Jose Ruiz-Vidal v. Loretta E. Lynch

Opinion by Judge KOZINSKI; Dissent by Judge REINHARDT.

OPINION

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.

I.

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&emdash;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.”…

dissenting:

■Petitioner was charged with sale of a controlled substance — a substance that the state alleged in the information was methamphetamine. He pled no contest to a lesser included offense — possession of a controlled substance. Petitioner stipulated that there was a factual basis for his plea, but explained nothing further regarding the offense. The question in this case is not whether Petitioner actually possessed methamphetamine, as opposed to a drug that is not punishable under federal law. If that were the question, this case would be straightforward, as “the record does not contain any serious suggestion that [Petitioner possessed] any substance other than [methamphetamine].” Medina-Lara v. Holder, 771 F.3d 1106, 1115 (9th Cir.2014).

The question instead, however, is whether the record provides clear, unequivocal, and convincing evidence that Petitioner was convicted of possessing methamphetamine. See Carachuri-Rosendo v. Holder, 560 U.S. 563, 576 , 130 S.Ct. 2577 , 177 L.Ed.2d 68 (2010) (“The text [of the Immigration and Nationality Act] thus indicates that we are to look to the conviction itself as our starting place, not to what might have or could have been…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE REYES RUIZ-VIDAL, No. 11-73433 Petitioner, Agency No. v. A034-639-824

LORETTA E. LYNCH, Attorney General, OPINION Respondent.

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

Argued and Submitted January 6, 2014—Pasadena, California

Filed June 17, 2015

Before: Stephen Reinhardt, Alex Kozinski and Richard R. Clifton, Circuit Judges.

Opinion by Judge Kozinski; Dissent by Judge Reinhardt RUIZ-VIDAL V. LYNCH

SUMMARY*

Immigration

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,…