Medina-Rodriguez v. Barr, No. 19-72681 (9th Cir. 2020)
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The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable for having committed an aggravated felony by violating California Health & Safety Code 11359. The panel held that petitioner's violation of section 11359 constitutes an aggravated felony for purposes of the INA, as decided by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014).
The panel joined the Second, Third, and Eleventh Circuits in deciding that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner's underlying criminal offense, not at the time of the petitioner's removal. Because the California and federal definitions of marijuana were identical at the time of petitioner's guilty plea, the panel concluded that his conviction was a categorical match with the generic federal offense. Therefore, petitioner is removable. The panel also affirmed the BIA's decision to deny petitioner's claim for deferral of removal under the CAT.
Court Description: Immigration Denying Noe Medina-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) in determining whether a state conviction is a categorical match for its federal counterpart, the proper point of comparison are the two drug schedules in effect at the time of the conviction; 2) Medina-Rodriguez’s 2011 conviction for possession for sale of marijuana, in violation of California Health & Safety Code § 11359, was a drug trafficking aggravated felony because the state and federal schedules defined marijuana the same way at the time of his conviction; and 3) substantial evidence supported the agency’s denial of deferral of removal under the Convention Against Torture (CAT). The panel concluded that it was bound by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014), in which the court held that a conviction under § 11359 was a drug trafficking aggravated felony because § 11359 was a categorial match to a federal marijuana offense under 21 U.S.C. § 841(a)(1). The panel also concluded that, even if it were not bound, neither of the two California decisions Medina-Rodriguez relied on supported his argument that Roman-Suaste should be considered en banc. Medina-Rodriguez also contended that § 11359 is broader than the generic federal offense because the 2011 MEDINA-RODRIGUEZ V. BARR 3 definition of marijuana pursuant to California law includes types of marijuana not criminalized pursuant to current federal law. The panel noted that precedent demands (and the parties agreed) that the California definition of marijuana at the time of Medina-Rodriguez’s conviction was appropriate for the categorical analysis comparison. However, the parties disagreed about whether the federal definition of marijuana to be applied should be that at the time of Medina-Rodriguez’s conviction, or at the time of his removal. Joining the Second, Third, and Eleventh Circuits, the panel held that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner’s underlying criminal offense, not at the time of the petitioner’s removal. The panel explained that the Supreme Court has assumed that the time-of-conviction federal drug schedule is the appropriate one for the categorical approach comparison, and that such a rule comports with the purposes of the categorical approach, namely providing the defendant with notice of possible future immigration consequences. Moreover, the panel explained that using the time-of-removal federal drug schedule would undermine a defendant’s ability to understand those immigration consequences. Applying the time-of-conviction rule, the panel held that Medina- Rodriguez’s conviction qualifies as an aggravated felony that made him removable because the California and federal definitions of marijuana were identical at the time of his conviction. The panel also held that the BIA had substantial evidence to conclude that Medina-Rodriguez did not meet his burden on his CAT claims. Medina-Rodriguez contended that it is 4 MEDINA-RODRIGUEZ V. BARR more likely than not that he will be tortured in Mexico based on his physical disability. The panel noted that the reports Medina-Rodriguez cited primarily concerned individuals with mental health disabilities, and that the absence of evidence that individuals with physical disabilities are not being tortured is not enough to meet the standard for CAT relief. The panel further explained that the articles Medina- Rodriguez cited pertaining to hardships faced by those with physical disabilities in Mexico did not prove it is more likely than not that he will be tortured. Medina-Rodriguez also asserted that his tattoos make it more likely than not he will be tortured at the hands of a drug cartel with either the direct involvement or acquiescence of the Mexican government. The panel explained that Medina- Rodriguez’s claim relied on a series of events, all of which must happen for torture to occur. The panel wrote that, although Medina-Rodriguez’s tattoo of Santa Muerte may increase the probability that a gang seeks to recruit him, the evidence did not establish that any step in this hypothetical chain of events is more likely than not to happen, let alone that the entire chain will come together to result in the probability of torture.
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