Alvarado v. Holder, Jr., No. 10-71236 (9th Cir. 2014)
Annotate this CasePetitioner pled guilty to attempted possession of a dangerous drug, in violation of Arizona Revised Statute 13-3407(A)(1), and was found removable as an alien convicted of a violation of state law relating to a controlled substance. The court concluded that it was jurisdictionally barred from reaching the merits of petitioner's claim that the Arizona definition of attempt is categorically broader than the federal generic definition because he failed to exhaust this argument before the BIA. The court rejected petitioner's argument that the controlled substance at issue in his Arizona conviction cannot be established by applying the modified categorical approach. The court was confident based on circumstantial evidence that, although it could not consider the indictment because the original count as originally charged was dismissed and he had pled to a lesser charge in a modified count, a page describing the substance of methamphetamine was specifically incorporated into the plea agreement as the factual basis for petitioner's guilty plea. Accordingly, the court denied in part and dismissed in part.
Court Description: Immigration. The panel dismissed in part and denied in part Luis Felipe Juarez Alvarado’s petition for review of the Board of Immigration Appeals’ decision finding him removable because his conviction for attempted possession of a dangerous drug, in violation of Arizona Revised Statute § 13-3407(A)(1), constituted a violation of state law relating to a controlled substance. The panel dismissed in part for lack of jurisdiction, holding that Alvarado waived before the BIA his argument that Arizona’s attempt statute is categorically broader than the federal generic definition. The panel found that, even construed liberally, his pro se brief to the BIA did not raise a general argument about attempt, and that neither the IJ nor the BIA addressed the attempt element of his conviction. The panel also held that Alvarado was not excused from the exhaustion requirement pursuant to 8 U.S.C. § 1252(d)(1), because his argument was not so entirely foreclosed that no remedies were available as of right before the agency. The panel also denied in part, holding under the modified categorical approach that the government met its burden to prove removability based on attempted possession of methamphetamine, a controlled substance offense. The panel held that although it could not consider the indictment because the count as originally charged was dismissed and Juarez Alvarado pled to a lesser charge in a modified count, it could consider a page in the indictment that described the substance as methamphetamine because the statement was specifically incorporated into Alvarado’s plea agreement as the factual basis supporting his guilty plea.
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