Solomon Belachew Mengesha v. Eric H. Holder Jr.

MEMORANDUM **

Solomon Mengesha petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of an Immigration Judge’s decision finding him removable based on his conviction for a controlled substance violation and denying his applications for asylum, withholding of removal, and cancellation of removal. Mengesha argues that the BIA was not permitted to rely on facts alleged in the charging document to conclude that his predicate conviction related to a federal controlled substance. We deny the petition for review.

Mengesha was convicted under Arizona state law of possession of a narcotic drug. “Count 1” of the criminal information charges that Mengesha “knowingly possessed or used cocaine base, a narcotic drug.” The judgment states that Mengesha pleaded guilty to the offense of “Count 1: Possession of Narcotic Drugs.” “[W]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.” Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2013) (per curiam). Because the judgment specifies that Mengesha pleaded…

FILED

NOT FOR PUBLICATION AUG 12 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOLOMON BELACHEW MENGESHA, No. 08-74316

Petitioner, Agency No. A029-496-524

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

SOLOMON BELACHEW MENGESHA, No. 11-70664 AKA Solomon B. Mengesha, Agency No. A029-496-524 Petitioner,

v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted May 14, 2014 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: McKEOWN and M. SMITH, Circuit Judges, and ROBART, District Judge.**

Solomon Mengesha petitions for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing his appeal of an Immigration Judge’s decision

finding him removable based on his conviction for a controlled substance violation

and denying his applications for asylum, withholding of removal, and…

dissenting:

I respectfully dissent from the majority’s denial of the petition for review. Because Mengesha pleaded guilty to the amended charge in the plea agreement, which did not specify a drug, the BIA *499 erred in finding that his 1998 conviction was a violation of a law relating to a controlled substance.

Our case law emphasizes that “[t]he government must prove by clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true,” including the drug underlying the state conviction. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir.2007) (internal quotation omitted). “[S]peculat[ing] as to the nature of the substance,” is “not enough” for the government to meet “its burden of proving that the conduct of which the defendant was convicted constitutes a predicate offense.Id. at 1079.

Generally, “where ... 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.” Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2013) (per curiam). However, we must “consider the charging documents in conjunction…