Sandoval-Lua v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR MANUEL SANDOVAL-LUA, 

Petitioner, No. 05-77103

v.

 Agency No.

A43-369-153

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 20, 2007—San Francisco, California

Filed August 28, 2007

Before: Alfred T. Goodwin, Sidney R. Thomas, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Concurrence by Judge Thomas

10645

10648 SANDOVAL-LUA v. GONZALES

COUNSEL

Lamar Peckham, Santa Rosa, California, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,

Michael P. Lindemann, Assistant Director, Douglas E. Gins-

burg, Senior Litigation Counsel, Department of Justice,

Washington, D.C., for the respondent.

SANDOVAL-LUA v. GONZALES 10649

OPINION

BEA, Circuit Judge:

Victor Manuel Sandoval-Lua (“Lua”) petitions for review

of the Board of Immigration Appeals’ (“BIA”) decision

affirming a final order of removal, seeking relief from con-

ceded removability. The BIA affirmed the Immigration

Judge’s (“IJ”) decision finding Lua removable on the basis of

his conviction for a controlled substance offense, 8 U.S.C.

§ 1227(a)(2)(B)(i), and denied Lua’s application for cancella-

tion of removal. The issue before us is whether Lua has car-

ried his burden to demonstrate eligibility for cancellation of

removal. 8 U.S.C. § 1229b(a). More precisely, we consider

whether Lua has demonstrated that his prior state conviction

under California Health & Safety Code § 11379(a) is not an

“aggravated felony” as defined in the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B).

Lua has conceded that his conviction under California

Health and Safety Code § 11379(a) renders him removable

pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted

of a controlled substance offense. Although the government

initially alleged Lua’s conviction under California Health &

Safety Code § 11379(a) rendered him removable because it

was both a controlled substance offense and an aggravated

felony under 8 U.S.C. § 1227(a)(2)(A)(iii), the government

withdrew the aggravated felony charge as a basis for Lua’s

removal. Lua is therefore not removable on the basis of hav-

ing committed an aggravated felony pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(iii). Because the government withdrew this

charge, the government did not bear the burden of establish-

ing by “clear and convincing evidence that [Lua] is deport-

able” on the basis of having committed an aggravated felony.

8 C.F.R. § 1240.8(a).

Thus, this is a case in which a removable alien is seeking

discretionary relief from removal by showing that he is eligi-

10650 SANDOVAL-LUA v. GONZALES

ble for cancellation of removal under 8 U.S.C. § 1229b(a)

because his § 11379(a) conviction did not constitute an aggra-

vated felony under 8 U.S.C. § 1101(a)(43)(B). Accordingly,

we review to determine whether Lua has carried his burden of

establishing eligibility. 8 C.F.R. § 1240.8(d).

Applying the principles of Taylor v. United States, 495

U.S. 575 (1990), we first conclude that § 11379(a) is categori-

cally broader than the definition of aggravated felony in 8

U.S.C. § 1101(a)(43)(B). We then hold that the judicially

noticeable documents in the administrative record satisfy

Lua’s burden of establishing by a preponderance of the evi-

dence that his earlier conviction did not constitute an aggra-

vated felony. We therefore grant Lua’s petition.

I.

Lua is a native and citizen of Mexico who was admitted

into the United States in San Diego, California, as a lawful

immigrant on March 2, 1992. On May 8, 2002, Lua was con-

victed in the Superior Court of California for violating Cal.

Health & Safety Code § 11379(a),1 and was sentenced to three

years imprisonment. Based on Lua’s § 11379(a) conviction,

the Immigration and Naturalization Service (“INS”) served

Lua with a Notice to Appear on November 25, 2003, charging

him with removability under both 8 U.S.C. § 1227(a)(2)(B)(i),2

1

Cal. Health & Safety Code § 11379(a), entitled “Transportation, sale,

furnishing, etc.; punishment,” states: “every person who transports,

imports into this state, sells, furnishes, administers, or gives away, or

offers to transport, import into this state, sell furnish, administer, or give

away, or attempts to import into this state or transport any controlled sub-

stance . . . shall be punished by imprisonment in the state prison for a

period of two, three, or four years.”

2

8 U.S.C. § 1227(a)(2)(B)(i) states in relevant part: “Any alien who at

any time after admission has been convicted of a violation of . . . any law

or regulation of a State, the United States, or a foreign country relating to

a controlled substance (as defined in section 802 of Title 21) . . . is deport-

able.”

SANDOVAL-LUA v. GONZALES 10651

as an alien convicted of a controlled substance offense, and 8

U.S.C. § 1227(a)(2)(A)(iii),3 as an alien convicted of an

aggravated felony related to the illicit trafficking in a con-

trolled substance. Lua admitted the factual allegation, con-

tained in the Notice to Appear, that he was convicted under

Cal. Health & Safety Code § 11379(a), and he conceded that

he was subject to removal pursuant to 8 U.S.C.

§ 1227(a)(2)(B)(i), as an alien convicted of a controlled sub-

stance offense. The INS withdrew the charge under 8 U.S.C.

§ 1227(a)(2)(A)(iii) that Lua was removable as an alien con-

victed of an aggravated felony.

At a February 2, 2004, hearing, the IJ found Lua removable

as charged but granted him cancellation of removal. 8 U.S.C.

§ 1229b(a). The IJ held that the Criminal Complaint and the

Abstract of Judgment from Lua’s controlled substance con-

viction did not sufficiently demonstrate that Lua’s controlled

substance offense under § 11379(a) constituted an aggravated

felony under immigration laws. In recognizing that

§ 11379(a) is divisible—such that some activities made crimi-

nal by the statute constitute an aggravated felony for purposes

of eligibility for cancellation of removal but other activities

do not—the IJ stated that Lua’s testimony alone in connection

with the Criminal Complaint and the Abstract of Judgment

was not sufficient to show that his controlled substance con-

viction also constituted an aggravated felony. Thus, the IJ

found Lua eligible for cancellation of removal and granted

Lua such cancellation.

The BIA affirmed the IJ’s finding that Lua was removable

but reversed the IJ’s grant of cancellation of removal. The

BIA found that Lua’s conviction under California Health and

Safety Code § 11379(a) constituted an aggravated felony, ren-

dering him ineligible for cancellation of removal, because

Lua’s conviction qualified as a “drug trafficking crime.”

3

8 U.S.C. § 1227(a)(2)(A)(iii) states: “Any alien who is convicted of an

aggravated felony at any time after admission is deportable.”

10652 SANDOVAL-LUA v. GONZALES

Since the BIA found that Lua’s conviction for transportation

of methamphetamine was punishable under the Controlled

Substances Act, and was a “felony” under federal law,4 the

BIA held that Lua’s conviction was a “drug trafficking crime”

and therefore was an “aggravated felony.” Because an “alien

convicted of an aggravated felony is ineligible for cancella-

tion of removal,” the BIA sustained the Department of Home-

land Security’s (“DHS”) appeal and ordered Lua removed to

Mexico. One BIA Board Member concurred in the decision.

The concurring Board Member stated:

The criminal complaint leading to the respondent’s

“transportation” of methamphetamine conviction

charged him with the full range of conduct punished

by § 11379(a) of the California Health and Safety

Code . . . The abstract of judgment does describe the

crime as “transportation of meth.,” but this descrip-

tion seems to derive simply from the title of

§ 11379(a) . . . [Lua] bears the burden of proof to

show statutory eligibility . . . [and] must show that

he “has not been convicted of any aggravated felo-

ny” . . . [Lua’s] own description of the crime would

not suggest that he was simply convicted for solicita-

tion of a crime. I therefore agree that the Immigra-

tion Judge erred in granting relief, but I do so

because the respondent has not met his burden of

proof on the “aggravated felony” issue.

AR 240.

4

The BIA explained that methamphetamine is a controlled substance

under 21 U.S.C. § 812(c), sch. III(a)(3), and that transportation of a con-

trolled substance violates 21 U.S.C. § 841(a)(1) (“[I]t shall be unlawful for

any person knowingly or intentionally (1) to manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or dispense, a

controlled substance . . . .”). Further, the offense constituted a felony under

federal law because the maximum term of imprisonment was greater than

one year. See 18 U.S.C. § 3559(a)(5).

SANDOVAL-LUA v. GONZALES 10653

Lua filed a Petition for Review in this court. On March 29,

2005, this court transferred the petition to a U.S. district court

with instructions to remand the case to the BIA because its

order of removal was inconsistent with Molina-Camacho v.

Ashcroft, 393 F.3d 937 (9th Cir. 2004), overruled by Lolong

v. Gonzales, 484 F.3d 1173, 1176-78 (9th Cir. 2007) (en

banc), in which this court held that the BIA lacked authority

to issue removal orders in the first instance. The BIA vacated

its prior decision ordering removal of Lua and remanded the

case to the IJ “for the entry of a new decision consistent with

Molina-Camacho and the prior decision of the Board.”

The IJ denied Lua’s application for cancellation of removal

and ordered Lua removed to Mexico in compliance with the

BIA’s instruction on remand. Lua appealed this order to the

BIA, asserting his eligibility for cancellation of removal on

the basis that his conviction of the offense of “transportation

of a controlled substance” under California Health & Safety

Code § 11379(a) is not a conviction of an aggravated felony.

On November 17, 2005, the BIA dismissed Lua’s appeal,

holding that Lua failed to demonstrate he had not been con-

victed of an aggravated felony. The BIA stated:

The respondent, however, has not offered conviction

record evidence to establish that the offense for

which he was convicted is not an aggravated felony.

In addition, his own description of the crime would

not suggest that he was simply convicted for solicita-

tion of a crime. Therefore, inasmuch as the respon-

dent has not met his burden of proving that he was

not convicted of an aggravated felony, he has not

established that he is eligible for cancellation of

removal.

On December 14, 2005, Lua timely filed a petition for review

in this court.

10654 SANDOVAL-LUA v. GONZALES

II.

We review de novo questions concerning our jurisdiction.

See Andersen v. United States, 298 F.3d 804, 807 n.2 (9th Cir.

2002). “Legal determinations regarding an alien’s eligibility

for cancellation of removal are reviewed de novo.” Sinotes-

Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006). Our

review is limited to the BIA’s decision. See id. (“When the

BIA conducts an independent review of the IJ’s findings we

review the BIA’s decision and not that of the IJ.”).

III.

Before considering the merits of this case, we must deter-

mine whether we have jurisdiction over Lua’s petition. The

government contends that Lua’s appeal must be dismissed for

lack of jurisdiction because the only issue is evidentiary,

namely whether Lua proffered sufficient evidence to demon-

strate by a preponderance of the evidence that he was not con-

victed of an aggravated felony.

The INA circumscribes our jurisdiction to review removal

orders in 8 U.S.C. § 1252(a)(2)(C): “no court shall have juris-

diction to review any final order of removal against an alien

who is removable by reason of having committed a criminal

offense covered in . . . section 1227(a)(2)(A)(iii), (B), (C), or

(D) of this title . . . .” Lua was found removable based on his

controlled substance offense conviction pursuant to

§ 1227(a)(2)(B)(i); therefore, his petition to this court impli-

cates the jurisdictional limitation of § 1252(a)(2)(C). Further,

8 U.S.C. § 1252(a)(2)(B)(i) limits this court’s jurisdiction

over discretionary decisions of the BIA, including cancella-

tion of removal: “[N]o court shall have jurisdiction to review

(i) any judgment regarding the granting of relief under . . .

section 1229b [cancellation of removal] . . . .”

However, the REAL ID Act expanded the scope of this

court’s review under § 1252 by adding a new provision,

§ 1252(a)(2)(D), which states:

SANDOVAL-LUA v. GONZALES 10655

Nothing in . . . this chapter which limits or elimi-

nates judicial review, shall be construed as preclud-

ing review of constitutional claims or questions of

law raised upon a petition for review filed with an

appropriate court of appeals.

(emphasis added). This court has interpreted this new provi-

sion as repealing “all jurisdictional bars to our direct review

of final removal orders other than those remaining in 8 U.S.C.

§ 1252 (in provisions other than (a)(2)(B) or (C)).”

Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.

2005), as adopted by Fernandez-Ruiz v. Gonzales, 466 F.3d

1121, 1124 (9th Cir. 2006) (en banc). Therefore, to the extent

Lua raises a constitutional claim or a question of law, this

court has jurisdiction to review his final order of removal.

Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1065 (9th

Cir. 2006) (explaining that under § 1252(a)(2)(D), “we are not

barred from hearing the constitutional claims or questions of

law raised in [an alien’s] petition”).

[1] Contrary to the government’s contentions, we have

jurisdiction to review Lua’s claims. Whether the judicially

noticeable documents in the administrative record establish

that Lua’s controlled substance offense is not an aggravated

felony under 8 U.S.C. § 1101(a)(43)(B) is a question of law.

We thus review the BIA’s decision de novo, rather than for

substantial evidence. Sinotes-Cruz, 468 F.3d at 1194. Because

this is a question of law, we have jurisdiction to review Lua’s

petition under 8 U.S.C. § 1252(a)(2)(D). Morales v. Gonzales,

478 F.3d 972, 979-80 (9th Cir. 2007).

IV.

A.

Lua has conceded that his conviction under California

Health and Safety Code § 11379(a) renders him removable

pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted

10656 SANDOVAL-LUA v. GONZALES

of a controlled substance offense. Having so conceded, Lua

bore the burden of proof before the BIA to establish his eligi-

bility for cancellation of removal. 8 C.F.R. § 1240.8(d). An

alien must meet three requirements to be eligible for cancella-

tion of removal:

The Attorney General may cancel removal in the

case of an alien who is inadmissible or deportable

from the United States if the alien (1) has been an

alien lawfully admitted for permanent resident for

not less than five years, (2) has resided in the United

States continuously for seven years after having been

admitted in any status, and (3) has not been con-

victed of any aggravated felony.5

8 U.S.C. § 1229b(a). An alien who applies for cancellation of

removal bears the “burden of establishing that he or she is eli-

gible for any requested benefit or privilege and that it should

be granted in the exercise of discretion.” 8 C.F.R.

§ 1240.8(d); see also Salviejo-Fernandez, 455 F.3d at 1066

(“[A]n alien who applies for cancellation of removal bears the

burden of demonstrating that he is eligible for such relief.”).

Furthermore, “[i]f the evidence indicates one or more of the

grounds for mandatory denial of the application for relief may

apply, the alien shall have the burden of proving by a prepon-

derance of the evidence that such grounds do not apply.” 8

C.F.R. § 1240.8(d) (emphasis added). Because Lua’s Califor-

nia Health & Safety Code § 11379(a) conviction indicates one

ground “for mandatory denial of the application for relief”—

in that the conviction may constitute an aggravated felony

under the INA—Lua’s particular burden was to demonstrate

by a preponderance of the evidence that his § 11379(a) con-

viction did not also qualify as an aggravated felony under 8

U.S.C. § 1101(a)(43)(B). 8 C.F.R. § 1240.8(d).

5

We note that neither the first nor second factor is at issue in this appeal.

Lua became a lawful permanent resident in 1992 and has since resided

continuously in the United States.

SANDOVAL-LUA v. GONZALES 10657

B.

1.

[2] Whether Lua’s § 11379(a) conviction constitutes an

aggravated felony under 8 U.S.C. § 1101(a)(43)(B) is ana-

lyzed under the familiar framework of Taylor v. United

States, 495 U.S. 575 (1990). See Salviejo-Fernandez, 455

F.3d at 1067 (“We use the two-step test set forth in [Taylor]

to determine whether a conviction is an ‘aggravated felony’

under the INA.”); Parilla v. Gonzalez, 414 F.3d 1038, 1041-

44 (9th Cir. 2005) (applying Taylor in determining whether an

alien’s state law conviction for child molestation constituted

an aggravated felony under the INA such that the alien was

ineligible for cancellation of removal). We begin by examin-

ing whether a conviction under California Health & Safety

Code § 11379(a) categorically qualifies as an aggravated fel-

ony under 8 U.S.C. § 1101(a)(43)(B). If so, Lua’s controlled

substance conviction under § 11379(a) would automatically

render him ineligible for cancellation of removal.

The INA defines an “aggravated felony” by reference to a

list of criminal offenses, one of which is “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).” 8 U.S.C. § 1101(a)(43)(B). A “drug traf-

ficking crime” is defined under 18 U.S.C. § 924(c)(2) to

include “any felony punishable under the Controlled Sub-

stances Act, or the Controlled Substances Import and Export

Act.” The Controlled Substances Act describes the “distribu-

tion” of controlled substances in both interstate and intrastate

commerce as being a part of trafficking in controlled sub-

stances. See 21 U.S.C. § 801(3)(A)-(C), (4)-(7). Under the

Controlled Substances Act, “distribute” means “to deliver

(other than by administering or dispensing) a controlled sub-

stance or a listed chemical.” 21 U.S.C. § 802(11).

10658 SANDOVAL-LUA v. GONZALES

[3] Although we have not previously directly held that Cal-

ifornia Health & Safety Code § 11379(a) is not categorically

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

cases control our conclusion here that § 11379(a) is categori-

cally overbroad. First, in United States v. Rivera-Sanchez, 247

F.3d 905, 909 (9th Cir. 2001) (en banc), we held that Califor-

nia Health & Safety Code § 11360(a)6 is not categorically an

aggravated felony under 8 U.S.C. § 1101(a)(43)(B) because

“the Controlled Substances Act neither mentions solicitation

nor contains any broad catch-all provision that could even

arguably be read to cover solicitation.” See also Leyva-Licea

v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999) (holding that

solicitation offenses are not covered in the Controlled Sub-

stances Act and are therefore not aggravated felonies under 8

U.S.C. § 1101(a)(43)(B)). Because § 11360(a), like

§ 11379(a), “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).” Rivera-Sanchez,

247 F.3d at 909.

Second, in United States v. Navidad-Marcos, 367 F.3d 903,

907-08 (9th Cir. 2004), we held that § 11379(a) punishes

“more than the ‘manufacture, import, export, distribution, or

dispensing of a controlled substance,’ or possession with

intent to do the same, as required by a ‘drug trafficking’

offense under [Sentencing Guidelines] § 2L1.2(b)(1)(A).”

(quoting § 2L1.2(b)(1)(A)). The significance of this holding

for present purposes is twofold: first, we recognized that

Ҥ 11379(a) criminalizes a variety of conduct, some of which

would not constitute an aggravated felony under the defini-

tions provided by the Sentencing Guidelines”; and second, we

6

California Health & Safety Code § 11360(a) states in relevant part:

“[E]very person who transports, imports into this state, sells, furnishes,

administers, or gives away, or offers to transport, import into this state,

sell, furnish, administer, or give away, or attempts to import into this state

or transport any marijuana shall be punished by imprisonment in the state

prison . . . .”

SANDOVAL-LUA v. GONZALES 10659

acknowledged that Rivera-Sanchez was controlling in deter-

mining the breadth of § 11379(a) because § 11360(a) “mirrors

11379(a) except for substituting ‘marijuana’ for ‘controlled

substance.’ ” Id. at 908. Indeed, other than this substitution,

the statutes are identical. Compare Cal. Health & Safety Code

§ 11379(a) with id. § 11360(a); see also United States v.

Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir. 2007) (“We

have previously held that sections 11360(a) and 11379(a) of

the California Health & Safety Code are overbroad and do not

categorically qualify for drug trafficking enhancements.”).

[4] Accordingly, we have little difficulty concluding that

the conduct made criminal in § 11379(a) includes conduct not

made criminal as aggravated felonies by 8 U.S.C. § 1101(a)

(43)(B).

2.

[5] Because a conviction under § 11379(a) is not categori-

cally an “aggravated felony” under 8 U.S.C. § 1101(a)

(43)(B), Lua’s controlled substance conviction does not fore-

close cancellation of removal under 8 U.S.C. § 1229b(a). Lua,

however, bears the burden to establish his eligibility thereun-

der. 8 C.F.R. § 1240.8(d) (“The respondent shall have the bur-

den of establishing that he or she is eligible for any requested

benefit or privilege and that it should be granted in the exer-

cise of discretion.”).

We turn now to the modified categorical approach to deter-

mine whether the record contains judicially noticeable docu-

ments which satisfy Lua’s burden of establishing by a

preponderance of the evidence that his controlled substance

conviction under § 11379(a) does not constitute a conviction

of an aggravated felony. 8 C.F.R. § 1240.8(d) (“If the evi-

dence indicates that one or more of the grounds for mandatory

denial of the application for relief may apply, the alien shall

have the burden of proving by a preponderance of the evi-

dence that such grounds do not apply.”). As we explained in

10660 SANDOVAL-LUA v. GONZALES

Parrilla v. Gonzales, “[u]nder the modified categorical

approach, we may consider a limited number of judicially

noticeable documents to determine whether, although the stat-

ute of conviction is overinclusive, the defendant was in fact

convicted of a crime that met the definition of” aggravated

felony set forth in 8 U.S.C. § 1101(a)(43)(B). 414 F.3d 1038,

1042 (9th Cir. 2005). Judicially noticeable documents under

the modified categorical approach include the “charging doc-

ument, written plea agreement, transcript of plea colloquy,

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

defendant assented.” Shepard v. United States, 544 U.S. 13,

16 (2005); see also Almazan-Becerra, 482 F.3d at 1088.7 The

record before us contains two such documents, which Lua

contends sufficiently prove he was not convicted of an aggra-

vated felony as that term is defined in 8 U.S.C.

§ 1101(a)(43)(B): the Criminal Complaint and the Abstract of

Judgment.

[6] The difficulty in this case arises because these docu-

ments are inconclusive as to the exact nature of Lua’s convic-

tion. Count 1 of the Criminal Complaint, for which Lua was

convicted, for example, merely recites the statutory language

of § 11379(a), which is written in the disjunctive and contains

7

The BIA improperly considered Lua’s testimony before the IJ in con-

cluding that Lua had not demonstrated his eligibility for cancellation of

removal. The certified administrative record contains Lua’s admission

before the IJ that his § 11379(a) conviction was for delivering eight

ounces of methamphetamine from a friend to another person in exchange

for $450. This conduct falls within 8 U.S.C. § 1101(a)(43)(B)’s definition

of aggravated felony, as it is not solicitation or possession for personal

use. However, under the modified categorical approach we may not con-

sider this testimony. Pursuant to Shepard, our inquiry is limited to the

judicially noticeable documents listed above. See Cisneros-Perez v. Gon-

zales, 465 F.3d 386, 393 (9th Cir. 2006) (explaining that in applying the

modified categorical analysis, the IJ may not look to the administrative

record because “[t]he IJ was not entitled to go beyond the conviction

record for purposes of ascertaining the crime of which [the petitioner] was

convicted”).

SANDOVAL-LUA v. GONZALES 10661

conduct that both does and does not constitute an aggravated

felony under 8 U.S.C. § 1101(a)(43)(B):

Victor Manuel Sandoval, did . . . commit the crime

of TRANSPORTATION OF A CONTROLLED

SUBSTANCE, a FELONY violation of Section

11379(a) of the California Health and Safety Code,

in that said defendant did then and there transport,

sell, furnish, administer, or give away, or offer to

transport, sell, furnish, administer, or give away or

attempt to transport a narcotic controlled substance,

to wit, Methamphetamine.

(emphasis in original). The Complaint’s inclusion of “or offer

to transport, sell, furnish, administer, or give away” means

that Lua could have been pleading to solicitation, which as we

have explained is not an aggravated felony under the INA.

See Leyva-Licea, 187 F.3d at 1150. Under Almazan-Becerra,

a “disjunctive guilty plea does not unequivocally establish

that [Lua] committed a drug-trafficking crime.” 482 F.3d at

1090 (internal quotation marks omitted).

The Abstract of Judgment likewise does not describe the

facts of Lua’s conviction. It merely lists the convicting statute

as § 11379(a) and describes the crime as “TRANSPORTA-

TION OF METH.” These documents plainly do not show that

Lua’s § 11379(a) conviction necessarily contained all the ele-

ments that constitute an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B).8

8

Even if the words “TRANSPORTATION OF METH.” in the Abstract

of Judgment were to be divorced from the statutory language which estab-

lishes solicitation as a violation of § 11379(a), the Abstract of Judgment

would not suffice to establish Lua’s conviction was for aggravated felony

elements. We have previously held that an abstract of judgment is not suf-

ficient to establish unequivocally that the defendant was convicted of

aggravated felony elements:

An abstract of judgment is not the judgment of conviction; it does

not control if different from the trial court’s oral judgment and

10662 SANDOVAL-LUA v. GONZALES

[7] We are thus left to consider this question: Does an alien

seeking to prove his eligibility for cancellation of removal

under 8 U.S.C. § 1229b(a) carry his burden of establishing by

a preponderance of the evidence that he has not been con-

victed of an aggravated felony when the alien produces an

inconclusive record of conviction? We conclude that he does.

By submitting an inconclusive record of conviction, Lua has

affirmatively proven under the modified categorical analysis

that he was not necessarily “convicted of any aggravated felo-

ny.” 8 U.S.C. § 1229b(a)(3).

[8] Under the modified categorical analysis, our concern is

with the nature of Lua’s § 11379(a) conviction, not with the

conduct underlying the conviction;9 consequently, we must

may not add to or modify the judgment it purports to digest or

summarize. Preparation of the abstract of criminal judgment . . .

is a clerical, not a judicial function. . . . The form simply calls for

the identification of the statute of conviction and the crime, and

provides a very small space in which to type the description. It

does not contain information as to the criminal acts to which the

defendant unequivocally admitted in a plea colloquy before the

court.

Navidad-Marcos, 367 F.3d at 908-09.

9

That we are to focus on the conviction rather than the conduct was

made clear in Taylor v. United States, 495 U.S. 575 (1990). There, the

Supreme Court explained:

Congress intended the sentencing court to look only to the fact

that the defendant had been convicted of crimes falling within

certain categories, and not to the facts underlying the prior con-

victions. Section 924(e)(1) [of Title 18 of the United States Code]

refers to “a person who . . . has three previous convictions” for—

not a person who has committed—three previous violent felonies

or drug offenses.

495 U.S. at 600 (emphases added). Under that analysis, the only facts that

matter are the facts of conviction, not the facts of the conduct. See Chang

v. I.N.S., 307 F.3d 1185, 1189-92 (9th Cir. 2002). Of course, that analysis

clearly rests in the text of the relevant statute, which in Taylor was the

Armed Career Criminals Act (ACCA). But the same analysis applies in

SANDOVAL-LUA v. GONZALES 10663

determine whether the judicially noticeable documents estab-

lish that Lua’s conviction necessarily was for all of the ele-

ments constituting an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B). If the record of conviction does not so

establish, Lua’s § 11379(a) conviction cannot amount to the

generic offense, and Lua has carried his burden. This conclu-

sion results from the Supreme Court’s holdings in Taylor, 495

U.S. 599-602, and Shepard, 544 U.S. at 19-21, which both

stress that a predicate conviction qualifies as a generic crime

under the modified categorical approach only if the record of

conviction shows the jury “necessarily” found all of the

generic elements, or the defendant “necessarily” admitted all

of the generic elements in a plea.

Under the modified categorical analysis introduced in Tay-

lor and reaffirmed in Shepard, either the record of conviction

shows that the predicate conviction was for the generic crime

or it fails to show the conviction was for the generic crime.

In Taylor, the Court addressed state burglary statutes that

were broader than the generic burglary definition it had

adopted, which did not include entry into automobiles. The

Court explained when the government could nonetheless use

a conviction under the overbroad statute to enhance a sen-

tence:

This categorical approach, however, may permit the

sentencing court to go beyond the mere fact of con-

the immigration context since the INA uses similar language. The cancel-

lation of removal provision refers to an alien who has “been convicted of”

—not an alien who has committed—“any aggravated felony.” 8 U.S.C.

§ 1229b(a)(3). That provision, like the ACCA provision, makes it clear

that “Congress intended the [immigration] courts to look only to the fact

that the [alien] had been convicted of crimes falling within certain catego-

ries, and not to the facts underlying the prior convictions.” Taylor, 495

U.S. at 600. In any case in which aggravated felony convictions are at

issue, the relevant question is whether the alien was convicted of, not

whether the alien committed, an aggravated felony. See Tokatly v. Ash-

croft, 371 F.3d 613, 622 (9th Cir. 2004).

10664 SANDOVAL-LUA v. GONZALES

viction in a narrow range of cases where a jury was

actually required to find all the elements of generic

burglary. For example, in a State whose burglary

statutes include entry of an automobile as well as a

building, if the indictment or information and jury

instructions show that the defendant was charged

only with a burglary of a building, and that the jury

necessarily had to find an entry of a building to con-

vict, then the Government should be allowed to use

the conviction for enhancement.

495 U.S. at 602 (emphases added). Using the Court’s exam-

ple, it follows logically that if the defendant had been charged

with the statutory elements of the overbroad statute, which

included both entry of an automobile and entry of a building,

and nothing else demonstrated conclusively that the jury had

to find entry of the building to convict, the conviction could

not be used for the enhancement. The reason? It could not be

said as a matter of law that the conviction was necessarily for

generic burglary.

Shepard reemphasized this aspect of Taylor. While discuss-

ing which documents qualified under the modified categorical

approach, the Court explained the document allowed “a later

court . . . generally [to] tell whether the plea had ‘necessarily’

rested on the fact identifying the burglary as generic.” 544

U.S. at 21 (emphasis added). The Court stated that a prior

conviction qualifies as the generic crime only “on a showing

that a prior conviction ‘necessarily’ involved (and a prior plea

necessarily admitted) facts equating to generic burglary.” Id.

at 24.

[9] Under Taylor and Shepard, the record of conviction is

not a proxy for determining whether the alien committed rele-

vant conduct. It is instead a self-sufficient body of the only

evidence that can be considered on the issue. In other words,

the documents to which we are limited under Shepard are not

a purely practical limit; they are also a legal limit, intended to

SANDOVAL-LUA v. GONZALES 10665

hold our inquiry to the legal conviction rather than the factual

conduct. Hence, the record must be enough to prove that an

alien either was or was not convicted of conduct which consti-

tuted an aggravated felony for purposes of the modified cate-

gorical analysis. When the record of conviction contains a

charging document that lists conduct that does constitute an

aggravated felony and conduct that does not constitute an

aggravated felony, the conclusion is that the jury was not nec-

essarily required to find the elements of the generic aggra-

vated felony in order to convict on that document. Without

more, it cannot be said as a matter of law that such conviction

was for the generic crime. See generally Almazan-Becerra,

482 F.3d at 1089-90; Cisneros-Perez v. Gonzales, 465 F.3d

386, 391-94 (9th Cir. 2006); Jeune v. Atty. Gen. of the U.S.,

476 F.3d 199, 202-04 (3d Cir. 2007). Hence the conclusion

that an inconclusive record of conviction is sufficient to dem-

onstrate an alien petitioner was not “necessarily” convicted of

the generic crime.

[10] Applying these principles to the precise issue before

us, we hold that the inconclusive record of conviction in this

case is sufficient to show that Lua was not convicted of “any

aggravated felony.” 8 U.S.C. § 1229b(a)(3). Thus, Lua carries

his burden to show by a preponderance of the evidence that

his § 11379(a) conviction was not “necessarily” an aggravated

felony under 8 U.S.C. § 1101(a)(43)(B). 8 C.F.R. § 1240.8(d).

We have before us a record of conviction that is inconclusive.

On the basis of the documents in the record, we cannot say

that Lua’s § 11379(a) plea “necessarily admitted” the ele-

ments of the generic offense. It is just as possible, on the basis

of the record, that Lua pleaded to the nongeneric elements.

When confronted with such a record, pursuant to Taylor and

Shepard we must conclude as a matter of law that the convic-

tion was not for a generic offense for purposes of determining

whether Lua has committed an aggravated felony under the

10666 SANDOVAL-LUA v. GONZALES

INA.10 Thus, Lua has carried his burden to show that he has

not been convicted of an aggravated felony.11

[11] Accordingly, Lua is eligible for cancellation of

removal under 8 U.S.C. § 1229b(a).12 We therefore GRANT

10

We note that the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231,

304 (codified at 8 U.S.C. § 1229a(c)(4)(B)), explains that in sustaining his

burden to establish eligibility for cancellation of removal, “[t]he applicant

must comply with the applicable requirements to submit information or

documentation in support of the applicant’s application for relief or pro-

tection as provided by law or by regulation or in the instructions for the

application form.” We need not address whether this provision expands

the available documents an alien may put forth in sustaining his burden of

proof of eligibility beyond the judicially noticeable documents of Shep-

hard under the modified categorical approach. This provision of the

REAL ID Act is not applicable to Lua’s application for cancellation of

removal because Lua’s petition was originally filed in 2004, before the

effective date of the REAL ID Act, May 11, 2005. Pub. L. No. 109-13 div.

B § 101(h)(2), 119 Stat. 231, 305 (stating that this provision of the Act

“shall take effect on the date of the enactment of this division and shall

apply to applications for asylum, withholding, or other relief from removal

made on or after such date.” (emphasis added)). See Yan v. Gonzales, 438

F.3d 1249, 1251 n.3 (10th Cir. 2006).

11

We recognize the BIA has come to a different conclusion in cases pre-

senting a similar question to the one we here confront. See, e.g., In re:

Garth Antony Miller, 2006 WL 3922268 (BIA Dec. 22, 2006) (holding

alien respondent did not carry burden of establishing eligibility for cancel-

lation of removal where the alien had not “offered any judicially notice-

able documents to support his claim that his conviction in violation of

[California Health & Safety Code] § 11360(a) . . . is not an aggravated fel-

ony as defined under [8 U.S.C.] § [1]101(a)(43)(B)”); In re: David Anto-

nio Wilson-Balderramos, 2006 WL 3088829 (BIA Sept. 11, 2006)

(holding alien respondent did not carry burden of establishing eligibility

for cancellation of removal where a prior conviction for a theft offense

under California Penal Code § 496(a) “could constitute an aggravated fel-

ony,” but it was “unclear from the instant record that it is, in fact, an

aggravated felony). We are nonetheless confident that ours is the correct

application of the principles of Taylor and Shepard.

12

Of course, the Attorney General, in his discretion, may refuse to grant

Lua cancellation of removal. Lua has demonstrated only that he is eligible

for such relief, not that he is entitled to the relief. See 8 U.S.C. § 1229b(a)

(“The Attorney General may cancel removal of an alien who is inadmissi-

ble or deportable from the United States . . . .” (emphasis added)).

SANDOVAL-LUA v. GONZALES 10667

Lua’s petition from the BIA’s order denying him cancellation

of removal and remand to the BIA for further proceedings not

inconsistent with this opinion.13

PETITION GRANTED.

THOMAS, Circuit Judge, concurring:

Rather than holding that Sandoval-Lua has sufficiently

borne his burden of proof in this case, I would join the First

Circuit in holding that the government bears the burden of

proving the existence and nature of prior convictions, even

when those prior convictions are at issue only as they relate

to an alien’s application for discretionary relief. See Berhe v.

Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006). There is, how-

ever, no practical difference between that holding and the one

we issue today since either legal standard allows an alien to

establish eligibility when his record of conviction is inconclu-

sive. I therefore concur in the majority’s opinion.

13

Because we grant Lua’s petition for the reasons explained above, we

do not consider his claim that the BIA should be bound by its first decision

according to the “law of the case” doctrine.