Javier Noriega-Lopez v. John Ashcroft, Attorney General Charles Demore Lori Scialabba

Javier Noriega-Lopez is a citizen and national of Mexico admitted to the United States as a lawful permanent resident alien about thirty-six years ago. In March 2000, Noriega-Lopez was convicted of felony possession of heroin for sale in violation of California Health and Safety Code § 11351, an offense classified as an aggravated felony and a controlled substance offense under the Immigration and Nationality Act (“INA”). See 8 U.S.C. §§ 1227(a)(2)(A)(iii); (B)(i). Shortly thereafter, the Immigration and Naturalization Service (“INS”) issued a Notice to Appear charging Noriega-Lopez with removability for his crime. Noriega-Lopez denied that he had been convicted as stated in the Notice to Appear. At a removal hearing on July 17, 2000, the Immigration Judge (“IJ”) reviewed the INS’s proffer of documentation and concluded that the agency’s showing was inadequate to prove by clear and convincing evidence that Noriega-Lopez had been so convicted. See 8 U.S.C. § 1229a(c)(3)(A) (“the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable”). The IJ focused on the fact that…