holding that California’s definition of “controlled substance” was broader than the federal definition because California “punishe[d] the possession of optical and geometrical isomers” of metham- phetamine while federal law “punishe[d] the possession of optical isomers alone”
How later courts described this case
- holding that California’s definition of “controlled substance” was broader than the federal definition because California “punishe[d] the possession of optical and geometrical isomers” of metham- phetamine while federal law “punishe[d] the possession of optical isomers alone”
- explaining that California state court documents such as abstracts of judgment and minute orders, which are statutorily authorized and contemporaneously prepared by a neutral officer of the court, are of “equal reliability” to the illustrative list of documents in Shepard
- holding that general challenge to sufficiency of evidence to support finding by IJ as to aggravated felony conviction was sufficient to meet exhaustion requirement, even though petitioner raised issue below in “slightly different manner”
- recognizing that this court had jurisdiction to consider a petition for review which argued that a prior conviction was not an aggravated felony, but rejecting petitioner’s argument
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUEN PIU KWONG, aka Phillip
Kwong,
No. 04-72167
Petitioner,
v. Agency No.
A42-024-428
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued February 15, 2008
Submitted October 20, 2011
San Francisco, California
Filed December 7, 2011
Before: William C. Canby, Jr., Carlos T. Bea* and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Canby
*Judge Carlos T. Bea was drawn to replace Judge Stephen G. Larson,
who resigned during the pendency of this appeal.
20779
KWONG v. HOLDER 20781
COUNSEL
Ilyce Shugall, Marc Van Der Hout, Van Der Hout, Brigagli-
ano & Nightingale, LLP, San Francisco, California, for the
petitioner.
Liza S. Murcia, U.S. Department of Justice, Office of Immi-
gration Litigation, Civil Division, Washington, DC, for the
respondent.
20782 KWONG v. HOLDER
OPINION
CANBY, Circuit Judge:
Petitioner Chen Piu Kwong, a lawful permanent resident of
the United States, was ordered removed on the ground that he
had been convicted of an aggravated felony. See 8 U.S.C.
§ 1227(a)(2)(A)(iii). He contends that the evidence was insuf-
ficient to establish that the crime of which he was convicted
was an aggravated felony. We conclude that Kwong’s convic-
tion of first-degree burglary was a conviction of an aggra-
vated felony, and was sufficiently established by the state
court’s abstract of judgment. We also reject Kwong’s claim
of ineffective assistance of counsel, and we accordingly deny
his petition for review.
I. Background
Kwong is a native and citizen of the People’s Republic of
China. He entered the United States as a lawful permanent
resident in 1990. In April 1997, Kwong pleaded guilty to a
violation of California Penal Code § 459, the California bur-
glary statute, and was sentenced to two years in prison. As a
consequence of his conviction, removal proceedings were ini-
tiated.
The evidence of Kwong’s conviction that was before the IJ
was a certified copy of the abstract of the judgment of the
state court.1 That abstract noted that Kwong had pleaded
1
The abstract of judgment was the evidence that the IJ relied upon at the
time of ruling that Kwong was removable. Months later, in applying for
withholding of removal, Kwong introduced a transcript of his plea hear-
ing, which the government urges us to take into account. Kwong contends
that such use of the transcript is prohibited by 8 C.F.R. § 1240.11(e),
which provides that an application for relief from removal “shall not be
held to constitute a concession of alienage or deportability.” We need not
address this issue because we rely solely on the abstract of judgment,
which was the only document explicitly relied upon by the IJ in finding
Kwong removable. The Board of Immigration Appeals affirmed the IJ’s
decision “for the reasons stated therein.”
KWONG v. HOLDER 20783
guilty to a violation of § 459 of the Penal Code and described
the crime as “Burglary — First Deg.” Section 460 of the Code
defines first-degree and second-degree burglary; first-degree
burglary is “burglary of an inhabited dwelling house, vessel
. . . which is inhabited and designed for habitation, floating
home . . . , or trailer coach . . . , or the inhabited portion of
any other building.” Cal. Penal Code § 460(a). The abstract of
judgment also indicated that Kwong had been sentenced to
two years of imprisonment.
The IJ held that Kwong’s conviction for first-degree bur-
glary qualified as an aggravated felony because it was a crime
of violence. See 8 U.S.C. § 1101(a)(43)(F). The IJ later
denied Kwong’s petition for withholding of removal. The
Board of Immigration Appeals (“BIA”) adopted and affirmed
the IJ’s rulings with regard to the order of removal and denial
of withholding. The BIA also denied Kwong’s motion to
remand on the ground of ineffective assistance of counsel.2
II. Aggravated Felony
The IJ and BIA found that Kwong is subject to a removal
order as an alien “convicted of an aggravated felony.” 8
U.S.C. § 1227(a)(2)(A)(iii). In 1996, the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) stripped
the federal courts of jurisdiction “to review any final order of
removal against an alien who is removable by reason of hav-
ing committed” an aggravated felony. 8 U.S.C.
§ 1252(a)(2)(C) (as amended). The REAL ID Act of 2005,
however, restored jurisdiction over all “constitutional claims
or questions of law raised upon a petition for review.” 8
2
We withdrew submission of Kwong’s petition for review pending the
outcome of United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008)
(en banc). We subsequently further delayed decision pending the outcome
of en banc proceedings in United States v. Aguila-Montes de Oca, 655
F.3d 915 (9th Cir. 2011) (en banc). We address both Snellenberger and
Aguila-Montes later in this opinion.
20784 KWONG v. HOLDER
U.S.C. § 1252(a)(2)(D) (as amended). “Whether an offense is
an aggravated felony for [removal] purposes is a question of
law.” Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th
Cir. 2006). Thus, we have jurisdiction to address that ques-
tion.
Where, as here, the BIA adopts and affirms the IJ’s order
pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA
1994), and expresses no disagreement with the IJ’s decision,
we review the IJ’s order as if it were the BIA’s. See Abebe v.
Gonzales, 432 F.3d 1037, 1040-41 (9th Cir. 2005) (en banc).
We review de novo the IJ’s and BIA’s conclusions on ques-
tions of law, including whether Kwong’s offense qualifies as
an “aggravated felony.” See Daas v. Holder, 620 F.3d 1050,
1053 n.2 (9th Cir. 2010).
A. Exhaustion
As a threshold matter, the government argues that Kwong
failed to exhaust his administrative remedies with respect to
two issues: (1) whether he was convicted of second-degree
rather than first-degree burglary, and (2) whether the IJ erred
in relying only on the abstract of judgment and the length of
his sentence to determine that Kwong had been convicted of
first-degree burglary. We conclude that Kwong exhausted
these issues before the IJ and the BIA.
“When the BIA has ignored a procedural defect and elected
to consider an issue on its substantive merits, we cannot then
decline to consider the issue based upon this procedural
defect.” Abebe, 432 F.3d at 1041. Thus, “[t]he BIA’s express
adoption of [an] IJ’s decision which explicitly discussed [a]
ground is ‘enough to convince us that the relevant policy con-
cerns underlying the exhaustion requirement . . . have been
satisfied.” Id. (quoting Sagermark v. INS, 767 F.2d 645, 648
(9th Cir. 1985)).
After initially admitting the factual allegations in the Notice
to Appear and not objecting to the introduction of the abstract
KWONG v. HOLDER 20785
of judgment into evidence, Kwong filed a motion to reopen
the pleadings and terminate the removal order, followed by a
renewed motion to the same effect. In these motions, Kwong
stated that his original concession of removability was based
on the fact that, “at that time,” his conviction was sufficient
to qualify as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G) . He sought to reopen because this court had
subsequently decided Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.
2000), which held that a conviction for vehicle burglary under
California Penal Code § 459 was not an “aggravated felony”
under INA Section 101(a)(43)(G). The IJ evidently inter-
preted Kwong’s motion as submitting, among other positions,
that Kwong had not been convicted of first-degree burglary.
The IJ addressed and decided that issue on the merits.
Because the BIA adopted the IJ’s reasoning and affirmed for
“for the reasons stated therein,” the IJ’s discussion of the
issue is sufficient, in and of itself, to overcome the exhaustion
challenge. See Abebe, 432 F.3d at 1041.
We also reject the government’s argument that Kwong
failed to challenge the IJ’s exclusive reliance on the abstract
of judgment. While Kwong is required to raise every issue in
the administrative proceedings, this court retains jurisdiction
where “the issue in question [has] been argued in a slightly
different manner [below].” Cruz-Navarro v. INS, 232 F.3d
1024, 1030 n.8 (9th Cir. 2000). That is the case here, for
Kwong generally challenged the sufficiency of the evidence
supporting the IJ’s finding as to the conviction.3
3
Moreover, in his brief to the BIA, Kwong argued that the abstract of
judgment (which had a notation of “Burglary — First Deg.”) cited only
California Penal Code § 459, and failed to show what kind of structure he
was convicted of burglarizing. This contention sufficiently raised the pos-
sibility that Kwong’s crime did not qualify as first-degree burglary, which
is limited to burglary of specified types of structures. See Cal. Penal Code
§ 460(a).
20786 KWONG v. HOLDER
B. First-Degree Burglary under California Penal Code
§ 459 as a Crime of Violence
[1] Under 8 U.S.C. § 1101(a)(43)(F), the term “aggravated
felony” includes “a crime of violence (as defined in section 16
of Title 18 . . .).” Section 16 of Title 18, in turn, provides in
its residual clause that “crime of violence” means:
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
The question for decision, then, is whether Kwong’s offense
“by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of [its commission].” 18 U.S.C. § 16(b).
[2] We answered that question in the affirmative some
time ago in United States v. Becker, 919 F.2d 568, 573 (9th
Cir. 1990), where we held that “first-degree burglary under
California law is a ‘crime of violence’ ” as defined by 18
U.S.C. § 16(b). See also United States v. Park, 649 F.3d 1175,
1178-79 (9th Cir. 2011). We pointed out in Becker that “[a]ny
time a burglar enters a dwelling with felonious or larcenous
intent there is a risk that in the course of committing the crime
he will encounter one of its lawful occupants, and use physi-
cal force against that occupant either to accomplish his illegal
purpose or to escape apprehension.” 919 F.2d at 571 (footnote
omitted).
In his briefing here, Kwong argues that, rather than Becker,
our subsequent en banc decision in United States v. Aguila-
Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), con-
trols and supports his argument that first-degree burglary
under California Penal Code § 459 does not qualify as a crime
of violence. He contends that the definition of first-degree
burglary in § 460 is broader than the generic definition of bur-
KWONG v. HOLDER 20787
glary, and cannot qualify as a crime of violence under either
a categorical or modified categorical approach in his case.
[3] These arguments are foreclosed, however, by our
recent decision in Lopez-Cardona v. Holder, 2011 WL
5607634 (9th Cir. Nov. 18, 2011). Lopez-Cardona flatly held
that, under Becker, first-degree burglary in violation of Cali-
fornia Penal Code § 459 was a crime of violence within the
meaning of 18 U.S.C. § 16(b). Id. at *1. It also held that
Aguila-Montes had no effect on that conclusion because
Aguila-Montes was based on a different definition of “crime
of violence”; Aguila-Montes held only that a conviction under
California Penal Code § 459 did not constitute a conviction
for generic burglary. Lopez-Cardona, 2011 WL 5607634 at
*3. Aquila-Montes accordingly did not contradict or affect
Becker’s holding that first-degree burglary under § 459 is a
crime of violence because it involves a substantial risk that
physical force may be used in the course of committing the
offense. Id. at *2-3.
[4] Kwong attempts to avoid the reach of Becker by con-
tending that post-Becker amendments to California Penal
Code § 460 had the effect of sweeping within the definition
of first-degree burglary some structures that are not inhabited,
so that unlawful entry into them would not involve a substan-
tial risk of the use of force. At the relevant time in Becker,
§ 460(a) provided:
[E]very burglary of an inhabited dwelling house or
trailer coach as defined by the Vehicle Code, or the
inhabited portion of any other building, is burglary
of the first degree.
This definition clearly required that each prohibited entry be
of an inhabited structure. At the time of Kwong’s conviction,
however, § 460(a) had been amended to state:
Every burglary of an inhabited dwelling house, ves-
sel, as defined in the Harbors and Navigation Code,
20788 KWONG v. HOLDER
which is inhabited and designated for habitation,
floating home, as defined in subdivision (d) of Sec-
tion 18075.55 of the Health and Safety Code, or
trailer coach, as defined by the Vehicle Code, or the
inhabited portion of any other building, is burglary
of the first degree.
Kwong contends that the intervening amendments, in adding
vessels and floating homes, modified the sentence structure so
that the word “inhabited” did not modify “floating home” and
no longer modified “trailer coach.” Although Kwong’s inter-
pretation of the amended statute is grammatically permissible,
the amended statute can also be read so that the word “inhab-
ited,” as it first appears, modifies not only “dwelling house”
but also “vessel,” “floating home” and (as in the prior version
of the statute) “trailer coach.” It is true that the latter reading
results in surplusage by twice describing “vessel” as inhab-
ited, but “[r]ules such as those directing courts to avoid inter-
preting legislative enactments as surplusage are mere guides
and will not be used to defeat legislative intent.” People v.
Cruz, 919 P.2d 731, 743 (Cal. 1996). It defies common sense
to conclude that the legislature, in specifying additional
inhabited structures to be included in § 460, intended to
remove one or more structures from the otherwise uniform
requirement of first-degree burglary that the structures must
be inhabited. The California Supreme Court does not under-
stand § 460 in its amended form to include any uninhabited
structures with its definition of first-degree burglary. See Peo-
ple v. Anderson, 211 P.3d 584, 589 (Cal. 2009) (“First degree
burglary is a greater substantive offense than second degree
burglary because it requires proof of all the elements of sec-
ond degree burglary and the additional element that the area
entered was used as a dwelling.”); cf. Cruz, 919 P.2d at 743
(stating that the intent of the legislature in expressly adding
vessels to § 460 was “to ensure that vessels would receive the
same protection as other habitations.”). We agree with that
understanding, and construe the amended § 460(a) to require
KWONG v. HOLDER 20789
unlawful entry of an inhabited structure to meet its definition
of first-degree burglary.
C. Sufficiency of Abstract of Judgment to Establish
Conviction for First-Degree Burglary
In United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir.
2004), we squarely held that a notation in an abstract of judg-
ment was insufficient by itself to establish what crime a
defendant was convicted of. Id. at 908-09; see also Sandoval-
Lua v. Gonzales, 499 F.3d 1121, 1130 n.8 (9th Cir. 2007).
The question arises, however, whether our subsequent en banc
decision in United States v. Snellenberger, 548 F.3d 699 (9th
Cir. 2008) (en banc), undermines Navidad-Marcos.4
In Snellenberger, the charging document to which the
defendant pleaded guilty contained two counts of burglary in
violation of California Penal Code § 459: count 1 charged
burglary of a dwelling, and count 2 charged burglary of a
vehicle. The only evidence indicating which count the defen-
dant pleaded guilty to was a minute order, which included two
notations indicating that the plea was to count 1. We noted
that a minute order was not among the documents, such as a
plea agreement or transcript of plea hearing, listed by the
Supreme Court in Shepard v. United States, 544 U.S. 13, 16
(2005), as being proper subjects of consideration in applying
a modified categorical approach. We pointed out, however,
that the Shepard “list was illustrative; documents of equal
reliability may also be considered.” 548 F.3d at 701. We then
held that the minute order could be considered:
The clerk’s minute order easily falls within the cate-
gory of documents described [in Shepard]: It’s pre-
pared by a court official at the time the guilty plea
is taken (or shortly afterward), and that official is
4
This question was left open in our recent decision in Ramirez-
Villalpando v. Holder, 645 F.3d 1035, 1041 n.1 (9th Cir. 2011).
20790 KWONG v. HOLDER
charged by law with recording the proceedings accu-
rately.
Id. at 702. We rejected the defendant’s argument that the min-
ute order cannot be considered because there is no evidence
that it was shown to the parties:
[I]t’s enough that the minute order was prepared by
a neutral officer of the court, and that the defendant
had the right to examine and challenge its content,
whether or not he actually did. Having failed to chal-
lenge or correct the minute order in state court—
perhaps because there wasn’t a basis for doing so—
Snellenberger is now bound by what it says: He
pleaded nolo contendere to the burglary of a dwell-
ing. . . .
Id.
[5] Snellenberger did not explicitly overrule Navidad-
Marcos, but it is clear to us that its reasoning is inconsistent
with that decision. Everything that the en banc court said of
the minute order in Snellenberger applies to the abstract of
judgment in Kwong’s case. As the California Supreme Court
has stated:
[T]he abstract is a contemporaneous, statutorily
sanctioned, officially prepared clerical record of the
conviction and sentence. It may serve as the order
committing the defendant to prison ([California
Penal Code] § 1213), and is “ ‘the process and
authority for carrying the judgment and sentence into
effect.’ [Citations].” . . . When prepared by the court
clerk, at or near the time of judgment, as part of his
or her official duty, it is cloaked with a presumption
of regularity and reliability. . . .
Defendant raises no basis for a conclusion that a
contemporaneous, officially prepared abstract of
KWONG v. HOLDER 20791
judgment which clearly describes the nature of the
prior conviction should not, in the absence of rebut-
tal evidence, be presumed reliable and accurate.
People v. Delgado, 183 P.3d 1226, 1234 (Cal. 2008). We
agree with, and adopt, this reasoning.
[6] At no point in his removal hearing or appeal to the BIA
did Kwong present any evidence that the abstract of judgment
was incorrect in specifying a plea to first-degree burglary, and
he makes no such contention here. The record therefore sup-
ports the IJ’s ruling, adopted by the BIA, that Kwong was
convicted of first-degree burglary.5 Because our precedent
establishes that a conviction for first-degree burglary under
California Penal Code § 459 is a crime of violence, Kwong is
removable as an alien convicted of an aggravated felony. See
8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b).
III. Motion to Remand—Ineffective Assistance of
Counsel
Kwong argues that the BIA erred in denying his motion to
remand, which was based principally on Kwong’s allegation
of his prior counsel’s ineffective assistance. “This court
reviews BIA denials of motions to reopen for abuse of discre-
tion . . . , but reviews purely legal questions, such as due pro-
cess claims, de novo.” Iturribarria v. INS, 321 F.3d 889, 894
(9th Cir. 2003). “[I]neffective assistance of counsel in a
deportation hearing results in a denial of due process under
5
The IJ also stated that the two-year sentence noted in the abstract of
judgment confirmed that the conviction was for first-degree burglary
because the maximum for second-degree burglary was one year. This
statement appears to be erroneous; if second-degree burglary results in a
sentence to state prison, the sentence may exceed one year, up to a maxi-
mum of three years. See Cal. Penal Code § 18(a); see also, e.g., People v.
Soto, 166 Cal.App.3d 770 (1985). The IJ also relied, however, on the nota-
tion of first-degree burglary, which we find sufficient to sustain her deci-
sion.
20792 KWONG v. HOLDER
the Fifth Amendment only when the proceeding is so funda-
mentally unfair that the alien is prevented from reasonably
presenting her case.” Id. at 899. To prevail, Kwong first “must
demonstrate that counsel [failed to] perform with sufficient
competence. Second, [he] must show that [he was] prejudiced
by [his] counsel’s performance.” Maravilla v. Ashcroft, 381
F.3d 855, 858 (9th Cir. 1994) (internal quotation marks and
citation omitted).
Kwong argues that the BIA applied the wrong standard in
judging prejudice from ineffective assistance of counsel,
because it stated that the evidence presented by Kwong in his
motion to reopen “falls far short of being sufficient to con-
vince us that the Immigration Judge would have granted that
form of relief if the evidence in question had been presented
at the hearing.” Kwong contends that the proper standard is
whether the missing evidence “may have affected the out-
come of the proceedings,” id. at 858-59, and that the BIA
accordingly erred in assessing whether that evidence “would
have” changed the result.
We need not reach that question, however, because the ini-
tial inquiry in assessing a claim of ineffective assistance is
whether the performance of counsel was “unconstitutionally
ineffective.” Id. at 858. The BIA made it quite clear that it did
not find any such deficiency; it reviewed the actions of coun-
sel and summarized its holding by stating: “In short, we find,
upon the facts of this case, that there was no ineffective assis-
tance of counsel, and thus necessarily there was not a showing
by the respondent that the assistance of counsel was so inef-
fective as to have impinged upon the fundamental fairness of
the hearing.”
[7] Our review of the record convinces us that the BIA did
not err in ruling that counsel’s performance was not constitu-
tionally deficient, particularly in light of the facts that counsel
had to work with.6 Counsel interrogated Kwong about
6
Kwong testified that, if he were returned to China, he would be denied
admission or locked up because he had abandoned his Chinese residency.
KWONG v. HOLDER 20793
Kwong’s fears about being returned to China and the reasons
for them. Counsel presented sufficient evidence in support of
Kwong’s claim for withholding of removal to permit the IJ to
make a reasoned decision on the merits of that claim. We con-
clude that there was no violation of due process.
PETITION FOR REVIEW DENIED.
In answer to inquiries by the IJ, Kwong testified that neither he nor any
member of his family had ever been arrested or detained by Chinese
authorities, that he had never openly criticized the government, and that
he belonged to no religious organization.