Argued and Submitted, Pasadena, California January 6,
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A034-639-824.
The panel denied Jose Reyes Alberto Ruiz-Vidal's petition for review of the Board of Immigration Appeals' decision finding him removable because he was convicted of possessing a controlled substance which could be identified as methamphetamine.
The panel held that Ruiz-Vidal was removable as an aggravated felon due to his no contest plea to simple possession under California Health & Safety Code § 11377(a), a lesser included offense to Count 1 of the Information, sale of methamphetamine in violation of CHS § 11379(a). Applying the modified categorical approach, the panel held that clear and convincing evidence in documents permissible for review established that Ruiz-Vidal pleaded to and was convicted of possession of methamphetamine.
Dissenting, Judge Reinhardt would ask rather whether the record provided clear, unequivocal, and convincing evidence that Ruiz-Vidal was convicted of possessing methamphetamine, and would determine whether his plea to possession of a controlled substance, as a lesser included offense to sale of methamphetamine, necessarily constitutes a conviction for possession of methamphetamine. Judge Reinhardt wrote that the majority's adoption of a new exception to United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), for pleas to lesser included offenses as memorialized in a plea colloquy is unwarranted and unwise.
Christopher G. Clark (argued), Catherine R. Holmes and Gregory L. Shiferman, Boston, Massachusetts, for Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney General, Richard M. Evans and Mary Jane Candaux, Assistant Directors, Michael C. Heyse (argued) and Virginia Lum, Attorneys, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
Before: Stephen Reinhardt, Alex Kozinski and Richard R. Clifton, Circuit Judges. Opinion by Judge Kozinski; Dissent by Judge Reinhardt.
KOZINSKI, Circuit Judge
Jose Reyes Alberto Ruiz-Vidal, a native and citizen of Mexico, has lived in the United States since August 1976 as a lawful permanent resident, but he hasn't behaved himself. Among other transgressions, he's been charged with methamphetamine-related crimes at least twice before and, as a result, has repeatedly faced deportation proceedings. We're tasked with reviewing his latest dalliance. We consider whether he is removable due to his no contest plea to a lesser included offense when we apply the modified categorical approach.
In 2009, California filed an Information charging Ruiz-Vidal with sale and possession for sale of a controlled substance, which the Information identified as methamphetamine. Ruiz-Vidal pleaded no contest to simple possession--a lesser included offense of the sale charge. He was sentenced to time served and five years felony probation.
The Department of Homeland Security served Ruiz-Vidal with a Notice to Appear, and an Immigration Judge concluded that Ruiz-Vidal was removable because he was convicted of " a controlled substance offense which can be identified as methamphetamine." He appealed to the Board of Immigration Appeals, which agreed with the ...