Young

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge B. FLETCHER. Partial Concurrence and Partial Dissent by Judge IKUTA.

OPINION

Petitioner Joseph Young petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming a final order of removability. The BIA held that Petitioner is ineligible for cancellation of removal because he has been convicted of an aggravated felony. With a differently configured majority concurring as to each of the following issues, we hold:

(1) Petitioner failed to exhaust the claim that his conviction was not for a violation of a law relating to a controlled substance within the meaning of 8 U.S.C. § 1227 (a)(2)(B)©. We therefore lack jurisdiction over that claim.

(2) The evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. § 1229b.

(3) Under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the…

concurring in part and dissenting in part, with whom SCHROEDER, PREGERSON, FISHER, and PAEZ, Circuit Judges, join:

I join the majority opinion except as to discussion section B.3. I respectfully dissent from the court’s decision to overrule Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir.2007), and Rosas-Castaneda v. Holder, 655 F.3d 875, 883-84 (9th Cir.2011). The majority view on this issue leads to a result that is unjust to lawful permanent residents seeking cancellation of removal and that Congress cannot have intended.

Our opinion in Sandoval-Lua is thorough and well-reasoned. In it we considered whether a lawful permanent resident who was removable based on a conviction for a controlled substance offense could seek cancellation of removal. SandovalLua, 499 F.3d at 1123-24 . We began by determining that Sandoval-Lua’s California conviction (under a statutory provision virtually identical to the one under which Young was convicted) was not categorically an aggravated felony because the California statute criminalizes conduct not covered by the federal Controlled Substances Act. Id. at 1128 . Next, we turned to the modified categorical approach and found, as in…

concurring in part and dissenting in part, with whom KLEINFELD, CLIFTON, and BEA, Circuit Judges, join:

In today’s splintered decision, a two-judge “majority” 1 holds that Congress in *993 tended strict and arbitrary evidentiary limitations to be read into the cancellation of removal statute, despite the fact that the statute clearly states an alien’s rights to introduce evidence and testimony. Correctly recognizing that the “majority’s” holding is absurd, five judges have voted to alleviate the inherent unfairness by redefining the statutory language to mean the exact opposite of what it actually says. Both approaches are wrong: both are contrary to the plain language of the statute, and both reach outcomes that are neither contemplated by Congress nor dictated by common sense. I therefore dissent from the en banc decision as a whole, and I write separately to demonstrate why this confusion could have been avoided if we had just followed what the statute says.

I

The question before the court is whether the BIA erred in holding that Joseph Young, a lawful permanent resident, was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). Young asserts that even if he is…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH CRISTOPHER YOUNG, aka  Joseph Christopher Young, No. 07-70949 Petitioner, v.  Agency No.

A035-029-889

ERIC H. HOLDER JR., Attorney

OPINION

General, Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted En Banc December 12, 2011—San Francisco, California

Filed September 17, 2012

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder, Betty B. Fletcher, Harry Pregerson, Andrew J. Kleinfeld, Susan P. Graber, Raymond C. Fisher, Richard A. Paez, Richard R. Clifton, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Graber; Partial Concurrence and Partial Dissent by Judge B. Fletcher Partial Concurrence and Partial Dissent by Judge Ikuta

11273 YOUNG v. HOLDER 11277

COUNSEL

Katherine Mayer Mangan, Mayer Mangan, APLC, San Diego, California; Robert W. Perrin, Latham & Watkins LLP, Los Angeles, California, for the petitioner.

Bryan S. Beier, Senior Litigation Counsel, United States Department of Justice, Washington, D.C., for the respondent.

Vincent J. Brunkow, Federal Defenders of…