Rendon v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENEDICTO RENDON, 

Petitioner,

No. 05-77064

v.

 Agency No.

MICHAEL B. MUKASEY, Attorney A90-111-293

General,

Respondent.



BENEDICTO RENDON,  No. 05-77150

Petitioner, Agency No.

v. A90-111-293

MICHAEL B. MUKASEY, Attorney ORDER

General, AMENDING

Respondent. OPINION AND

 GRANTING THE

MOTION BY

PETITIONER FOR

CLARIFICATION

OR CORRECTION

OF DECISION

AND AMENDED

 OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 7, 2007—San Francisco, California

Filed February 15, 2008

Amended March 19, 2008

2593

2594 RENDON v. MUKASEY

Before: Mary M. Schroeder, Cynthia Holcomb Hall, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

2596 RENDON v. MUKASEY

COUNSEL

Eileen R. Ridley, Michael A. Naranjo, Patrick T. Wong,

Foley & Lardner LLP, San Francisco, California, for the peti-

tioner.

Stephen J. Flynn, Melissa Neiman-Kelting, Office of Immi-

gration Litigation, Civil Division, Department of Justice,

Washington, DC, for the respondent.

RENDON v. MUKASEY 2597

ORDER

The opinion, filed on February 15, 2008, slip opinion 1417,

is amended as follows:

At slip opinion 1422, first full paragraph, last sentence,

replace “Rendon then timely appealed.”, with “Rendon then

timely appealed to this court, and was appointed pro bono

counsel for the appeal.”

At slip opinion 1424, footnote 2, last sentence, replace “Re-

ndon’s counsel could have challenged the IJ’s decision on this

issue, but simply did not do so.”, with “Rendon’s previous

attorney could have challenged the IJ’s decision on this issue,

but simply did not do so.”

The Motion by Petitioner for Clarification or Correction of

Decision is GRANTED to the extent of these amendments.

OPINION

BYBEE, Circuit Judge:

In this case, we consider whether a state felony conviction

for possession with intent to sell a controlled substance con-

tains a trafficking element. We conclude that it does and

therefore it qualifies as an aggravated felony under the immi-

gration laws.

I. FACTS AND PROCEDURAL HISTORY

Benedicto Rendon is a native and citizen of Mexico who

has been a lawful permanent resident of the United States

since 1995. In April 1997, he was convicted of possession

with the intent to sell marijuana under Kansas law (the “Kan-

sas conviction”). See KAN. STAT. ANN. § 65-4163(a). Six years

2598 RENDON v. MUKASEY

later, in May 2003, Rendon was convicted in Utah for

attempting to possess cocaine in violation of UTAH CODE ANN.

§ 58-37-8(2)(a)(i) (the “Utah conviction”). The Department of

Homeland Security (“Department”) issued to Rendon a

Notice to Appear on April 8, 2005, which charged him with

removability under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien

who, after admission to the United States, has been convicted

of a controlled substance violation. The Notice to Appear

listed the Utah conviction as the basis for removal.

Rendon appeared pro se at his removal hearing before the

Immigration Judge (“IJ”). He conceded his removability but

applied for cancellation of removal, asylum, withholding of

removal, and protection under the Convention Against Tor-

ture (“CAT”).1 The IJ found Rendon to be removable under

§ 1227(a)(2)(B)(i) on the basis of the Utah conviction. The IJ

also found Rendon to be ineligible for any of the relief he

requested because his Kansas conviction was an aggravated

felony, see 8 U.S.C. § 1229b(a)(3), and as such was also a

“particularly serious crime,” see id. §§ 1158(b)(2)(A)(ii);

1158(b)(2)(B)(i); 1231(b)(3)(B)(ii).

Counsel represented Rendon during his appeal to the Board

of Immigration Appeals (“BIA”), where he argued that the IJ

erred in finding that the Kansas conviction was an aggravated

felony. He also argued, inexplicably, that the IJ had erred in

finding him removable on the basis of the Kansas conviction,

even though the government never relied on the Kansas con-

viction as a basis of removal. Rendon did not mention the

Utah conviction to the BIA or challenge that it was an appro-

priate basis for removal.

The BIA dismissed the appeal on December 6, 2005, con-

cluding that Rendon had failed to challenge the finding of

removability based on the Utah conviction, that Rendon had

conceded his removability, and that the Department had sub-

1

On appeal, Rendon does not pursue his CAT claim.

RENDON v. MUKASEY 2599

mitted the conviction records to establish his removability.

Although the BIA acknowledged that KAN. STAT. ANN. § 65-

4163(a) criminalized conduct that is not an aggravated felony

as well as conduct that is an aggravated felony, it found that

it could determine from the records of the Kansas conviction

that Rendon had been convicted of possession with intent to

sell a controlled substance. The BIA agreed with the IJ that

such a conviction contained a trafficking element, which

made it an aggravated felony. Accordingly, the BIA sustained

the IJ’s finding that Rendon was ineligible for the relief he

requested. Rendon then timely appealed to this court, and was

appointed pro bono counsel for the appeal.

II. STANDARD OF REVIEW

We review the BIA’s determination of purely legal ques-

tions, such as whether a conviction is a controlled substance

offense that makes an alien removable under § 1227 and

whether a conviction is an aggravated felony, de novo. See

Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.

2004).

III. DISCUSSION

A. Jurisdiction to Consider Removability Under § 1227

Rendon first argues that the BIA erred in affirming the IJ’s

finding that he was removable under 8 U.S.C. § 1227(a)(2)

(B)(i) for his Utah conviction of attempted possession of

cocaine. The government counters that Rendon did not raise

this argument before the BIA and we therefore are without

jurisdiction to hear this portion of his appeal. We agree with

the government.

[1] A court can only review a final order of removal if “the

alien has exhausted all administrative remedies available to

the alien as of right.” 8 U.S.C. § 1252(d)(1). An alien’s failure

to exhaust his administrative remedies deprives this court of

2600 RENDON v. MUKASEY

jurisdiction to hear the appeal. See Barron v. Ashcroft, 358

F.3d 674, 678 (9th Cir. 2004). Furthermore, “[a] petitioner

cannot satisfy the exhaustion requirement by making a gen-

eral challenge to the IJ’s decision, but, rather, must specify

which issues form the basis of the appeal.” Zara v. Ashcroft,

383 F.3d 927, 930 (9th Cir. 2004). Exhaustion of administra-

tive remedies at the BIA level is required to “prevent . . . ‘pre-

mature interference with the agency’s processes,’ ” and to

provide the BIA with notice of the issues that the petitioner

asserts were wrongly decided. Id. at 931 (quoting Liu v.

Waters, 55 F.3d 421, 424 (9th Cir. 1995)).

[2] In this case, the administrative record demonstrates that

Rendon did not “specify which issue[ ] form[s] the basis of

the appeal” and, at best, only made “a general challenge to the

IJ’s decision” concerning removability under § 1227. Id. at

930. The brief submitted to the BIA challenged only the find-

ing of removability on the ground that Rendon’s Kansas con-

viction was a controlled substance offense or an aggravated

felony—a ground for removal that the Department has never

put forward or relied upon. Indeed, Rendon’s brief to the BIA

never once mentioned the Utah conviction. The BIA is not

required to anticipate objections that Rendon utterly failed to

make, and we lack jurisdiction to address them here.

Rendon argues that he is permitted to make new arguments

on appeal in support of the claims that he made to the BIA,

citing to Lebron v. National Railroad Passenger Corp., 513

U.S. 374, 378-79 (1995). Because he argued to the BIA that

he was not removable under § 1227, he attempts to construe

his challenge to the Utah conviction as a new argument in

support of that same general claim. We find no support in

Lebron for this argument. The contention that the BIA erred

in finding him removable under the Utah conviction is most

appropriately categorized as a different claim, not a different

argument supporting the same claim. The Utah and Kansas

convictions are not related in any way and could each serve

RENDON v. MUKASEY 2601

as an independent basis for removability. The Lebron rule

does not save Rendon’s forfeited claim.

[3] We find unavailing Rendon’s argument that any “waiv-

er” of his right to challenge the finding of removability based

on the Utah conviction was not considered and intelligent and

he was therefore denied due process. The “considered and

intelligent” requirement for waiver applies to an explicit

waiver of the right to appeal. See United States v. Pallares-

Galan, 359 F.3d 1088, 1095-96 (9th Cir. 2004). Rendon did

not waive his right to bring an appeal. The IJ gave Rendon

detailed instructions on how to file the appeal, and Rendon

had ample opportunity to present his arguments concerning

the Utah conviction to the BIA but simply failed even to men-

tion them. Rendon forfeited his challenge to the Utah convic-

tion; he did not waive it.2 See, e.g., United States v. Jacobo

Castillo, 496 F.3d 947, 952 n.1 (9th Cir. 2007) (en banc)

(“Waiver is ‘the intentional relinquishment or abandonment

of a known right,’ whereas forfeiture is ‘the failure to make

the timely assertion of [that] right.’ ” (alteration in original)

(quoting United States v. Olano, 507 U.S. 725, 733 (1993))).

[4] Because Rendon failed to exhaust his administrative

remedies in connection with the finding of removability based

on the Utah conviction, we do not have jurisdiction over this

issue. We dismiss that portion of his petition.

2

Rendon’s related argument that the IJ did not permit him to develop his

testimony regarding the Utah conviction at a stage of the proceeding when

he was proceeding pro se misses the point. By the time he appeared before

the BIA, Rendon was represented by counsel. Furthermore, the IJ’s order

very clearly identifies the Utah conviction as the basis for removal. Ren-

don’s previous attorney could have challenged the IJ’s decision on this

issue, but simply did not do so.

2602 RENDON v. MUKASEY

B. Possession with the Intent to Sell Marijuana as an

Aggravated Felony

Rendon next argues that the BIA and the IJ incorrectly

found his Kansas conviction to be an aggravated felony for

purposes of cancellation of removal, asylum, and withholding

of removal.3 As an applicant for cancellation of removal and

asylum, Rendon bears the burden of proving that he is eligible

for the discretionary relief he is seeking. See 8 U.S.C.

§§ 1158(b)(1)(B)(i); 1229a(c)(4)(A); Salviejo-Fernandez v.

Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). When “the

evidence indicates that one or more of the grounds for manda-

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

shall have the burden of proving by a preponderance of the

evidence that such grounds do not apply.” 8 C.F.R.

§ 1240.8(d).

[5] An applicant for asylum or for cancellation of removal

is not eligible for these forms of relief if he has been con-

victed of an aggravated felony. See 8 U.S.C. §§ 1158(b)(2)

(A)(ii) (making individuals convicted of “a particularly seri-

ous crime [who] constitute[ ] a danger to the community of

the United States” ineligible for asylum); 1158(b)(2)(B)(i)

(classifying aggravated felonies as “particularly serious

crime[s]” for purposes of § 1158(b)(2)(A)(ii)); 1229b(a)(3)

(making aliens “convicted of any aggravated felony” ineligi-

ble for cancellation of removal). An applicant for withholding

of removal is ineligible for relief if he has been convicted of

3

Rendon only argued the aggravated felony issue before the BIA in con-

nection with cancellation of removal. Although he did not raise it in con-

nection with his asylum and withholding of removal claims, we may deem

it exhausted because the legal issue involved is identical for all three forms

of relief—if his Kansas conviction is an aggravated felony, he is not eligi-

ble for cancellation of removal, asylum, or withholding of removal—and

the BIA addressed the issue of whether the Kansas conviction is an aggra-

vated felony on the merits in its decision. See Sagermark v. INS, 767 F.2d

645, 648 (9th Cir. 1985) (finding a claim that the BIA addressed on the

merits to be exhausted for purposes of judicial review).

RENDON v. MUKASEY 2603

certain types of aggravated felonies. See 8 U.S.C.

§ 1231(b)(3)(B)(ii) (making aliens who have “been convicted

by a final judgment of a particularly serious crime” ineligible

for withholding of removal); id. § 1231(b)(3)(B) (defining

“particularly serious crime” for purposes of withholding of

removal to include aggravated felonies with prison terms of

more than five years and giving discretion to the Attorney

General to determine that aggravated felonies with shorter

prison terms are also particularly serious crimes); Miguel-

Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (“We

hold that the Attorney General’s construction of § 1231(b)

(3)(B) as providing him with discretion to create a strong pre-

sumption that drug trafficking offenses are particularly seri-

ous crimes is not impermissible. Under Chevron, we therefore

defer to that construction.”); In re Y.L., 23 I. & N. Dec. 270,

274 (B.I.A. 2002) (establishing the presumption that “aggra-

vated felonies involving unlawful trafficking in controlled

substances constitute ‘particularly serious crimes’ ” under

§ 1231(b)(3)(B)(ii)). The first step in determining Rendon’s

eligibility for relief, therefore, is to decide whether Rendon’s

Kansas conviction is an aggravated felony.

In determining whether a state drug crime fits the general

definition of an aggravated felony, “we first make a categori-

cal comparison of the elements of the statute of conviction to

the generic definition, and decide whether the conduct pro-

scribed by [the statute] is broader than, and so does not cate-

gorically fall within, this generic definition.” Huerta-Guevara

v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003); see Taylor v.

United States, 495 U.S. 575, 602 (1990).

[6] The statutory definition of “aggravated felony” includes

felonies involving “illicit trafficking in a controlled substance

. . . , including a drug trafficking crime (as defined in section

924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). This statutory

definition has given rise to two possible routes for a state drug

felony to qualify as an aggravated felony. See In re Davis, 20

I. & N. Dec. 536, 541-43 (B.I.A. 1992). First, under the

2604 RENDON v. MUKASEY

phrase “illicit trafficking in a controlled substance,” a state

drug crime is an aggravated felony “if it contains a trafficking

element.” Salviejo-Fernandez, 455 F.3d at 1066. Second,

under the phrase “including a drug trafficking crime (as

defined in section 924(c) of Title 18),” a state drug crime is

an aggravated felony if it would be punishable as a felony

under the federal drug laws.4 See Lopez v. Gonzales, 127

S. Ct. 625, 630 (2006) (“The [Immigration and Nationality

Act] makes [an alien] guilty of an aggravated felony if he has

been convicted of ‘illicit trafficking in a controlled substance

. . . including,’ but not limited to, ‘a drug trafficking crime (as

defined in section 924(c) of Title 18).’ ”); id. at 633 (“[A]

state offense constitutes a ‘felony punishable under the Con-

trolled Substances Act’ only if it proscribes conduct punish-

able as a felony under that federal law.”). Thus, our court has

recognized that a state drug crime is also an “aggravated felo-

ny” in immigration law “if it would be punishable as a felony

under federal drug laws.” Salviejo-Fernandez, 455 F.3d at

1066; see 8 U.S.C. § 1101(a)(43)(B).

[7] Rendon’s conviction under KAN. STAT. ANN. § 65-

4163(a) is categorically an aggravated felony only if the fact

of his conviction necessarily means that he was convicted of

a crime satisfying either prong of the statutory definition, or,

in other words, that § 65-4163(a) only criminalizes conduct

that satisfies the definition of an aggravated felony. Section

65-4163(a) provides that “it shall be unlawful for any person

to sell, offer for sale or have in such person’s possession with

the intent to sell, deliver or distribute; cultivate; prescribe;

administer; deliver; distribute; or dispense” a controlled sub-

stance, including marijuana. As the government concedes,

§ 65-4163(a) criminalizes a solicitation offense, which this

court has determined does not constitute an aggravated felony

for purposes of immigration law. See United States v. Rivera-

Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001). Conviction

4

This second approach is sometimes referred to as the “hypothetical fed-

eral felony” rule. See, e.g., Cazarez-Gutierrez, 382 F.3d at 916.

RENDON v. MUKASEY 2605

under § 65-4163(a) therefore does not necessarily mean that

Rendon committed an aggravated felony.

[8] When the statute of conviction does not categorically

qualify as an aggravated felony, we use the modified categori-

cal approach to decide whether the conduct for which the

alien was actually convicted qualifies as an aggravated felony.

See Huerta-Guevara, 321 F.3d at 887. When applying the

modified categorical approach to divisible statutes such as

§ 65-4163(a), we may consider “the state charging document,

a signed plea agreement, jury instructions, guilty pleas, tran-

scripts of a plea proceeding and the judgment” to determine

which portion of the divisible statute formed the basis of the

conviction. Hernandez-Martinez v. Ashcroft, 343 F.3d 1075,

1076 (9th Cir. 2003); see also 8 U.S.C. § 1229a(c)(3)(B).

[9] The administrative record in this case contains both the

state charging document and the judgment of the Kansas convic-

tion.5 The judgment lists the primary offense of conviction as

“POSSESSION OF MARIJUANA WITH INTENT TO

SELL.” The charging document alleges that Rendon “unlaw-

fully, intentionally, possess[ed] with intent to sell a controlled

substance, to-wit: marijuana.” These two documents clearly

indicate that Rendon was convicted of possession with intent

to sell a controlled substance, not one of the other possible

bases of conviction under the statute.6 The question thus

5

Rendon’s argument that these documents are unclear because they also

list a second count of conviction is without merit. The fact that Rendon

was also found guilty of violating a second Kansas statute in no way

diminishes the fact that he was also convicted of violating § 65-4163(a) or

that the documents clearly specify which portion of § 65-4163(a) he vio-

lated.

6

We reject as irrelevant Rendon’s argument that the IJ and BIA improp-

erly relied on his testimony to find that his Kansas conviction was an

aggravated felony, in violation of the rule in Tokatly v. Ashcroft, 371 F.3d

613 (9th Cir. 2004). In Tokatly, the immigration judge questioned a crime

victim about the facts of an alien’s burglary and attempted kidnapping

conviction to determine whether it was a crime of domestic violence. See

2606 RENDON v. MUKASEY

becomes whether conviction of possession of marijuana with

the intent to sell contains a trafficking element or would be

punishable as a felony under federal drug laws. See Salviejo-

Fernandez, 455 F.3d at 1066.

The statutes and case law provide little guidance on what

constitutes a “trafficking element.” An “aggravated felony” is

defined in part as “illicit trafficking in a controlled substance

. . . , including a drug trafficking crime.” 8 U.S.C.

§ 1101(a)(43)(B). However, the statute does not further define

“trafficking.” The Supreme Court has stated that “ordinarily

‘trafficking’ means some sort of commercial dealing.” Lopez

v. Gonzalez, 127 S. Ct. 625, 630 (2006). Our own court has

somewhat circuitously stated “that a drug offense with a traf-

ficking element is ‘illicit trafficking.’ ” Cazarez-Gutierrez,

382 F.3d at 910 n.5. The Third Circuit has provided a slightly

more concrete definition, stating that “[t]o contain a traffick-

ing element, a state felony must involve ‘the unlawful trading

or dealing of a controlled substance.’ ” Jeune v. Att’y Gen.,

476 F.3d 199, 202 (3d Cir. 2007) (quoting Gerbier v. Holmes,

280 F.3d 297, 305 (3d Cir. 2002)). The Sixth Circuit has fol-

lowed the same approach as the Third Circuit, but noted that

under the Third Circuit definition “[i]t is not clear whether

possession with intent to resell constitutes ‘unlawful trading

or dealing,’ and thus trafficking.” Garcia-Echaverria v.

United States, 376 F.3d 507, 513 (6th Cir. 2004) (quoting

Gerbier, 280 F.3d at 313).

[10] Nevertheless, we need not elaborate beyond the

Supreme Court’s statement in Lopez to determine that Ren-

don’s Kansas conviction contains a trafficking element. “Pos-

id. at 616. The Ninth Circuit held that the IJ erred by examining facts

behind the conviction. Id. at 623. Unlike the situation in Tokatly, in this

case the state charging document and the record of judgment, which the

IJ was permitted to consult under the modified categorical approach,

amply demonstrated which portion of the statute Rendon violated.

RENDON v. MUKASEY 2607

session of marijuana with intent to sell” necessarily means

that Rendon possessed the marijuana with the intent to engage

in “some sort of commercial dealing.” Lopez, 127 S. Ct. at

630. We therefore hold that possession of a controlled sub-

stance with the intent to sell contains a trafficking element

and is an aggravated felony.7

[11] Because the Kansas conviction is an aggravated fel-

ony, Rendon is ineligible for cancellation of removal. 8

U.S.C. § 1229b(a)(3). An aggravated felony is considered to

be a particularly serious crime that makes Rendon ineligible

for asylum as well. Id. §§ 1158(b)(2)(A)(ii); 1158(b)(2)(B)(i).

Finally, an aggravated felony containing a drug trafficking

element is presumed to be a particularly serious crime which

would make Rendon ineligible for withholding of removal.

He has not presented any evidence to overcome this presump-

tion. See 8 U.S.C. § 1231(b)(3)(B); 1231(b)(3)(B)(ii); Miguel-

Miguel, 500 F.3d at 949. We therefore deny his petition for

review of the BIA’s determination that his Kansas conviction

is an aggravated felony, which makes him ineligible for the

relief he requested.

The petition for review is DISMISSED in part and

DENIED in part.

7

Because we conclude that Rendon’s Kansas conviction contains a traf-

ficking element and is an aggravated felony on that basis, we need not

reach the question of whether it would have qualified as a felony under the

federal drug laws.