Jose Ruiz-Vidal v. Loretta E. Lynch

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, ORDER AND Respondent. OPINION

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

Argued and Submitted January 6, 2014—Pasadena, California

Filed October 9, 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 withdrew its prior opinion and dissent, filed an amended opinion and dissent, denied a petition for panel rehearing and denied on behalf of the court a petition for rehearing en banc in a case in which the Board of Immigration Appeals found Jose Reyes Alberto Ruiz-Vidal removable because he was convicted of a controlled substance offense.

Denying Ruiz-Vidal’s petition for review, the panel held that he was removable because he was convicted of an offense relating to a controlled substance covered by the Controlled Substances Act, due…

Opinion by Judge KOZINSKI; Dissent by Judge REINHARDT.

ORDER

The opinion and dissent filed on June 17, 2015, and published at 789 F.3d 1065 , are hereby withdrawn and replaced by the amended opinion and dissent filed concurrently with this order. With these amendments, Respondent’s motion to amend the published decision is granted. The petition for panel rehearing is denied. Judge Reinhardt would grant it. The petition for rehearing en banc is denied. See Fed. R.App. P. 35. No further petitions for panel rehearing or rehearing en banc will be entertained.

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…

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…