WL

4800292 at *7 (internal quotation marks and citations

omitted); see also, e.g., People v. McGraw, C041322, 2004

WL 928379 (Cal. Ct. App. 2004) (unpub.) (sustaining

conviction where firearm was century-old, disassembled

antique revolver). These recent examples of California

prosecutions demonstrate a “realistic probability” that

California may obtain a conviction based on the § 12001(b)

definition even where the firearm in question is antique.

Thus, because § 12001(b) is overbroad, the Board’s

conclusion that § 12022 is categorically a firearm offense

cannot stand.

22 MEDINA-LARA V. HOLDER

Although the agency did not assess the divisibility of

former § 12001(b), we may proceed to do so without first

remanding to the Board. Divisibility is a purely legal

question which does not require any additional fact-finding.

Cf. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1080 (9th Cir.

2007) (declining remand where no further fact-finding

remains to be done). We owe no deference to the Board’s

interpretation of a criminal statute it does not administer, see

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133 (9th Cir.

2006) (en banc), meaning that if we remanded to the Board to

determine whether former § 12001(b) is divisible, we would

review that conclusion de novo rather than under Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984). Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th

Cir. 2008). In short, the interests of judicial and

administrative economy dictate that we consider divisibility

at this juncture.

Former § 12001(b) is indivisible. As we discuss above,

the statute does not even mention antique firearms. Like

California Penal Code § 459, the statute analyzed in

Descamps, former §§ 12001(b) and 12022, when read

together, clearly criminalize a swath of conduct not

contemplated by the generic offense. This is not a situation

where the statute “effectively creates ‘several different

crimes,’” Descamps, 133 S. Ct. 2285 (quoting Nijhawan v.

Holder, 557 U.S. 29, 41 (2009)), where “at least one, but not

all of those crimes matches the generic version.” Id. As in

Descamps, there is “a simple discrepancy between [the]

generic [crime] and the crime established in” the statute of

conviction. Id. This renders the statute indivisible and thus

outside the “narrow range of cases” in which the modified

categorical approach can be employed. Id. at 2283 (quoting

Taylor, 495 U.S. at 602). Accordingly, as a matter of law, we

MEDINA-LARA V. HOLDER 23

hold that Medina’s § 12022 conviction is not a predicate for

removal under 8 U.S.C. § 1227(a)(2)(C).

III. Disposition of the Petition

Finally, we must consider how to dispose of this petition.

To recap, because we have determined that, as a matter of

law, Medina’s convictions under § 11351 and § 12022 are not

predicate offenses for removal under the INA, there is no

reason to remand on those counts. There remains, however,

the matter of Medina’s § 11377 conviction.

Medina asks that we remand with instructions to

terminate the removal proceedings outright. This would be

contrary to our ordinary practice of remanding for further

proceedings consistent with our disposition, leaving to the

agency’s discretion how to proceed (subject, of course, to

subsequent judicial review). See generally Fernandez-Ruiz,

466 F.3d at 1133 (discussing remand rule). However, for a

number of factors this is the rare case where remand is

inappropriate.

First, the government’s charge of removability based on

the § 11377 conviction suffers the same legal defect as the

agency’s decision to order removal based on the § 11351

conviction: There is no clear and convincing evidence in the

record linking the abstract of judgment and the charging

document. Where, as here, only purely legal issues remain,

it “would serve no purpose” to remand to the agency. Karimi

v. Holder, 715 F.3d 561, 565 (4th Cir. 2013); see also Ruiz-

Vidal, 473 F.3d at 1080 (declining remand in similar

situation).

24 MEDINA-LARA V. HOLDER

Second, the government has not suggested how it would

cure this deficiency on remand. In the initial round of

proceedings, the San Francisco IJ gave the government fair

warning that it had a flimsy record in this case. Anticipating

the eventual need to turn to the modified categorical

approach, the IJ granted many continuances, several of which

were for the express purpose of allowing the government to

supplement the record. And while the government could

have introduced additional evidence before the Tacoma IJ, it

did not do so. The government’s failure over the course of

several years to produce any Shepard-compliant documents

relevant to the § 11377 conviction suggests its ultimate

inability to do so. Cf. Ruiz-Vidal, 473 F.3d at 1080 (declining

to remand where “the record on remand would consist only

of those documents already in the record”).

Third, we note that in its 2010 order the Board affirmed

the San Francisco IJ’s determination that the § 11377

conviction rendered Medina removable. The Board’s

subsequent sua sponte reopening of the case vacated that

order, Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th

Cir. 2008), overruled on other grounds by Marmolejo-

Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en

banc), and so it is not before us today. We do not know why

the agency, which once believed that the § 11377 conviction

was sufficient to order removal, decided to ignore that

conclusion in the second round of administrative proceedings.

But it is clear that DHS has had ample opportunity to build

the record. Two different IJs and the Board have considered

the § 11377 conviction, but ultimately did not rest their

decision upon that ground. The government has given us no

reason to provide it a “third bite at the apple,” Siwe v. Holder,

742 F.3d 603, 611–12 (5th Cir. 2012) (internal brackets

omitted) (quoting Zhu v. Gonzales, 493 F.3d 588, 602 (5th

MEDINA-LARA V. HOLDER 25

Cir. 2007)), especially since it has considered the issue, see

Pascua v. Holder, 641 F.3d 316, 319 (9th Cir. 2011) (denying

remand where agency had considered a potentially dispositive

issue twice previously).

Fourth, under our case law, the government is precluded

from relitigating the § 11377 issue. In the immigration

context, a party is precluded from relitigating an issue where

“(1) the issue at stake was identical in both proceedings;

(2) the issue was actually litigated and decided in the prior

proceedings; (3) there was a full and fair opportunity to

litigate the issue; and (4) the issue was necessary to decide

the merits.” Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir.

2012). Here, the government put the § 11377 issue at stake

when it charged Medina with removability on the basis of that

conviction. The issue was actually litigated before the San

Francisco IJ, before the Board in 2010, and then again before

the Tacoma IJ, all while Medina remained in DHS detention.

Furthermore, for the reasons described above, the government

has had a full opportunity to litigate the immigration

consequences of the § 11377 issue. And finally, whether

Medina’s § 11377 conviction is a removable offense is

obviously necessary to determine his ultimate removability.

With these factors in mind, we hold the government is

precluded from relitigating the § 11377 issue.

CONCLUSION

The government has failed to carry its burden to show by

clear and convincing evidence that Medina has been

convicted of an aggravated felony or a controlled substance

offense. Similarly, Supreme Court case law issued

subsequent to the agency action reviewed here has foreclosed

on the government’s contention that Medina had been

26 MEDINA-LARA V. HOLDER

convicted of a firearm offense. Because a substantive remand

is inappropriate for the reasons stated above, we GRANT

Medina’s petition for review, VACATE the removal order,

and REMAND to the agency with the instruction that it grant

Medina’s motion to terminate proceedings.

PETITION GRANTED.