Jose Lopez-Vasquez v. Eric H. Holder Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LOPEZ-VASQUEZ, Nos. 08-71950 Petitioner, 08-74867

v. Agency No.

A076-625-020

ERIC H. HOLDER, JR.,*

Attorney General, Respondent. OPINION

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

Argued and Submitted November 8, 2012—Pasadena, California

Filed February 1, 2013

Before: Myron H. Bright,** Susan P. Graber, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta; Concurrence by Judge Bright

* Eric H. Holder, Jr., is substituted for his predecessor Michael B. Mukasey, as Attorney General. Fed. R.App. P. 43(c)(2).

** The Honorable M yron H. Bright, Senior Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. LOPEZ-VASQUEZ V . HOLDER

SUMMARY***

Immigration

The panel denied Jose Lopez-Vasquez’s petition for review of the Board of Immigration Appeals’ decision denying adjustment of status on account of his felony conviction for possession of marijuana for sale, in violation of California Health & Safety Code §…

Opinion by Judge IKUTA; Concurrence by Judge BRIGHT.

OPINION

Jose Lopez-Vasquez petitions for review of the Board of Immigration Appeals’ (BIA) denial of his application for adjustment of status and its denial of his motion to reopen based on new evidence. The BIA concluded that Lopez-Vasquez was ineligible for adjustment of status because of a 1997 conviction for possession of marijuana for sale in violation of California Health & Safety Code section 11359. Lopez-Vasquez contends that the 1997 conviction was actually for simple possession of marijuana in violation of Health & Safety Code section 11357 and that, as a result, he is eligible for relief under Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir.2000), overruled prospectively by Nu *1074 nez-Reyes v. Holder, 646 F.3d 684 , 690 (9th Cir.2011) (en banc). We deny both petitions.

I

In order to understand Lopez-Vasquez’s arguments, it is first necessary to understand the interplay between the applicable statutory framework and our case law.

A

The Attorney General may adjust the status of an alien if “the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.” 8…

concurring:

I agree that the record is unclear as to whether the state court changed Lopez-Vasquez’s offense of conviction to a violation of section 11357, a “wobbler” which could have been deemed a misdemeanor. I also agree that Lopez-Vasquez must do more than prove that the record is inconclusive. But because the record is incomplete and unclear, I believe that the proper outcome for this case is to instruct the BIA to permit the reopening of the case before the Immigration Judge. This would allow LopezAVasquez the opportunity to attempt to produce evidence from California officials showing that the state court changed Lopez-Vasquez’s offense of conviction to simple possession of marijuana under section 11357.

*1081 Lopez-Vasquez is not entitled to relief here because he cannot satisfy the burden of proof; he can prove no more than an inconclusive record. Yet it seems unfair to deny Lopez-Vasquez the possibility of relief when there are some facts in the record to support his position. For example, at the July 13, 1998 state court status conference, the court acknowledged that simply reducing Lopez-Vasquez’s section 11359 conviction to a misdemeanor was a “legal…